DTCI: Civil forfeiture and the Eighth Amendment

This is the first of a two-part article. The second will appear in the next issue of Indiana Lawyer on the DTCI News pages.

Indiana has been at the forefront of recent developing caselaw regarding the constitutionality of the civil forfeiture of property as a result of a forfeiture action to seize a $40,000 car that was allegedly used in the commission of a drug offense. The case ultimately made its way to the United States Supreme Court in Timbs v. Indiana, 139 S. Ct. 682 (2019), where the United States Supreme Court held that the Excessive Fines Clause of the Eighth Amendment applies to the states as incorporated by the 14th Amendment. The Supreme Court remanded the case to Indiana, and after briefing and oral argument, the Indiana Supreme Court issued its opinion Oct. 28, 2019, establishing a framework for trial courts to consider in assessing civil in rem forfeitures. State v. Timbs, 134 N.E.2d 12 (Ind. 2019). Attorneys representing entities that engage in civil forfeitures should familiarize themselves with the ruling to ensure their clients comply with the ruling and the entity’s constitutional obligations.

The basis of the civil in rem forfeiture was this: Timbs used his $40,000 Land Rover to drive to a site where he arranged to sell the drugs in his possession and then to drive to another site to purchase more. The state charged Timbs with two felony counts of dealing in controlled substances and one felony count of conspiracy to commit theft. Timbs pleaded guilty to one of the two felony dealing counts and the conspiracy to commit theft charge, and the state dismissed the other felony dealing count. Timbs received a suspended sentence and an order to pay a $400 drug-and-alcohol program fee, a $385 reimbursement to the drug task force and $418 in court costs and other fees.

The state of Indiana pursued a concurrent civil forfeiture complaint for the Land Rover. The trial court found the vehicle’s worth was four times the maximum statutory fine for the offense and believed that amount was grossly disproportionate to the offense. The court held it violated the Eighth Amendment’s proscription of excessive fines. The state appealed the trial court’s ruling and the Indiana Court of Appeals affirmed. The Indiana Supreme Court accepted the state’s transfer petition. The Indiana Supreme Court reversed, finding the Eighth Amendment’s Excessive Fines Clause had not been incorporated against the states. Timbs sought certiorari to the United States Supreme Court, which reversed the Indiana Supreme Court, found the 14th Amendment had incorporated the Excessive Fines Clause of the Eighth Amendment against the states, and remanded it back to the Indiana Supreme Court.

After outlining this procedural history, the Indiana Supreme Court began its analysis of the issue by addressing whether a civil forfeiture of property can properly be considered a fine. Despite the parties conceding the forfeiture was at least partly punitive in nature — and therefore a fine — the court analyzed the issue to make the determination on its own. The court reviewed Indiana Code § 34-24-1-1, authorizing property related to criminal offense forfeiture. Based on Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993), the Indiana Supreme Court found § 34-24-1-1 is partially punitive by design and therefore a fine. Section 34-24-1-1 is punitive because it focuses on the owner’s involvement in the crime and contains an innocent-owner exception. Further, § 34-24-1-1 does not tie its forfeiture abilities to a fixed sum or the damage caused by the crime. Finally, the court found the remedial nature of some forfeitures did not preclude their being fines, but instead was a consideration on whether the fines were excessive. Finding the Land Rover forfeiture a fine, the court considered whether it was an excessive fine in violation of the Excessive Fines Clause of the Eighth Amendment.

The Indiana Supreme Court rejected the state’s argument that any instrumentality of a crime (i.e., property used in the crime) was forfeitable and not an excessive fine. The court found only one court had adopted such a position; most courts had adopted proportionality tests to address the issue. While those tests varied by jurisdiction, the majority considered several factors: the nexus between the property and the offense, the offense’s gravity, the penalty’s harshness and the claimant’s culpability. To remain constitutional under the Excessive Fines Clause, the court found the forfeiture must be based on the instrumentality’s use as the means to commit a criminal offense. Moreover, the forfeiture penalty’s harshness must be proportional to the offense’s gravity and the claimant’s culpability for the property’s misuse. Once the governmental entity establishes by a preponderance of the evidence that the property is forfeitable because it was used as a means to commit a criminal offense, the burden shifts to the claimant to prove by a preponderance of the evidence that the statute under which forfeiture is sought is unconstitutional or was unconstitutionally applied.

In order for the governmental entity to establish the property is forfeitable, it must establish the property was a criminal instrumentality. The court in Timbs found the governmental entity must rely on the provisions of the specific statute under which it is seeking forfeiture to support its claim. The state conceded at oral argument that it was seeking forfeiture based only on the May 6, 2013, offense, so it had to establish that the vehicle was involved in that instance as required by Indiana Code § 34-24-1-1. The court stated that if the state had not conceded that fact, the court would have had to analyze the other instances where the vehicle was used and whether it could be proven to have been an instrumentality of the crime. But given the concession, it need analyze only that one instance.

The Indiana Supreme Court found fairly easily that the Land Rover was an instrumentality of the crime because Timbs drove the vehicle to deliver the drugs and drove away with the funds he received. The court listed examples where the Supreme Court had found property to be a crime’s instrumentality, such as where a person used a vehicle to conceal goods for which he had avoided paying taxes and a where person used scales to weigh illegal drugs. The court cited other cases where property may not be an instrumentality, such as divisible property or a property merely present but not involved in the crime’s commission.•

• R. Jeffrey Lowe is a partner in the New Albany office of Kightlinger & Gray and is a member of the DTCI board of directors. The opinions expressed in this article are those of the author.