by Timothy Sandefur
September 11, 2018
The Fourteenth Amendment was designed to protect people against wrongdoing by their own state governments. But in the 150 years since its enactment, that promise has only been partially fulfilled. For one thing, courts have failed to apply all of the protections in the federal Bill of Rights against the states. (Not until 2010 did the Supreme Court require states to respect the right to own firearms, for instance.) Now, in a case called Timbs v. Indiana, the Court is being asked to decide whether the prohibition on “excessive fines” found in the Eighth Amendment should also be applied to state and local governments. Along with our friends at the Cato Institute, the DKT Liberty Project, and others, we’ve filed a friend of the court brief arguing that the answer is yes.
The question has become increasingly important in recent years, thanks to efforts by city and state officials who are increasingly using law enforcement as a mechanism for government fundraising. Perhaps the most egregious example of this is “asset forfeiture”—a device whereby the government can seize property from people without even proving that they’ve done anything wrong. And forfeiture has become an effective way to increase funding of law enforcement agencies without having to ask the voters what they think. In 2004, we warned that forfeiture was on the rise in Arizona—and today, it has become so common that in 2014, the federal Departments of Justice and Treasury seized over $5 billion in assets from Americans. That’s more than was stolen through burglaries in that year.
Because local governments can often keep the money seized through asset forfeiture, the practice has been labeled “policing for profit”—and it results in terrible incentives that encourage law enforcement agencies to focus on increasing revenue rather than on actually combating crime.
It’s not just about asset forfeiture, though. Local governments have increasingly also come to view ordinary fines as a way of increasing their revenue—and they have begun imposing crushing penalties on innocent conduct that harms nobody. One point revealed by investigation of the causes of civil unrest in Ferguson, Missouri, found that fines for insignificant violations had become such a regular source of revenue for the city that a fifth of the city’s entire income came from fines. “Pressure to raise revenue led to practices such as tacking abusive and potentially illegal fees onto fines for minor infractions and using arrest warrants and driver’s license suspensions primarily as tools to compel payment of fines rather than to protect the public or mete out justice,” writes Goldwater’s Mark Flatten in his recent report on Arizona’s city court system (a system not unlike the one addressed in the Ferguson report). Fines can have a snowball effect, so that a person unable to afford a fine will be penalized again and again, closing the doors of opportunity needed by those who may have a minor crime on their record.
And cities have even begun criminalizing innocent conduct, such as allowing people to stay in one’s home overnight. Our ongoing lawsuit in Miami Beach, Florida, highlights the fact that that city has taken to fining homeowners $20,000 to $100,000 per infraction for allowing guests to stay in their homes. Other cities are doing likewise: Honolulu is imposing $10,000 per day fines on home-sharers, even if their guests do nothing to disturb the neighborhood, and without regard to the property rights of homeowners.
As we argue in our brief on the Timbs case, these egregious penalties are an abuse. The Constitution forbids excessive fines in part as a way of preventing the government from getting around the other provisions in the Bill of Rights. For instance, the government can’t take a person’s property away without paying just compensation; without the ban on excessive fines, it would be a simple matter for the government to take property anyway by simply calling it a “fine.” Sadly, because courts have neglected to apply the excessive fines prohibition to states, local officials have been able to evade other constitutional guarantees and to essentially confiscate property from citizens, often for the benefit of politically powerful groups…or government officials themselves.
Timothy Sandefur is the vice president for litigation at the Goldwater Institute.