In a case that received wide publicity in February, Timbs v. Indiana, the U.S. Supreme Court ruled that the Eighth Amendment’s Excessive Fines Clause applies to the States through the Fourteenth Amendment’s Due Process Clause.

Tyson Timbs was convicted in Indiana of a drug offense, and sentenced to one year of home detention and five years of probation.

At the time of his arrest, police seized his Land Rover SUV, which he had purchased for $42,000 with proceeds from an insurance policy after his father died.

After his conviction, Indiana sought civil forfeiture of Timbs’ vehicle because it had been used to transport the drugs.

The trial court denied forfeiture on grounds that forfeiting a $42,000 vehicle was grossly disproportionate to the gravity of the offense under the Eighth Amendment’s Excessive Fines Clause, especially since the maximum criminal fine for the offense was only $10,000.

The Indiana Supreme Court reversed on grounds that the Excessive Fines Clause constrains only federal action and is not applicable to the States.


The Supreme Court, in an outcome endorsed by all nine justices, held that the Excessive Fines Clause does apply to the States.

A Bill of Rights protection is incorporated if it is “fundamental to our scheme of ordered liberty” or “deeply rooted in this Nation’s history and tradition,” the Court said.

The Eighth Amendment’s Excessive Fines Clause limits the government’s power to extract payments, whether in cash or in kind, as punishment for an offense, the Court said.

“[T]he protection against excessive fines has been a constant shield throughout Anglo-American history,” the Court said. This protection dates from at least the time of the Magna Carta in 1215, was firmly rooted in English law, and was later adopted by many American colonies. By the time the Fourteenth Amendment was ratified, 35 of 37 States expressly prohibited excessive fines.

“In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming,” the Court said.

The Court rejected Indiana’s argument that the Excessive Fines Clause does not apply to civil in rem forfeiture because the Clause’s specific application to such forfeitures is neither fundamental nor deeply rooted.

“In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed – not each and every particular application of that right – is fundamental or deeply rooted,” the Court said.

The Court noted that it had previously held that banning people convicted of sex crimes from accessing certain social media websites violated the First Amendment’s Free Speech Clause. In that case, “[w]e did not inquire …. whether the Free Speech Clause’s application specifically to social media websites was fundamental or deeply rooted.”

The Court remanded the case for further proceedings.

Concurring Opinions

Justice Thomas concurred in the outcome, but on different grounds. He agreed that the Excessive Fines Clause was applicable to the States, but he believed this was through the Fourteenth Amendment’s Privileges or Immunities Clause, not the Due Process Clause.

The Due Process Clause should apply to protect only “some baseline procedures” or to ensure that States follow the “law of the land,” i.e., their written constitutional or statutory provisions. Timbs did not claim that Indiana failed to do this, Thomas noted.

Thomas said that the Court’s Due Process jurisprudence has been unable to “adhere to any guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not.”

“And because the Court’s substantive due process precedents allow the Court to fashion fundamental rights without any textual constraints, it is equally unsurprising that among these precedents are some of the Court’s most notoriously incorrect decisions,” such as Roe v. Wade, and Dred Scott v. Sandford, Thomas said.

The Fourteenth’s Amendment’s Privileges or Immunities Clause should be used in incorporation cases, Thomas said. “When the Fourteenth Amendment was ratified, the terms ‘privileges’ and ‘immunities’ had an established meaning as synonyms for ‘rights.’”

“The question here is whether the Eighth Amendment’s prohibition on excessive fines was considered such a right,” Thomas said. “The historical record overwhelmingly demonstrates that it was.”

Justice Gorsuch, in a separate concurrence, said that “the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause,” but “nothing in this case turns on that question.”