The next Supreme Court Justice will be an instrumental voice in deciding cases for a generation. If that justice is embattled nominee Brett Kavanaugh, he likely will cast the deciding vote in whether or not the poorest Americans can be charged excessive fines.

This is because the Supreme Court is set to hear arguments in the case Timbs v. Indiana, in which Tyson Timbs was charged with two counts of dealing heroin and one count of conspiracy to commit theft. Timbs pleaded guilty, and was sentenced to a $1,200 fine and six years in prison. Indiana also sought to seize Timbs’ Land Rover, a vehicle for which he paid $42,000.

Taking Timbs’ car is an example of civil asset forfeiture. This allows police to seize any possession that is potentially linked to a crime, from stacks of cash to whole houses. In this case, though, a trial court found that forfeiting the Land Rover amounted to a $42,000 fine — four times the maximum fine for Timbs’ crimes. The court found that to be excessive under the Eighth Amendment, which prohibits the imposition of excessive fines.

The Indiana Supreme Court reversed that decision, though, arguing that the U.S. Supreme Court had never extended Eighth Amendment rights to state defendants under the 14th Amendment. Put plainly, they said that in this area, the Constitution didn’t apply because the state had authority.

That argument has some terrifying implications.

Executing the mentally disabled and children, life sentences for petty crimes, and dramatic fines are all limited by the Eighth Amendment. The Eighth Amendment also governs the treatment of prisoners. When a hurricane is coming, the Eighth Amendment makes the legal argument to evacuate prisons. The Eighth Amendment regulates prison overcrowding.

Indiana is arguing that those rules only apply to the federal government, not to states.

“The Eighth Amendment, which has been interpreted in a flexible and dynamic manner to accord with evolving standards of decency, forbids the use of punishment that is ‘excessive’ either because it involves the unnecessary and wanton infliction of pain or because it is grossly disproportionate to the severity of the crime,” wrote Justice Potter Stewart in Gregg v. Georgia.

Here’s where Brett Kavanaugh comes in. Brett Kavanaugh isn’t a big fan of civil rights, supporting a very narrow and strict test posed by Glucksberg v. Washington. Under the Glucksberg test, rights are determined primarily by legal and cultural tradition. It’s hard to say where tradition comes down on a case like Timbs, as civil asset forfeiture is a very common and under-regulated tool for law enforcement.

And, as the ACLU pointed out in their analysis of Timbs, it’s an important tool to line city coffers.

While Timbs is about a Land Rover, excessive fines and civil asset forfeiture, the argument Indiana is making in the case has some broad-reaching implications, and, if confirmed, Brett Kavanaugh will be the person to parse what limits, if any, the Constitution places on state and local prosecutors.


Katelyn Kivel is a contributing editor and senior legal reporter for Grit Post in Kalamazoo, Michigan. Follow her on Twitter @KatelynKivel.

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