What Timbs Does Not Say -

March 7, 2019

Timbs v. Indiana, 586 U.S. ___ (2019) (Ginsburg, J.).
Response by Suja A. Thomas
Geo. Wash. L. Rev. On the Docket (Oct. Term 2018)
Slip Opinion | SCOTUSblog

What Timbs Does Not Say

Timbs v. Indiana¹ isn’t a surprising case. Over time, the United States Supreme Court successively has decided that different parts of the Bill of Rights are incorporated against the states via the Fourteenth Amendment. In Timbs, the Court followed that series of cases by its decision to apply the Excessive Fines Clause of the Eighth Amendment to the states. What the Court failed to do was to mention the few rights that remain unincorporated—and to attempt to justify why.

In the case, Timbs pleaded guilty to the state offenses of dealing in a controlled substance and conspiracy to commit theft. Because Timbs had used a Land Rover SUV in the commission of the crime, Indiana sought civil forfeiture of the $42,000 vehicle. The trial court denied this request because $42,000 was over four times the maximum amount of the $10,000 fine that could be assessed against the defendant for his criminal conviction. Because this fine would be out of proportion with the crime, it would violate the Excessive Fines Clause of the Eighth Amendment. After the court of appeals affirmed the trial court’s decision, the Indiana Supreme Court decided that the Clause was irrelevant as it did not apply to the states and thus, Indiana.

In the relatively brief, nine-page opinion that followed from the United States Supreme Court, the Court explained when incorporation occurs and why the excessive fines provision was incorporated. As it had described elsewhere, a right applies to the states if it is “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.”²

Evaluating whether the Excessive Fines Clause was incorporated against the states, the Court first noted that the Eighth Amendment protections against excessive bail, excessive fines, and cruel and unusual punishment were all limitations on the government’s criminal law enforcement authority. The excessive fines provision—like the others previously incorporated—had a “venerable lineage.”³ The importance of a ban on excessive fines was recognized at least as far back as the Magna Carta in 1215, and years later, in 1689, the English Bill of Rights set forth this prohibition. Subsequently, in 1776, the Virginia Declaration of Rights adopted a similar provision. Other states followed, and by 1787, eight states had forbidden excessive fines. In 1791, this proscription was written into the Constitution in the Eighth Amendment of the Bill of Rights. Then, by the time of the ratification of the Fourteenth Amendment, 35 of 37 states had prohibited excessive fines, and the importance of the right was affirmed in congressional discussions on the abusive use of fines. After noting that today all of the states prohibit excessive fines, the Court declared that “the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming.”⁴ It is “fundamental to our scheme of ordered liberty,” and “deeply rooted in this Nation’s history and tradition.”⁵

After this discussion, the Court dismissed arguments that civil in rem forfeitures specifically would not be covered under the Clause and that it was necessary to show protections against them were fundamental to liberty or deeply rooted in our country. The former was addressed in Austin v. United States,⁶ and the latter misinterpreted the incorporation jurisprudence.⁷

Concurring, Justice Thomas echoed his past concerns about the expansion of the Due Process Clause beyond its rightful authority.⁸ He described how the Excessive Fines Clause was incorporated instead only under the Privileges and Immunities Clause of the Fourteenth Amendment.

The Court had recognized that there were “only ‘a handful’ of exceptions”⁹ to incorporation of the Bill of Rights against the states—which included the Sixth Amendment unanimity requirement determined after selective incorporation, under an odd circumstance involving a particular division of the justices.¹⁰ In McDonald v. Chicago, the Court had previously acknowledged that in addition to the unanimity requirement, it had decided against incorporation for the Fifth Amendment grand jury right and the Seventh Amendment civil jury right prior to selective incorporation—similar to the Second Amendment decisions prior to McDonald.¹¹ The incorporation of the remaining provisions of the Bill of the Rights—the Excessive Fines Clause and the quartering of soldiers—an unlikely issue in our modern world—had never been addressed.

So, after Timbs, what’s left practically? It’s only rights associated with juries. That leads to three questions. First, are these “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition?” Second, if so, should they be incorporated? And finally, will they be?

