                           IN THE

    Indiana Supreme Court
          Supreme Court Case No. 27S04-1702-MI-70
                                                                    FILED
                                                              Oct 28 2019, 12:25 pm

                                                                    CLERK
                      State of Indiana,                         Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court
                        Appellant (Plaintiff)

                                –v–

                        Tyson Timbs,
                       Appellee (Defendant)


         Argued: June 28, 2019 | Decided: October 28, 2019

   Appeal from the Grant Superior Court, No. 27D01-1308-MI-92
               The Honorable Jeffrey D. Todd, Judge

On Remand from the Supreme Court of the United States, No. 17-1091



                  Opinion by Chief Justice Rush
              Justices David, Massa, and Goff concur.
          Justice Slaughter dissents with separate opinion.
Rush, Chief Justice.

   Civil forfeiture of property is a powerful law-enforcement tool. It can
be punitive and profitable: punitive for those whose property is
confiscated; and profitable for the government, which takes ownership of
the property.

  When a civil forfeiture is even partly punitive, it implicates the Eighth
Amendment’s protection against excessive fines. And since that safeguard
applies to the states through the Fourteenth Amendment, we now face
two questions left open by the Supreme Court of the United States. First,
how should courts determine whether a punitive, in rem forfeiture is an
excessive fine? And second, would forfeiture of Tyson Timbs’s vehicle be
an excessive fine?

   We answer the first question with an analytical framework similar to
those of almost all courts to have addressed the issue. For the second
question, we remand for the trial court to determine, based on that
framework, whether Timbs has cleared the hurdle of establishing gross
disproportionality, entitling him to relief.


Facts and Procedural History
   Tyson Timbs started taking prescription hydrocodone pills for foot pain
in 2007. He soon became addicted and supplemented his prescription with
pain pills he bought on the street. When those became unavailable, he
turned to heroin.

   Despite addiction treatment, Timbs continued to use; and when he
failed a drug screen, he lost his job. He got clean for a while but began
using again after his father died in 2012.

  From his father’s life insurance policy, Timbs received approximately
$73,000. With about $42,000 of those proceeds, he purchased a Land
Rover. He spent the rest on clothes, shoes, and heroin, with over $30,000
going to the drugs.

   Timbs would obtain heroin by regularly driving his Land Rover sixty to
ninety miles to meet his supplier. These trips accounted for most of the


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16,000 miles Timbs put on the vehicle over four months. Eventually, a
confidential informant told police officers on a drug task force that Timbs
would possibly sell heroin. Timbs had never sold before, but the officers
devised a controlled-buy plan.

   The first buy took place on May 6, 2013, at an apartment near Timbs’s
residence. Timbs drove his Land Rover to the apartment, bringing two
grams of heroin with him for the sale. At the apartment, Timbs gave the
drugs to the confidential informant, and an undercover police officer gave
Timbs the agreed-upon $225. Before Timbs departed in the Land Rover,
the officer mentioned contacting Timbs for another sale.

   About two weeks later, a second buy took place at a gas station close to
Timbs’s residence. Timbs arrived on foot with two grams of heroin, which
he gave to an undercover officer for $160.

   Over the next week, officers set up a third buy, which was to take place
at a hotel. But the sale did not occur. Before Timbs arrived at the meeting
place on the scheduled day, police stopped him in his Land Rover for a
traffic violation. Officers immediately seized the vehicle and took Timbs
and his passenger into custody. Neither individual had heroin with him in
the vehicle. Without drugs for the sale, they had planned to drive off with
the purchase money once the buyer handed it over.

   The State charged Timbs with three offenses: two counts of Class B
felony dealing in a controlled substance, Ind. Code § 35-48-4-2(a)(1) (2012);
and one count of Class D felony conspiracy to commit theft, I.C. §§ 35-43-
4-2(a), -41-5-2. The trial court found Timbs indigent and appointed a
public defender for the criminal case.

   After entering into a plea agreement, Timbs pleaded guilty to one count
of dealing and the conspiracy charge, and the State dismissed the other
count of dealing. The court sentenced Timbs according to the plea
agreement’s terms: the sentence for dealing—six years’ imprisonment
with five years suspended to probation and one year executed on home
detention—would run concurrent with a lesser sentence for the conspiracy
conviction. Also, as part of his sentence, Timbs was required to participate
in a drug-and-alcohol program; pay the $400 program fee; reimburse the



Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 3 of 33
drug task force $385 for the cost of its investigation; and pay $418 in court
costs and other fees.

    In addition to prosecuting the criminal case against Timbs, the State
filed a civil complaint for forfeiture of the Land Rover, bringing the action
against the property, or in rem, with Timbs as a named party in interest. In
its complaint, the State alleged:

      1. On or about May 31, 2013, officers of the . . . Drug Task
         Force, seized from the Defendant, TYSON TIMBS, One (1)
         2012 Land Rover LR2 . . . in Grant County, Indiana.

      2. On said date and at said place, the Defendant, TYSON
         TIMBS, had in his possession, the above described vehicle,
         said vehicle had been furnished or intended to be furnished
         by Defendant, TYSON TIMBS, in exchange for an act that is
         in violation of a criminal statute, or used to facilitate any
         violation of a criminal statute or is traceable as proceeds of
         the violation of a criminal statute under Indiana law, as
         provided in I.C. 34-24-1-1.

      3. The Defendant, TYSON TIMBS, is the owner of the vehicle.

   After a hearing, the court made factual findings and entered judgment
in Timbs’s favor. The court reasoned that forfeiture of the vehicle would
be grossly disproportional to the gravity of Timbs’s dealing offense—
which carried a maximum statutory fine of $10,000 (about one-fourth the
Land Rover’s market value at the time Timbs purchased it five months
earlier)—so the forfeiture would violate the Eighth Amendment’s
Excessive Fines Clause.

   The State appealed, and our Court of Appeals affirmed. State v. Timbs,
62 N.E.3d 472, 473, 477 (Ind. Ct. App. 2016). We granted the State’s
petition to transfer and reversed. State v. Timbs, 84 N.E.3d 1179, 1180–81,
1185 (Ind. 2017). Without reaching the excessiveness question, we held




Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 4 of 33
that the Excessive Fines Clause of the Eighth Amendment had not been
incorporated against the States.1 Id. at 1180–81.

  Timbs petitioned the Supreme Court of the United States for certiorari.
The Court granted his petition and held that the Excessive Fines Clause
applies to the States through the Fourteenth Amendment. Timbs v. Indiana,
139 S. Ct. 682, 687 (2019). The Court accordingly vacated our prior
decision and remanded the case back to us. Id. at 691.

  We ordered additional briefing and oral argument and now address the
merits of the constitutional issue.2


Standard of Review
   Timbs asserts that the statute under which the State sought forfeiture of
the Land Rover is unconstitutional as applied to the facts of this case. His
claim involves several layers of review.

