Comment by apo
7 years ago
It boggles the mind to think that forfeiture is alive and well today, some police departments even brag about the state-sponsored hooliganism they're committing, and the practice has never been seriously challenged in the Supreme Court.
This looks to be the defense:
The Indiana Supreme Court ruled against Mr. Timbs, on interesting grounds. It said the Eighth Amendment’s prohibition of excessive fines did not apply to ones imposed by states.
From the 14th Amendment Section 1, it's disturbing that the following isn't obvious to any high school graduate:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Equally disturbing is the thought that Illinois might just win this case anyway.
It's interesting to consider what might happen if reason prevails. A lot of people have lost a lot of property over the years to to forfeiture. I can't imagine all of them will pass on the opportunity for compensation and punishment.
To start, I am totally horrified by civil forfeiture, so please no one construe this as defending it.
But our personal opinions aside, I don't think the Indiana Supreme court decision is really very surprising from a legal perspective. The eight amendment is selectively incorporated and the excessive fines clause is not incorporated. The 14th amendment gave the courts the justification they needed to incorporate parts of the bill of rights, but for better or worse, not everything in the bill of rights has been incorporated yet, and there is nothing the Indiana supreme court can do about that.
It would certainly exceed their legal jurisdiction for a state court to decide that a federal constitution amendment is incorporated.
And while I hope this case prompts SCOTUS to fully incorporate the 8th amendment, we should also be demanding more of our state governments. Federalism gives states the power. The power to do bad, but also the power to do good. Why is that we so often have to depend on federal courts to protect our rights?
Why don't the legislators of Indiana provide protections against excessive fines in their own constitution, and why do their citizens not demand it? We all want the SC to swoop in and save the day, but we should also face these questions and figure out what we need to do as a society to change this.
The eight amendment is selectively incorporated and the excessive fines clause is not incorporated.
Interesting - what does "incorporation" mean in this context?
> The incorporation doctrine is a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment.
https://www.law.cornell.edu/wex/incorporation_doctrine
The linked document contains a table explaining which parts of the bill of rights have been incorporated.
I can tell you from experience Fort Wayne Indiana is one of those departments that brag about it.. “LOOKS LIKE WE GETTING NEW TAZERS!!”