Timbs v. Indiana: Toward the Regulation of Mercenary Criminal Justice

Abstract

In Timbs v. Indiana, the Supreme Court unanimously held that the Eighth Amendment's Excessive Fines Clause is an incorporated protection under the Fourteenth Amendment and therefore regulates state and local governments. The unanimous result, wedding liberal and conservative Justices alike, was backed by an ideologically diverse group of amici, including the ACLU, the U.S. Chamber of Commerce, and the Cato Institute. The government practice giving rise to the litigation — civil asset forfeiture — has been subject to widespread criticism, fueled by troubling accounts of what has come to be known as “policing for profit.” Reaction to Timbs ran the gamut from regarding it as “huge” to being a decision having little impact. As I discuss in this symposium contribution, Timbs is important both because it provides a new federal constitutional basis to regulate government targeting of criminal defendants for revenue generation and signals the Court’s broader recognition of the problematic nature of the practice.