   We accept the trial court’s factual findings unless they are clearly
erroneous. Ind. Trial Rule 52(A); Hitch v. State, 51 N.E.3d 216, 226 (Ind.
2016). But we review the court’s excessiveness decision de novo, as it
requires application of a constitutional standard. See United States v.
Bajakajian, 524 U.S. 321, 336–37 & n.10 (1998); State v. Thakar, 82 N.E.3d 257,
259 (Ind. 2017). Finally, we presume the statute is constitutional and
“resolve all reasonable doubts concerning [the] statute in favor of
constitutionality.” Thakar, 82 N.E.3d at 259 (quoting Tiplick v. State, 43
N.E.3d 1259, 1262 (Ind. 2015)).




1Timbs did not raise a claim under the Indiana Constitution. See Ind. Const. art. 1, § 16
(“Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual
punishments shall not be inflicted. All penalties shall be proportioned to the nature of the
offense.”). We are therefore unable to evaluate such a claim. See generally Jeffrey S. Sutton, 51
Imperfect Solutions: States and the Making of American Constitutional Law (2018).
2   We thank all amici for their helpful briefs.



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Discussion and Decision
   The Eighth Amendment guarantees that “[e]xcessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” U.S. Const. amend. VIII. These guarantees “place ‘parallel
limitations’ on ‘the power of those entrusted with the criminal-law
function of government.’” Timbs, 139 S. Ct. at 687 (quoting Browning-Ferris
Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 263 (1989)).

  At issue is the Excessive Fines Clause, which applies only to fines, or
“payment[s] to a sovereign as punishment for some offense.” Browning-
Ferris, 492 U.S. at 265. Because the Clause has received little attention in
Supreme Court precedent, courts in recent decades have been grappling
with the question of what makes an in rem fine excessive. We address that
question today—finding guidance in cases from the Supreme Court,
especially Austin and Bajakajian, and in the history of both the Excessive
Fines Clause and forfeitures.

   But first, we must determine whether forfeiture of Timbs’s Land Rover
is a fine, bringing it within the scope of the Excessive Fines Clause.


I. Forfeiture of Timbs’s vehicle is a fine.
  The parties agree that forfeiture of Timbs’s Land Rover is at least partly
punitive, making it a fine subject to the Excessive Fines Clause. We also
agree.

   The State sought forfeiture of the Land Rover under Indiana Code
section 34-24-1-1(a)(1)(A). This statute authorizes use-based forfeitures—
forfeitures based on the property’s use in a crime—of vehicles used in the
commission of certain drug offenses. Specifically, the statute states that
“[a]ll vehicles” may be seized for forfeiture “if they are used or are
intended for use by the person or persons in possession of them to
transport or in any manner to facilitate the transportation of . . . [a]
controlled substance for the purpose of committing, attempting to
commit, or conspiring to commit any of” the listed drug offenses. I.C. § 34-
24-1-1(a)(1) (2012 & Supp. 2013).



Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 6 of 33
   The question is whether a use-based forfeiture authorized by this
statute is punitive and thus a fine. In Austin v. United States, the Supreme
Court set out a way to answer that question. 509 U.S. 602 (1993). There, the
Government sought forfeiture—under two statutory provisions—of a
mobile home and auto shop, based on the property’s use to commit or
facilitate a federal drug offense. Id. at 604–05, 605 n.1, 620 (forfeiture under
21 U.S.C. §§ 881(a)(4), (7) (1988)). The Court concluded that such a
forfeiture was at least partially punitive, bringing it within the ambit of
the Excessive Fines Clause. Id. at 621–22.

   In reaching this conclusion, the Court took a categorical approach,
asking whether the two statutory provisions, “as a whole,” served a
punitive purpose. Id. at 622 n.14; see United States v. Ursery, 518 U.S. 267,
287 (1996) (noting that Austin’s approach is “wholly distinct from” a case-
by-case analysis). The Court found that they did for two key reasons: first,
the provisions focused on the owner’s involvement in a crime (by linking
the forfeiture to specific offenses and by including an “innocent owner”
defense); and second, the value of the forfeitable property bore no
relationship to reparative costs. Austin, 509 U.S. at 619–22. Thus,
forfeitures under the two provisions were fines. Id. at 622. And it did not
matter whether, in some cases, forfeitures under the provisions would be
purely remedial. Id. at 622 n.14. The Court’s categorical analysis would
still identify those forfeitures as fines, though their entirely remedial
character would make them not excessive. Id.

   Like the provisions in Austin, Indiana Code section 34-24-1-1(a)(1)(A) is
punitive by design. The statute focuses on the owner’s involvement in a
crime—as it ties each forfeiture to the commission of a drug offense, and
an accompanying “innocent owner” provision guards against forfeiting
vehicles from owners who are uninvolved in the underlying offense. See
I.C. § 34-24-1-4(a); cf. Austin, 509 U.S. at 619–20. Also, the value of the
forfeiture is neither a fixed sum nor linked to the harm caused by the
underlying crime; the vehicles’ values “can vary so dramatically that any
relationship between the Government’s actual costs and the amount of the
sanction is merely coincidental.” Austin, 509 U.S. at 622 n.14.
Unsurprisingly, then, the State acknowledged at oral argument that the
statute has punitive as well as remedial functions.


Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 7 of 33
    Thus, forfeitures under Section 1(a)(1)(A) are fines to which the
Excessive Fines Clause applies. Because forfeiture of Timbs’s Land Rover
is such a fine, we now turn to the contours of the protection against
excessiveness.


II. When is a use-based in rem fine excessive?
    The parties disagree about how to measure excessiveness.

   The State argues that the excessiveness of an in rem fine turns on a
single determination: if the property was an instrument of crime, then its
forfeiture is not excessive—full stop.3 The State reasons that, given the
history of in rem forfeitures, the Excessive Fines Clause “requires only that
the property forfeited be a genuine criminal instrumentality.” State’s
Opening Br. at 11.

   Timbs urges us to recognize that the Excessive Fines Clause includes
both an instrumentality limitation and a proportionality limitation. He
says analyzing excessiveness entails two main questions. Was the
property instrumental in the underlying crime? And, if so, would the
property’s forfeiture be grossly disproportional to the gravity of the
offense? Timbs asserts that these inquiries focus on several
considerations—how closely the property and predicate offense are
linked; the claimant’s blameworthiness; and the harshness of the
forfeiture’s effects. He maintains, though, that an excessiveness
determination is “factually intensive,” making “a one-size-fits-all test or a
weighting for the factors” inappropriate. Timbs’s Opening Br. at 16
(quoting United States v. 829 Calle de Madero, 100 F.3d 734, 738 (10th Cir.
1996)).

    To understand and resolve the disagreement over the appropriate
measure of excessiveness, we first review Supreme Court guidance in
Austin and Bajakajian.