As to the first question, indeed, they are fundamental to our scheme of ordered liberty and deeply rooted in this Nation’s history and tradition. Each of these rights was well established in England, the history upon which we drew our rights, as well as in the colonies and the states at the time of the adoption of the Bill of Rights and the Fourteenth Amendment.¹²

Second, they should be incorporated. Much is at stake if the rights are not incorporated. First, several states do not require grand juries, and because of plea bargaining, very few actual jury trials occur in criminal cases. As a result, often, in effect no entity or person stands in the way of accusation or conviction by the state. So, if the right were applied to the states, people from the community on the grand jury could stand in the way of defendants being charged or convicted—protections that hardly exist in many jurisdictions.¹³ Second, most, if not all, states have significant monetary requirements for the right to a civil jury trial to kick in. Accordingly, more jury trials in civil cases could occur if this right were incorporated. Although there may be fear that incorporation of the civil jury right would be too costly for the states, states could handle the additional workload. The number of trials would not increase substantially because both parties will realize that they can lose at trial. Finally, for one state—Oregon—which does not presently require unanimity for criminal cases, incorporation could be significant for defendants who exercise their right to jury trial there.

Now, will the rights be incorporated? It’s unlikely. In McDonald, dissenting, Justice Stevens pointed out that the Court has refused to grant certiorari on the unanimity question.¹⁴ Also, in the case, the Court itself pointed out that stare decisis might stand in the way of incorporation of the remaining rights.¹⁵ This signal from the Court may prevent petitions for certiorari from being filed on those issues. With that said, there is no significant reason why other parts of the Bill of Rights—such as the Second Amendment Right to Bear Arms or the Excessive Fines Clause—should be incorporated but the jury rights should not be.¹⁶ In a different context, discussing the importance of the jury, Akhil Reed Amar has explained that several of the rights in the Bill of Rights would lose significant value without jury rights—such as the Fourth Amendment where a civil jury can later decide the issue of whether a search or seizure was reasonable.¹⁷

To me, what I call nonincorporation—the failure to incorporate jury rights that were deemed not incorporated before selective incorporation—shows that the Court doesn’t care about these rights in the Constitution. This is part of a bigger story where other constraints on the right to a jury trial—such as plea bargaining and summary judgment—have been accepted over time as a part of the status quo.¹⁸ It’s difficult to imagine what can happen to change this story about the jury. One thing is for certain—Americans are not aware that the right has disappeared.

There is one last thing to note. Interestingly, Indiana had its own constitution with an excessive fines provision. Timbs could have raised the same issue under this constitution but his lawyer did not raise it.¹⁹ Although now irrelevant in this case because of incorporation, Judge Jeffrey Sutton has written that scores of lawyers give up rights of individuals by not raising the rights that they have under their own state constitutions.²⁰

Suja A. Thomas is the Peer and Sarah Pedersen Professor of Law at the University of Illinois College of Law. She is the author of The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries (Cambridge Univ. Press 2016) and Nonincorporation: The Bill of Rights After McDonald v. Chicago, 88 Notre Dame L. Rev. 159 (2012). Her research has been discussed in the New York Times, Wall Street Journal, Washington Post, and National Law Journal.

No. 17-1091 (U.S. Feb. 20, 2019).
Timbs, slip op. at 3 (quoting McDonald v. Chicago, 561 U.S. 742, 767 (2010)).
Id. at 4.
Id. at 7.
Id.
509 U.S. 602 (1967).
Timbs, slip op. at 7–9.
See id. at 1–13 (Thomas, J., concurring).
Id. at 2 (majority opinion) (quoting McDonald, 561 U.S. at 764–65 & nn.12–13).
See id. at 3 & n.1.
McDonald v. Chicago, 561 U.S. 742, 765 n.13 (2010).
See Suja A. Thomas, Nonincorporation: The Bill of Rights After McDonald v. Chicago, 88 Notre Dame L. Rev. 159 (2012).
Of course, even when there are constitutional rights to an indictment by a grand jury, prosecutors often require waiver of the grand jury indictment when defendants plead guilty.
McDonald, 561 U.S. at 868 (Stevens, J., dissenting).
Id. at 784 n.30 (majority opinion).
Thomas, supra note 12, at 184–204.
See Akhil Reed Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. Davis L. Rev. 1169, 1171 (1995).
See Suja A. Thomas, The Missing American Jury: Restoring The Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries (2016).
See State v. Timbs, 62 N.E.3d 472, 475 n.4 (Ind. Ct. App. 2016) (“Because neither side addresses the Indiana Constitution, we base our opinion on the federal Excessive Fines Clause.”), vacated, 84 N.E.3d 1179 (Ind. 2017), vacated, No. 17-1091 (U.S. Feb. 20, 2019).
See Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018).

Recommended Citation
Suja A. Thomas, Response, What Timbs Does Not Say, Geo. Wash. L. Rev. On the Docket (March 7, 2019), https://www.gwlr.org/what-timbs-does-not-say/.