A Blog About Current Issues in White Collar Defense
Tyson KO’s Indiana: How a Self-Described Junkie Found Nine New Friends in the Supreme Court
There’s a saying that many prosecutors know as an exhortation to “take the long view” and to use discretion even where the law seems to permit an aggressive approach—it’s that “bad facts make bad law.” In the case of Indiana prosecutors seeking to cash in on a car seizure from a low-level drug dealer, their failure to back-down from a harsh forfeiture unified the Supreme Court at their expense.
Tyson Timbs was a subsistence-level heroin dealer whose profits were mainly poured back into his own veins. When his father passed away, Timbs used the life insurance policy proceeds to buy a $42,000 Land Rover. In the five months between the purchase and his arrest, Timbs racked up 16,000 miles on the vehicle, presumably due to the distance between his home and his source of supply. It was undisputed that two controlled purchases of heroin by an informant (for 2 grams each, totaling a few hundred dollars) took place in the new car, and Timbs ultimately pleaded guilty to the trafficking. He was sentenced to a year of home detention, followed by five years of probation with addiction treatment.
After the sentencing, the state sought forfeiture of the Land Rover. State forfeiture law certainly allowed seizure and forfeiture of the car as an instrumentality of his drug sales, but the trial court found that the circumstances of the seizure (the funding source and the value of the car, in comparison to the penny- ante dope deals) violated the 8th Amendment, which provides that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” (emphasis added). The trial court noted that the maximum fine for the crime was $10,000, which may be a non-sequitur in terms of forfeiture law, but it certainly makes the point that the court simply found this seizure too harsh.
While the vast majority of the Bill of Rights has been incorporated into the states, the Supreme Court had never clearly ventured beyond dicta in applying the excessive fines clause to state proceedings. The Indiana Supreme Court, in noting that, specifically invited the Supreme Court to do so, but in the absence of that clarification, they stated their federalist intention to let Indiana jurisprudence continue to develop in the absence of federal preeminence on this issue.1
In today’s Supreme Court ruling on Timbs v. Indiana, 586 U.S. ____ (2019) a unanimous Supreme Court announced that previous rulings had, in fact, determined the 8th Amendment’s applicability to the states, and that the fact that Timbs’ case was an in rem forfeiture matter was a distinction without a difference when it came to the excessive fines prohibition. At heart, because forfeitures are at least in part punitive, the Court considers them subject to the same historical protections afforded to criminal sentences and fines.
One subject that seems to be quite capable of unifying the Supreme Court is prosecutorial overreach in the realm of forfeiture. Timbs comes on the heels of the Honeycutt decision,2 where the full Court overturned a harsh drug forfeiture pursued on a “joint and several liability” basis despite the dramatically lesser role of Mr. Honeycutt in his brother’s drug enterprise. Honeycutt tempered the aggressive use of joint liability in drug forfeitures with basic fairness. Timbs looked at unfair facts and injected constitutional scrutiny into the state forfeiture cases. Prosecutorial discretion, reasonableness, and just a general sense of fair play would have probably satisfied Mr. Honeycutt and Mr. Timbs long ago, quietly sending them down their rehabilitative roads without the Supreme Court rallying behind them with landmark decisions.
1 As a practical note to practitioners, do not forget parallel provisions in State constitutions. Mr. Timbs may well have won earlier had the Indiana version of the 8th Amendment been raised.
2 Honeycutt v. United States, 137 S.Ct. 1626 (2017).