3This argument differs from the State’s position prior to the U.S. Supreme Court’s grant of
certiorari. When the case was last before us, the State agreed with Timbs that the
excessiveness inquiry includes a proportionality assessment.



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   A. Supreme Court precedent provides guideposts.

   In Austin, the Court recognized that the Excessive Fines Clause applies
to some in rem forfeitures, given those forfeitures’ punitive nature. 509
U.S. at 621–22. In doing so, Austin confirmed that, even if in rem forfeitures
were not historically deemed fines (thus placing them beyond the
Excessive Fines Clause), they were understood, at least in part, as
punishments. Id. at 618. Likewise, in rem forfeitures today may be
punitive. So, after Austin, historical legal fictions behind traditional in rem
forfeitures do not prevent courts from recognizing when a modern in rem
forfeiture is a fine. See id. at 621–22.

   But Austin did not prescribe how to determine the excessiveness of in
rem fines. Id. at 622–23. It instead left that question to the lower courts,
emphasizing that its decision “in no way limits” consideration of multiple
factors in addition to whether the confiscated property has a close enough
relationship to the offense. Id. at 623 n.15.

  Five years after Austin, the Court in Bajakajian supplied a method for
determining the excessiveness of an in personam fine—a punitive forfeiture
obtained through an action against a person rather than against the
property itself. United States v. Bajakajian, 524 U.S. 321, 336–37 (1998).
There, the Court recognized that the principle of proportionality between
crime and punishment is central to whether a fine is unconstitutional
under the Excessive Fines Clause. Id. at 334 (citing Austin, 509 U.S. at 622–
23 and Alexander v. United States, 509 U.S. 544, 559 (1993)). And to
determine whether certain forfeitures are excessive fines, a gross-
disproportionality standard, as opposed to a strict-proportionality one, is
appropriate. Id. at 336. Though Bajakajian did not concern an in rem
forfeiture, portions of its reasoning extend to modern in rem fines as well.
Id. at 331 n.6, 334–37.

   In Bajakajian, the forfeiture was based on a defendant’s conviction for
failing to report that he was transporting over $10,000 in currency out of
the United States. Id. at 325. The Government sought forfeiture of the
$357,144 that the defendant failed to declare. Id.




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   The Court observed that the forfeiture was a fine—it derived from the
historical tradition of punitive, criminal forfeitures and was designed to
punish the offender. Id. at 331–33. This punitive identity, the Court
explained, made the forfeiture differ from traditional in rem forfeitures,
which were considered nonpunitive and thus not fines. Id. But the Court
noted, referencing Austin, that some modern in rem forfeitures are
punitive. Id. at 331 n.6 (citing 509 U.S. at 621–22).

   The Court then turned to the measure of excessiveness and determined
that “[t]he touchstone of the constitutional inquiry under the Excessive
Fines Clause is the principle of proportionality.” Id. at 334. In reaching this
determination, the Court looked to the text and history of the Excessive
Fines Clause and acknowledged, by citing Austin, that the centrality of
proportionality under the Clause applies to both in personam and in rem
fines. See id. at 334–35 (citing 509 U.S. at 622–23). The Court explained,
though, that because the in personam forfeiture of the currency did not
derive from a certain tradition of in rem forfeitures—one based on the
property’s instrumental use in a crime—it was “irrelevant” whether the
currency was an instrumentality, leaving proportionality as the sole
determination for excessiveness. Id. at 333–34.

   For the required level of proportionality, the Court supplied two main
reasons for adopting gross disproportionality—instead of strict
proportionality—as the appropriate measure of excessiveness: first,
“judgments about the appropriate punishment for an offense belong in
the first instance to the legislature”; and second, “any judicial
determination regarding the gravity of a particular criminal offense will
be inherently imprecise.” Id. at 336.

  Applying the gross-disproportionality standard, the Court considered
multiple factors. To start, the defendant’s offense was “solely a reporting
offense” that was “unrelated to any other illegal activities.” Id. at 337–38.
Next, the defendant did “not fit into the class of persons for whom the
[criminal] statute was principally designed,” as he was not a money
launderer, drug trafficker, or tax evader. Id. at 338. Furthermore, the
maximum sentence the defendant could receive under the Federal
Sentencing Guidelines (six months’ imprisonment and a $5,000 fine)



Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 10 of 33
confirmed “a minimal level of culpability,” in part because that sentence
was “but a fraction” of the maximum statutory penalty (five years’
imprisonment and a $250,000 fine). Id. at 338–39, 339 n.14. And finally, the
harm from the defendant’s crime was minimal. Id. at 339.

  Based on these factors, the Court concluded that the forfeiture of
$357,144 would be “grossly disproportional” and thus constitutionally
excessive. Id. at 339–40.

  Mindful of these Supreme Court decisions, we now evaluate the
parties’ arguments and provide a framework for determining whether
forfeiture of Timbs’s vehicle would be excessive.


   B. We reject the State’s instrumentality-only test.
   The State’s position—that the excessiveness of a use-based in rem fine
turns solely on whether the property was used in a crime—has found
practically no traction among federal circuit and state supreme courts.

  Rather, courts deciding this issue have almost uniformly held that the
Excessive Fines Clause includes a proportionality limitation. See, e.g.,
United States v. Ferro, 681 F.3d 1105, 1115 (9th Cir. 2012); von Hofe v. United
States, 492 F.3d 175, 184 (2d Cir. 2007); United States v. Dodge Caravan Grand
SE/Sport Van, 387 F.3d 758, 762–63 (8th Cir. 2004); United States v. 45
Claremont St., 395 F.3d 1, 6 (1st Cir. 2004) (per curiam); United States v.
Wagoner Cty. Real Estate, 278 F.3d 1091, 1100 n.7, 1101 n.8 (10th Cir. 2002);
United States v. 817 N.E. 29th Dr., 175 F.3d 1304, 1309–10 (11th Cir. 1999);
Yskamp v. DEA, 163 F.3d 767, 773 (3d Cir. 1998); United States v. 415 E.
Mitchell Ave., 149 F.3d 472, 477 (6th Cir. 1998).

   And although the Fourth Circuit adopted a multi-factored
“instrumentality test” that the South Carolina Supreme Court
appropriated, even that test looks beyond the relationship between the
property and the offense. See United States v. Chandler, 36 F.3d 358, 365 (4th
Cir. 1994) (considering “the role and culpability of the owner”); Medlock v.




Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 11 of 33
One 1985 Jeep Cherokee, 470 S.E.2d 373, 377 (S.C. 1996).4 The State points to
no other federal circuit or state supreme court cases—and we have found
none—that exclude a proportionality test from the excessiveness inquiry.

  While courts’ excessiveness inquiries vary in structure, the vast
majority focus on common considerations—like the nexus between the
property and the offense, the gravity of the offense, the harshness of the
penalty, and the claimant’s culpability. See, e.g., Commonwealth v. 1997
Chevrolet, 160 A.3d 153, 190–92 (Pa. 2017); Stuart v. State Dep’t of Safety, 963
S.W.2d 28, 35–36 (Tenn. 1998).

