On Wednesday, February 20, the U.S. Supreme Court ruled unanimously that the Constitution’s Eighth Amendment protects citizens against excessive fines and civil forfeitures at not only the federal but also at the state and local levels. The case was brought by Tyson Timbs of Indiana whose car was seized after he was arrested for selling drugs. In the Q&A that follows, Stanford Law Professor Robert Weisberg discusses the problem of civil forfeitures and excessive fines in the state and local criminal justice system and the potential impact of this decision.

How extensive is the problem of civil forfeitures and excessive fines at the state and local levels of the criminal justice system? Is this a big problem?

It is huge. And a shout out here to the major national scholar on the subject, Professor Beth Colgan of UCLA, formerly a Grey Fellow at SLS.  Recent studies have exposed the almost invisible lower level of criminal justice, where people charged with crimes, most often misdemeanors, are hit with large fines and, as in the Timbs case, forfeitures. But we also see a bizarre array of administrative fees, including, paradoxically, a fee to have the services of a public defender if you are indigent, or even jail fees or fees for the services of your probation officer. There’s also often a requirement of payment into restitution funds even when the crime had no victim. Worse yet, these penalties have a way of leading to new jail time where the nonpayment is said to be “willful.”

What typically happens to the money and items seized by local and state police in criminal cases?

Local police see these as a revenue source, as was notoriously exposed in Ferguson, Missouri. And often the revenue from these fees becomes a de facto tax to support local agencies more widely.

Does this ruling solve that problem? And will it be retroactive?

The ruling by itself tells us nothing new about what is a “fine” and when it is “excessive.” All it says is that whatever the “excessive fines” clause of the Eighth Amendment means, it means the same thing for the states as it does for the federal government.  But by clarifying this much, the ruling will encourage far more claims to be brought and will likely lead to much more judicial scrutiny of these local practices.

As for applying to older cases, the issue of retroactivity of criminal law for criminal procedure cases is very convoluted, and maybe too much in the weeds even for law professors to love. Very roughly speaking, new “procedural” decisions favoring defendants rarely apply retroactively, but “substantive” ones (like declaring a certain criminal law wholly unconstitutional) might apply retroactively. How this case fits in remains to be seen.

Why is there a disconnect in the way that federal and local/state authorities handled this?

Going back to 1791, the Bill of Rights only served to restrict the federal government. A century and a half later, piece by piece many (not all) of provisions of the Bill of Rights were deemed to be so “fundamental” as to  be “incorporated” into the due process clause of the post-Civil War Fourteenth Amendment, and hence applicable to the states. Until that happens for a particular right, states are under no obligation to be as generous in affording rights, and, as a political matter, often feel no incentive to do so. That’s a simplistic nutshell, but roughly true.

And why do you think it took until 2019 to reconcile that difference with seizures and excessive fines? Was there an uptick in seizures?

Seizures have been around forever. This may just be one of these constitutional issues that took its time percolating up. Hard to say whether the journalistic and academic  exposure of these practices influenced the Court.

Might this ruling have any unintended legal consequences? How do you see the law developing in this area?

If the courts address these practices piecemeal (because the categories of penalties and the processes for dioceses for enforcing them vary so much), we might get a whole new textbook worth of, shall we say, highly nuanced (or very confusing) doctrine. But also merely the prospect of judicial scrutiny might cause local jurisdictions to clean up their acts in this area.

Robert Weisberg is the Edwin E. Huddleson, Jr. Professor of Law and Faculty Co-Director of the Stanford Criminal Justice Center. His scholarship focuses on criminal law, criminal procedure, white collar crime, and sentencing policy.