In Harmelin v. Michigan, Justice Antonin Scalia pointed to the special danger inherent in governments using economic fines for punishment. Unlike other forms of punishment that cost the government money, fines are a revenue source. That source can act as gasoline that propels the government in search of prosecutions for fines in areas where previously it never would have searched.

Because of that, to use Justice Scalia’s words, “it makes sense to scrutinize governmental action more closely when the State stands to benefit.”

This concern and others are at play in Timbs v. Indiana, a case presently pending before the United States Supreme Court. Mr. Timbs is arguing the Excessive Fines Clause of the Eighth Amendment to the United States Constitution applies to the states. He is challenging Indiana’s civil forfeiture of his $42,000 Land Rover following an attempted small quantity drug sale. The value of the Land Rover is nearly four times the maximum criminal fine he could receive for his criminal conviction.

This case is part of a larger debate that is occurring nationwide over the use of civil asset forfeiture proceedings to seize private property. Civil asset forfeiture proceedings, also called civil in rem forfeiture proceedings, permit the government to seize property that it alleges is connected to criminal activity.

There is usually no state-level requirement that there be a conviction in the underlying criminal matter in order for the government to seize the property. A difficulty lies in the fact this is done in a civil proceeding, not a criminal one, with its lesser burden of proof, i.e., preponderance of the evidence. Sometimes it is not even done in a civil proceeding but in an administrative hearing with even less protections for the property owner.

There are other problems. These include innocent persons who have their property tied up in forfeiture proceedings and taken by the state, either permanently or for long periods of time, because unbeknownst to them someone such as a family member used their car for an illegal purpose.

The Excessive Fines Clause already applies to civil asset forfeiture proceedings instituted by the federal government. The question in Timbs is whether it applies to these same proceedings brought by the states.

The Supreme Court has already ruled that most provisions of the Bill of Rights apply to the states through the Fourteenth Amendment, which bars states from depriving persons of “life, liberty, or property without due process of law.” This process of applying the first 10 Amendments to the states through the Fourteenth Amendment is referred to as “incorporation.”

During oral argument in Timbs this past November, the Justices sounded skeptical of Indiana’s arguments that the Excessive Fines Clause did not apply to the states. Justice Neil Gorsuch, an appointee of President Donald Trump, interjected at the beginning of Indiana counsel’s argument to express exasperation at Indiana’s argument that the Clause should not incorporated against the states: “most of the incorporation cases took place in like the 1940s. And here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on, General.”

Fellow Trump appointee Justice Brett Kavanaugh likewise seemed perplexed: “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”

Justice Gorsuch appeared to go so far as to suggest that if the Clause does apply, Indiana would also lose the case on the merits of whether the seizing of the Land Rover was in fact excessive.

Two federal circuits and 14 state high courts have already held that the Excessive Fines Clause applies to the states. Questions from Justices Gorsuch and Kavanaugh and others suggest the Supreme Court may soon follow suit and affirm those courts took the correct path.

Interestingly, only four state courts have held that the Clause is not applicable to state actions. Mississippi is one of them.

Some may wonder how far a government might go in its justifications of civil asset forfeiture and arguments that it is not excessive. Some may further wonder whether opponents of the process are a bit too paranoid of potential abuses of power.

In response to those possible sentiments, look no further than Indiana counsel’s argument before the Supreme Court – he argued that it would not be excessive for the government to seize an automobile for the driver exceeding the speed limit by five miles per hour.

As Justice Scalia noted, when profit is a motive there is special reason to scrutinize the exercise of government power. The use of civil asset forfeiture proceedings has increased significantly in modern times as a fundraising source for local governments and law enforcement agencies.

This is problematic, and Eighth Amendment protections are needed to protect against what Chief Justice John Roberts termed “the terrifying force of the criminal justice system.”