    Also finding these considerations integral to the excessiveness inquiry,
we hold that the Excessive Fines Clause includes both an instrumentality
limitation and a proportionality one for use-based in rem fines.
Specifically, to stay within the bounds of the Excessive Fines Clause, a
use-based fine must meet two requirements: (1) the property must be the
actual means by which an underlying offense was committed; and (2) the
harshness of the forfeiture penalty must not be grossly disproportional to
the gravity of the offense and the claimant’s culpability for the property’s
misuse.

   For an as-applied constitutional challenge like Timbs’s, this
excessiveness inquiry arises in a specific procedural context. The State
must first establish that the property is forfeitable under a statute; Indiana
forfeiture statutes require the State to make this showing by a
preponderance of the evidence.5 See I.C. § 34-24-1-4(a). If the State carries

4Though the Fourth Circuit’s Chandler decision has not been overruled, it has been called into
doubt. Compare United States v. Brunk, 11 F. App’x 147, 148 (4th Cir. 2001) (per curiam), with
United States v. Ahmad, 213 F.3d 805, 815 (4th Cir. 2000), and United States v. 300 Blue Heron
Farm Lane, 115 F. Supp. 2d 525, 527 (D. Md. 2000).
5The preponderance standard reflects a distinction between civil and criminal matters. See
generally Ursery, 518 U.S. 267. We recognize, though, that the punitive nature of some in rem
proceedings may require us to confront—at some point—questions about whether the
procedural requirements of in rem forfeitures comport with due process or other
constitutional guarantees. Cf. Dept. of Law Enf’t v. Real Prop. Owned and/or Possessed by Chilinski,
588 So.2d 957, 967–68 (Fla. 1991) (due process and jury trial); State v. Items of Real Prop., 383
P.3d 236, 243–45 (Mont. 2016) (jury trial); State v. Nunez, 2 P.3d 264, 291–92 (N.M. 1999) (due
process). See generally One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700 (1965) (“[A]
forfeiture proceeding is quasi-criminal in character. Its object, like a criminal proceeding, is to




Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019                  Page 12 of 33
this burden,6 then the property is forfeitable unless the claimant
overcomes the presumption that the statute is constitutional. For an as-
applied challenge, the claimant must show the statute is unconstitutional
as applied to the particular case, establishing the relevant facts by a
preponderance of the evidence.

   We detail in our analysis below how a court should determine whether
the claimant has carried this burden. But ultimately, to establish that the
statute is unconstitutional as applied under the Excessive Fines Clause,
the claimant must demonstrate—for a use-based forfeiture—that the
forfeiture is a fine that exceeds the Clause’s instrumentality and
proportionality limitations and thus, “in justice[,] the punishment is more
criminal than the crime.” 829 Calle de Madero, 100 F.3d at 738 (quoting
United States v. Sarbello, 985 F.2d 716, 724 (3d Cir. 1993)). In short, the
claimant must show either that the property was not an instrumentality
or, if the property was an instrumentality, that the fine would be grossly
disproportional.

   Timbs does not argue that the State failed to carry its burden in
establishing the Land Rover’s forfeitability under Section 1(a)(1)(A). He
rather argues that the statute is unconstitutional as applied to the facts of
this case. So, we now turn to the two parts of our excessiveness analysis.


    C. Excessiveness depends on instrumentality and
       proportionality.
  We take each excessiveness limitation in turn. We first explain why a
use-based fine is excessive when the property was not an instrumentality



penalize for the commission of an offense against the law.”); United States v. The Brig Burdett,
34 U.S. (9 Pet.) 682, 691 (1835) (“No individual should be punished for a violation of law
which inflicts a forfeiture of property, unless the offence shall be established beyond
reasonable doubt.”). We do not confront such issues here, as neither party has argued them.
6Many jurisdictions impose comparable burdens, though some state statutes impose more
stringent requirements on the government. Compare 18 U.S.C. § 983(c) (2018), and $15,956 in
U.S. Currency v. State, 233 S.W.3d 598, 601–02, 604 (Ark. 2006), and People ex rel. Hartrich v. 2010
Harley-Davidson, 104 N.E.3d 1179, 1188 (Ill. 2018), with Cal. Health & Safety Code
§§ 11488.4(i)(1), (2),(4), 11488.5(d) (West 2017), and Mich. Comp. Laws § 333.7521(2) (2016).



Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019                   Page 13 of 33
of the underlying offenses. We then explain why the Excessive Fines
Clause includes a proportionality limitation, and we outline its contours.


    1. A use-based fine is excessive if the property was not an
       instrumentality of the underlying crimes.
   The State and Timbs agree that the Excessive Fines Clause requires the
property of a use-based in rem fine to be a criminal instrumentality. We
also agree. We arrive at this conclusion based on the history of in rem and
in personam forfeitures.

    The tradition of civil in rem forfeitures “tracks the tainted-untainted
line.” Luis v. United States, 136 S. Ct. 1083, 1100 (2016) (Thomas, J.,
concurring in judgment). In that tradition, assets have been historically
forfeitable either because they are “tainted” as fruits or instrumentalities
of crime, or because they are proportional to the tainted property’s value.
See Bajakajian, 524 U.S. at 329–30, 340–41; id. at 345–46, 352 (Kennedy, J.,
dissenting); United States v. 92 Buena Vista Ave., 507 U.S. 111, 121 & n.15
(1993) (plurality opinion). By contrast, in personam forfeitures have been
historically predicated on the defendant’s conviction for a criminal
offense. See Bajakajian, 524 U.S. at 332; Austin, 509 U.S. at 612–13; Ursery,
518 U.S. at 294 (Kennedy, J., concurring). Because the historical basis for
an in rem forfeiture is the property’s “taint” as a fruit or instrumentality of
crime, we hold that an in rem fine lacking that basis is excessive.7

   Here, the State sought forfeiture of Timbs’s Land Rover based on its
“taint” from its use in crime. The fine is thus excessive if the vehicle is not
“tainted” as a criminal instrumentality—which depends on two questions.
First, in what crimes must the property have been instrumental? And
second, under what circumstances does the property’s involvement in


7We note that, when property is tainted because it is a fruit of crime (versus a criminal
instrumentality), it may not be a fine. For example, forfeiture of criminal proceeds may be
entirely remedial—not at all punitive—and so outside the scope of the Excessive Fines Clause.
See, e.g., United States v. Berryhill Farm Estates, 128 F.3d 1386, 1395–96 (10th Cir. 1997); United
States v. Alexander, 32 F.3d 1231, 1236 (8th Cir. 1994). The property in question here, however,
was not the fruit of a criminal enterprise, as Timbs purchased the Land Rover with lawful
funds from his father’s life insurance policy.



Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019                  Page 14 of 33
those crimes render it an instrumentality? We take each question in turn,
applying it to the facts of Timbs’s case.


        a. The relevant crimes are those on which the State
           bases its forfeiture case.
   Given that the foundation for an in rem forfeiture is the property’s
“taint” from crime, we hold that the relevant crimes for the
instrumentality inquiry are those on which the State bases its forfeiture
case. Cf. United States v. 427 & 429 Hall St., 74 F.3d 1165, 1169 (11th Cir.
1996). This principle is reflected in the challenged forfeiture statute, which
requires the State to establish the crimes in which the property was “used
or . . . intended for use.” I.C. § 34-24-1-1(a)(1).

   As explained later, other related criminal conduct may affect the
proportionality portion of the excessiveness analysis; but the
instrumentality portion focuses solely on the crimes the government
establishes to prove the property was used in a crime. This is roughly
analogous to an in personam excessiveness analysis, in which related
criminal conduct may affect the proportionality determination, but the
foundation for the in personam forfeiture depends on the defendant’s
conviction for certain crimes—the crimes the government charged,
prosecuted, and proved.

   The State and Timbs disagree about which crimes are relevant for the
instrumentality inquiry. The State argues that Timbs’s repeated possession
and dealing of heroin—multiple offenses listed under Section 1(a)(1)(A)—
are relevant to whether the Land Rover is a criminal instrumentality.
Timbs maintains that the State conceded at oral argument that the
predicate offense was only the first controlled buy.

   Had the State not conceded that it based its forfeiture case on only one
offense, we may have had to decide whether the State based its forfeiture




Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 15 of 33
case on multiple drug offenses listed under Section 1(a)(1)(A).8 But Timbs
is right about the State’s concession that it based the forfeiture case solely
on the dealing that occurred on May 6—the only deal he drove to. We
therefore treat this single offense as the predicate crime on which the
State’s forfeiture case—and thus the instrumentality inquiry—depends.

   We accordingly move on to the next instrumentality inquiry: did the
Land Rover’s involvement in the May 6 dealing offense render it an
instrumentality of that crime?


         b. Property is an instrumentality if it was the actual
            means by which an underlying crime was committed.
    The historical foundation of in rem forfeitures places a limit on what
property qualifies as an “instrumentality.” See Bajakajian, 524 U.S. at 333
n.8. Specifically, property is a criminal instrumentality only if “it was the
actual means by which an offense was committed.” Id. Thus, a claimant
may establish excessiveness by showing that the property was not the
actual means by which any of the crimes on which the government based
its case were committed. Importantly, this instrumentality requirement is
constitutional and independent of the statutory requirements for
forfeiture.9

   Supreme Court opinions offer illustrative guidance on what does—and
does not—meet the actual-means requirement. For example, for an offense
of removing, depositing, or concealing goods to avoid taxes, a vehicle

8While the State must provide sufficient notice to the claimant, a case for forfeiture under
Section 1(a)(1)(A) may rest on any of the crimes listed in that provision. See generally KS&E
Sports v. Runnels, 72 N.E.3d 892, 901 (Ind. 2017); Fed. R. Civ. P. Supp. R. E(2)(a); United States
v. Mondragon, 313 F.3d 862 (4th Cir. 2002). Here, the State’s forfeiture complaint and
presentation of evidence may have predicated the forfeiture case on the Land Rover’s use to
commit multiple possession and dealing offenses. And Timbs does not contend that the
State’s pleading was insufficient or that the State failed to present adequate evidence that the
vehicle was used to possess a narcotic drug, see I.C. § 34-24-1-1(a)(1)(A)(viii).
9The State asserts that the forfeiture statute supplies the measure of instrumentality. In other
words, that if the statutory conditions are met, so, too, is the constitutional instrumentality
requirement. We disagree. Forfeiture statutes may include a requirement mirroring the
constitutional instrumentality limit, but the Excessive Fines Clause’s actual-means restriction
stands independent of statutory requirements for use-based forfeitures.



Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019                  Page 16 of 33
used to transport and conceal the goods would be an instrumentality. Id.
at 334 n.9 (citing J.W. Goldsmith, Jr.–Grant Co. v. United States, 254 U.S. 505,
508 (1921)). Similarly, for an unlawful drug sale, scales used to measure
out the drugs would be an instrumentality. Austin, 509 U.S. at 627–28
(Scalia, J., concurring in part and in the judgment).

   In contrast, the mere presence of property in a crime does not make the
property an instrumentality. See, e.g., Bajakajian, 524 U.S. at 334 n.9
(acknowledging that while certain property may satisfy a precondition to
an offense’s commission, that fact alone may not make the property an
instrumentality). And for property that is divisible, it may be that only
part of the property was the actual means by which a crime was
committed. See id. at 333 n.8; cf. Rufus Waples, A Treatise on Proceedings
in Rem 252 (1882) (“If only one acre of a tract of land containing a
hundred acres[] is used in contravention of law, only that acre can be
rightfully condemned.”).

   Timbs argues that the Land Rover was not instrumental in the May 6
dealing offense because the vehicle “had only an ‘incidental and
fortuitous’ link” to the crime. Timbs Opening Br. at 17 (quoting 1997
Chevrolet, 160 A.3d at 185). He reasons that, although he drove the vehicle
to the drug sale, it was just a five-minute drive from his residence. He also
reasons that the vehicle is much like a building in which an isolated drug
sale happens to occur—because the vehicle was no more instrumental to
the drug sale than the apartment in which the sale took place. Id. at 17
(citing Austin, 509 U.S. at 628 (Scalia, J., concurring in part and in the
judgment)).

   We disagree that the Land Rover was not the actual means by which
the dealing offense was committed. It is true that the distance Timbs drove
to the sale may have been short, and perhaps Timbs could have walked.
But he used the vehicle not only to get himself and the drugs to the
location where the deal would take place, but also to obtain the drugs for
the sale.

   In sum, the Land Rover was the actual means by which the predicate
crime was committed, making the vehicle an instrumentality. And so, its



Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 17 of 33
forfeiture falls within the Excessive Fines Clause’s instrumentality limit
for use-based fines.

   The State argues that this is the end of the excessiveness inquiry. As
mentioned earlier, we disagree and join the many courts recognizing that
the Excessive Fines Clause also includes a proportionality limitation.
Before elaborating on the proportionality test for use-based fines, though,
we first explain why we reject the State’s argument that we should confine
the excessiveness inquiry to an instrumentality test alone.


    2. The Excessive Fines Clause imposes a proportionality
       limitation on punitive instrumentality forfeitures.
   In arguing that excessiveness depends only on whether the property is
a criminal instrumentality, the State relies on history: for hundreds of
years, no court applied a proportionality requirement to any in rem
forfeiture. So, the State concludes that “there is no historical grounding” to
recognize a proportionality limitation alongside the instrumentality one.
Oral Argument at 10:57–11:01, State v. Timbs (June 28, 2019),
https://perma.cc/B57E-H5JC.

   We agree with the State that we should “look at the historical roots of in
rem forfeiture[] . . . as a guide” for determining excessiveness. Id. at 11:20.
But in doing so, we will not ignore how far removed today’s in rem
forfeitures are from their traditional roots. See United States v. James Daniel
Good Real Prop., 510 U.S. 43, 82 (1993) (Thomas, J., concurring in part and
dissenting in part) (recognizing that the modern in rem forfeiture practice
under a federal drug-abuse forfeiture statute “appears to be far removed
from the legal fiction upon which the civil forfeiture doctrine is based”).
“[A]mbitious modern statutes and prosecutorial practices have all but
detached themselves from the ancient notion of civil forfeiture.” Id. at 85.

   Indeed, the way Indiana carries out civil forfeitures is both concerning,
see Horner v. Curry, 125 N.E.3d 584, 612 (Ind. 2019) (Slaughter, J.,
concurring in the judgment), and symptomatic of a shift in in rem
forfeiture law and practice. See also Leonard v. Texas, 137 S. Ct. 847, 849



Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 18 of 33
(2017) (Thomas, J., respecting denial of certiorari) (observing differences
between traditional and modern in rem forfeiture practices). Compare
Bajakajian, 524 U.S. at 333 (observing that in rem forfeitures were
traditionally considered nonpunitive), with Austin, 509 U.S. at 621–22
(acknowledging that in rem forfeiture may be—and sometimes is—
punitive).

   Recognizing this departure, we conclude that the Excessive Fines
Clause places not only an instrumentality limit on use-based fines, but
also a proportionality one. We reach this conclusion based on the text and
history of the Excessive Fines Clause, the history of in rem forfeitures, and
Supreme Court precedent.


        a. The text and history of the Excessive Fines Clause
           favor proportionality.
   The text and history of the Excessive Fines Clause run counter to the
State’s instrumentality-only test.

   The text of the Eighth Amendment provides, “Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. Cont. amend. VIII. The word “[e]xcessive
means surpassing the usual, the proper, or a normal measure of
proportion.” Bajakajian, 524 U.S. at 335 (citing dictionary definitions).
Thus, the text contemplates some measure of proportionality.

   So does its history. The Clause’s precursor in the English Bill of Rights
sought to protect against penalties that were exorbitant and out of
proportion with the punished person’s wrongdoing. Id. The provision also
reaffirmed Magna Carta’s guarantee that “[a] Free-man shall not be
amerced for a small fault, but after the manner of the fault; and for a great
fault after the greatness thereof, saving to him his contenement”—a
guarantee that “required that economic sanctions ‘be proportioned to the
wrong’ and ‘not be so large as to deprive [an offender] of his livelihood.’”
Timbs, 139 S. Ct. at 687–88 (alterations in original) (first quoting Magna
Carta, § 20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225); then quoting
Browning-Ferris, 492 U.S. at 271).


Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 19 of 33
   The Court in Bajakajian accordingly reasoned that “[t]he text and
history of the Excessive Fines Clause demonstrate the centrality of
proportionality to the excessiveness inquiry.” 524 U.S. at 335. Although
the Court was analyzing an in personam forfeiture, the text and history of
the Excessive Fines Clause apply to both in personam and punitive in rem
forfeitures. See generally Timbs, 139 S. Ct. at 686–91 (observing that the
right guaranteed by the Excessive Fines Clause is deeply rooted). Thus,
proportionality is central to the excessiveness inquiry not only for in
personam forfeitures but also for punitive in rem forfeitures. See Bajakajian,
524 U.S. at 334 (citing Austin, 509 U.S. at 622–23).

   This leads us to another reason we reject the State’s instrumentality-
only test: the history of in rem forfeitures does not limit the excessiveness
inquiry as the State contends.


        b. The history of traditional in rem forfeitures does not
           exclude a proportionality limit.
  The history of in rem forfeitures does not justify omitting
proportionality from the excessiveness analysis. The primary reason is
that the “guilty property” fiction behind traditional in rem forfeitures no
longer shields in rem forfeitures from review for excessiveness.

   Early United States statutes authorized forfeiture of property linked to
various legal transgressions. See, e.g., 1 Stat. 137, § 3 (1790) (trade with
native peoples); 1 Stat. 199, § 10 (1791) (transporting distilled spirits); 1
Stat. 347, § 1 (1794) (slave trade); 1 Stat. 369, § 2 (1794) (arms exports); 1
Stat. 381, § 3 (1794) (war neutrality). Stylizing these statutory forfeitures in
rem rather than in personam was sometimes necessary to enforce the law—
because the person responsible for a violation was not always within the
personal jurisdiction of the United States. See Austin, 509 U.S. at 615–16 n.9
(“The fictions of in rem forfeiture were developed primarily to expand the
reach of the courts.” (quoting Republic Nat’l Bank of Miami v. United States,
506 U.S. 80, 87 (1992))). In those cases, bringing a forfeiture action against
the property was “the only adequate means of suppressing the offence or
wrong.” Harmony v. United States, 43 U.S. (2 How.) 210, 233 (1844).



Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 20 of 33
   Because in rem actions were brought against the property, “the conduct
of the property owner was irrelevant” in the sense that—even when the
responsible party was within jurisdictional reach—the property could be
forfeited without the owner having violated the law. Bajakajian, 524 U.S. at
330; see, e.g., Origet v. United States, 125 U.S. 240, 246 (1888); Harmony, 43
U.S. (2 How.) at 233; The Palmyra, 25 U.S. (12 Wheat.) 1, 14–15 (1827).
Nevertheless, the owner’s culpability may have played a role in whether
the property could be forfeited. See Austin, 509 U.S. at 616–17.

   The Supreme Court often explained traditional in rem forfeitures using
a “guilty property” fiction—that the inanimate property itself was guilty
of the offense. Id. at 616. This fiction accurately reflected two distinctive
features of in rem forfeitures: first, the actions focused on the property’s
relationship to the legal transgression (that is, the property’s taint from a
violation); and second, the forfeitures were not conditioned on the owner
having been convicted for the transgression. See, e.g., Origet, 125 U.S. at
245–46; Palmyra, 25 U.S. (12 Wheat.) at 14–15; The Meteor, 17 F. Cas. 178,
181–82 (C.C.S.D.N.Y. 1866) (No. 9498).

  But as venerable as the “guilty property” fiction was, it may have
contributed to a false classification of all in rem forfeitures as
“nonpunitive” and thus, “outside the domain of the Excessive Fines
Clause.” Bajakajian, 524 U.S. at 331. While some in rem forfeitures may
have been nonpunitive, many went beyond remedying the harm done,
punishing owners for the lawbreaking. See, e.g., 1 Stat. 384 § 18 (1794)
(authorizing forfeiture—as a consequence for unshipped sugar and snuff
dispatched for export—of unshipped property, ships, guns, furniture,
ammunition, tackle, and apparel). Indeed, the Supreme Court recognized
that the in rem forfeiture procedure was at times “a highly penal one,”
requiring the government to establish “the infractions of the law . . .
beyond reasonable doubt.” United States v. The Brig Burdett, 34 U.S. (9 Pet.)
682, 690 (1835); see also The Emily & the Caroline, 22 U.S. (9 Wheat.) 381, 389
(1824).

   Thus, regardless of their classification, in rem forfeitures were
ultimately understood, at least in part, as punishment. Austin, 509 U.S. at
618. And, although a blanket “nonpunitive” classification may have



Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 21 of 33
shielded traditional in rem forfeitures from constitutional excessiveness
review—by designating all in rem forfeitures as not fines—this is no longer
the case. Austin confirmed that shift.

  Adding to the removal of the guilty-property fiction as a barrier to
excessiveness review, expansion of in rem practices has ushered the
excessiveness question into judicial view. Procedural safeguards may
have tempered traditional in rem forfeitures and insulated them from
constitutional challenge. See, e.g., Burdett, 34 U.S. (9 Pet.) at 690; Emily, 22
U.S. (9 Wheat.) at 389. See generally Kevin Arlyck, The Founders’ Forfeiture,
119 Colum. L. Rev. (forthcoming 2019). But in recent decades, the absence
of certain shields against the oppressive use of civil forfeiture has
encouraged the widened use of aggressive in rem forfeiture practices—
which, in turn, has sparked criticism. See Leonard, 137 S. Ct. at 848
(Thomas, J., respecting denial of certiorari); Sargent v. State, 27 N.E.3d 729,
735 (Ind. 2015) (Massa, J., dissenting) (noting that forfeiture practices “are
not without their critics, and their misuse invites further scrutiny”). See
generally Timbs, 139 S. Ct. at 688–89 (observing the potential of fines to be
used for retaliating against or chilling speech and for raising revenue
apart from generally applicable taxes).

   As a result of these changes in the law and practice surrounding in rem
forfeitures, the question we face concerning the excessiveness of in rem
fines is a new one—one that traditional in rem forfeitures did not prompt
and that the Supreme Court did not answer. Thus, the history of in rem
forfeitures does not establish that an instrumentality-only test is
appropriate for today’s use-based fines.

   Despite the text and history we’ve just addressed, the State maintains
that the Excessive Fines Clause either does not apply to in rem forfeitures
at all or requires only that the property forfeited be a criminal
instrumentality. The State acknowledges that Austin precludes the first of
these positions. And we recognize that the second position creates tension
with both Austin and Bajakajian—which is the final reason we reject the
State’s instrumentality-only test.




Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 22 of 33
         c. The State’s instrumentality-only test would create
            tension with Supreme Court precedent.
   Both Austin and Bajakajian recognized that some in rem forfeitures
punish property owners and are thus fines within the scope of the
Excessive Fines Clause. Austin, 509 U.S. at 621–22; Bajakajian, 524 U.S. at
333 n.8. Bajakajian further recognized that proportionality (which involves
consideration of the claimant’s culpability) is central to constitutionality
under the Clause. 524 U.S. at 334. And the Court hinged its reasoning
largely on the punitive nature of in personam forfeitures—a punitive
nature that also exists in in rem fines. See id. at 330–34, 331 n.6.
Accordingly, the State’s instrumentality-only test for in rem fines would
create tension with these cases by excluding the claimant’s culpability—
and other components of proportionality—from the excessiveness inquiry.

   We see this tension most clearly in the case of a blameless owner. The
Supreme Court has left open the question of whether the Excessive Fines
Clause prohibits punitive forfeitures of property from innocent owners.
Cf. Austin, 509 U.S. at 616–17, 617 n.10. So, it may be that (1) forfeiting an
innocent owner’s lawfully owned property punishes the owner; and (2) if
the owner is completely blameless for the property’s criminal “taint,” the
forfeiture is necessarily excessive—because it punishes someone who has
done nothing wrong. And while we don’t need to answer the innocent-
owner inquiry (because Timbs is not an innocent owner), the State’s test
would close the door to that question by dictating an answer: regardless of
the owner’s blameworthiness, the forfeiture would never be excessive so
long as the property was instrumental in a crime.10

   Ultimately, what flows from Austin and Bajakajian is this: the claimant’s
culpability is a consideration in analyzing the excessiveness of an in rem
fine. While the basis for the forfeiture is the property’s misuse, the

10In defending its test, the State reasons that statutes provide innocent-owner defenses and
that the public would not stand for legislation authorizing forfeiture of a vehicle for an offense
as minor as speeding. These assurances, even if accurate, are beside the point. See I.C. §§ 34-
24-1-1(e), -4(a) (providing an “innocent owner” provision only when the property is a
vehicle). The question is not whether blameless owners have any protection against forfeiture
when someone else has misused their property. It is whether the Excessive Fines Clause
certainly does not supply such a safeguard.



Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019                 Page 23 of 33
punishment is imposed on the claimant, whose property becomes the
government’s and whom the Excessive Fines Clause protects.

  For these reasons, we disagree with the State that excessiveness
depends solely on whether the property was an instrumentality; it
depends also on proportionality.


    3. An instrumentality forfeiture is excessive if—based on
       the totality of the circumstances—the harshness of the
       punishment is grossly disproportional to the gravity of
       the offenses and the claimant’s culpability.

   Most courts addressing the excessiveness of in rem fines have followed
Bajakajian in applying a gross-disproportionality standard—versus
another standard like strict proportionality. We likewise find a gross-
disproportionality standard appropriate.

   The logic behind Bajakajian’s adoption of the gross-proportionality
measure for in personam forfeitures applies to in rem fines as well. After all,
much like in personam forfeitures, in rem fines are “punishment for some
offense,” Browning-Ferris, 492 U.S. at 265, so any standard of
proportionality implicates the relationship between the crime and the
punishment’s magnitude. And for in rem fines, gross disproportionality is
the appropriate measure because, as with in personam forfeitures,
“judgments about the appropriate punishment for an offense belong in
the first instance to the legislature” and “any judicial determination
regarding the gravity of a particular criminal offense will be inherently
imprecise.” Bajakajian, 524 U.S. at 336.

  Thus, we hold that gross disproportionality—not strict
proportionality—is the appropriate standard for assessing whether an in
rem instrumentality forfeiture is excessive. However, two key differences
between in rem and in personam forfeitures warrant two corresponding
differences in their respective proportionality tests.

  First, in personam forfeitures concern defendants who have been found
guilty of committing an underlying crime; so the underlying conviction



Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 24 of 33
has established their culpability and the extent of their involvement in the
crime. By contrast, in rem forfeitures concern owners who may not have
committed the underlying crime; and thus, their culpability and extent of
involvement in the crime have not been previously established by a
conviction that serves as the basis for the forfeiture. For this reason, while
the gross-disproportionality inquiry for in personam forfeitures considers
“the gravity of the defendant’s offense,” id. at 337, the inquiry for punitive
in rem forfeitures considers the gravity of the predicate offenses and the
owner’s culpability for the property’s use in that criminal enterprise.

   Second, an in rem forfeiture may be substantially remedial in nature,
contrasting with an in personam forfeiture that “serves no remedial
purpose,” id. at 332. Thus, whereas the gross-disproportionality inquiry
for in personam forfeitures considers the whole amount of the forfeiture, id.
at 336–37, the inquiry for in rem forfeitures focuses precisely on the
harshness of the punishment that the forfeiture imposes.

   In sum, the proportionality limitation for use-based in rem fines is this:
based on the totality of the circumstances, if the punitive value of the
forfeiture is grossly disproportional to the gravity of the underlying
offenses and the owner’s culpability for the property’s criminal use, the
fine is unconstitutionally excessive. Cf. id.


        a. The proportionality assessment entails three
           considerations.
  While the gross-disproportionality assessment is fact intensive and
depends on the totality of the circumstances, it involves three
considerations. We take each in turn, providing non-exclusive factors
courts may take into account.


             i. Harshness of the Punishment

   As mentioned above, use-based in rem fines may be both remedial and
punitive. Whether they are subject to an excessiveness analysis in the first
place depends on a categorical analysis of the applicable forfeiture statute.
See Austin, 509 U.S. at 621–22, 622 n.14. But whether they are excessive


Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 25 of 33
depends in part on the degree to which they are remedial or punitive. The
more remedial a forfeiture is, the less punishment it imposes. Thus, when
determining the harshness of the punishment, a court’s assessment may
include the following:

     •   the extent to which the forfeiture would remedy the harm caused;
     •   the property’s role in the underlying offenses;
     •   the property’s use in other activities, criminal or lawful;
     •   the property’s market value;
     •   other sanctions imposed on the claimant; and
     •   effects the forfeiture will have on the claimant.

A couple of these considerations warrant additional explanation.

   The State maintains that the property’s value and the respondent’s
economic means ought to be excluded from consideration. We cannot
agree.

   To conduct a proportionality analysis at all, we need to consider the
punishment’s magnitude. And the owner’s economic means—relative to
the property’s value—is an appropriate consideration for determining that
magnitude. To hold the opposite would generate a new fiction: that taking
away the same piece of property from a billionaire and from someone
who owns nothing else punishes each person equally.

   That said, an owner may be able to prove gross disproportionality
without presenting evidence on wealth, income, or the deprivation of
one’s livelihood. See, e.g., Bajakajian, 524 U.S. at 339–40, 340 n.15.
Conversely, if an owner does not make certain showings on these matters,
the court may determine that the owner failed to show gross
disproportionality.11


11Notably, consideration of a person’s economic situation is not a foreign practice for courts.
When economic sanctions are imposed, even when the sanctions are remedial, courts
regularly do not turn a blind eye to a person’s economic resources. For example, when
imposing court costs, a trial court in Indiana “shall conduct a hearing to determine whether
the convicted person is indigent.” Ind. Code § 33-37-2-3 (2018). When a person is required to
make restitution or reparation as a condition of probation, the amount “may not exceed an
amount the person can or will be able to pay.” I.C. § 35-38-2-2.3(a)(6). See generally Bell v. State,




Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019                    Page 26 of 33
   We recognize that the Court in Bajakajian took no position on whether a
person’s income and wealth are relevant considerations in judging the
excessiveness of a fine. It noted that the defendant had not argued that his
wealth or income were relevant to the proportionality determination; nor
had he argued that the full forfeiture would deprive him of his livelihood.
Id. at 340 n.15. And it observed that the district court made no findings on
those matters. Id.

   But the historical roots of the Excessive Fines Clause reveal concern for
the economic effects a fine would have on the punished individual.
Magna Carta—from which the Clause derives—specifically contemplated
an economic sanction’s effect on the wrongdoer, requiring “that
amercements (the medieval predecessors of fines) should be proportioned
to the offense and that they should not deprive a wrongdoer of his
livelihood.” Bajakajian, 524 U.S. at 335. Likewise, the abuses of sovereign
power that led to the English Bill of Rights included the Star Chamber’s
imposition of heavy fines “in disregard ‘of the provision of the Great
Charter, that no man shall be amerced even to the full extent of his
means,’” Timbs, 139 S. Ct. at 694 (Thomas, J., concurring in judgment)
(quoting 2 Henry Hallam, The Constitutional History of England from the
Accession of Henry VII to the Death of George II 46–47 (2d ed. 1829)); see also 4
William Blackstone, Commentaries *372 (“[N]o man shall have a larger
amercement imposed upon him, than his circumstances or personal estate
will bear . . . .”), quoted in Timbs, 139 S. Ct. at 688.

  For these reasons, the forfeiture’s effect on the owner is an appropriate
consideration in determining the harshness of the forfeiture’s punishment.
We next examine the pair of considerations that stand on the opposite side



59 N.E.3d 959 (Ind. 2016). And when civil punitive damages are at issue, the defendant’s
financial circumstances are an appropriate consideration. See Stroud v. Lints, 790 N.E.2d 440,
445–46 (Ind. 2003); id. at 446 (“The defendant’s wealth is ordinarily cited as a reason to
escalate a punitive award, and that is consistent with the goal of deterrence. But that door
swings both ways. An award that not only hurts but permanently cripples the defendant goes
too far.”). See generally National Task Force on Fines, Fees, and Bail Practices, Principles on
Fines, Fees, and Bail Practices 6 (2016),
https://www.ncsc.org/~/media/Files/PDF/Topics/Fines%20and%20Fees/Principles%
201%2017%2019.ashx [https://perma.cc/E838-226A].



Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019               Page 27 of 33
of the proportionality scales: the severity of the underlying offenses and
the claimant’s culpability for the property’s criminal use.


             ii. Severity of the Offenses

  When considering the severity of the underlying offenses, statutory
penalties, sentencing guidelines, and trial courts’ sentencing decisions
supply important cues. For example, the maximum statutory penalty for
an offense suggests the appropriate sentence for those who commit the
worst variants of the crime. Sentencing guidelines may supply more
detailed information about the appropriate sentence for the crime
underlying the forfeiture. And if someone was convicted for the offense,
the sentence actually imposed may provide even more precise insight into
the offense’s severity, including whether the offender “fit into the class of
persons for whom the [criminal] statute was principally designed.”
Bajakajian, 524 U.S. at 338.

   Accordingly, when determining the severity of the offense, a court’s
assessment may include the following:

   •   the seriousness of the statutory offense, considering statutory
       penalties;
   •   the seriousness of the specific crime committed compared to other
       variants of the offense, considering any sentences imposed;
   •   the harm caused by the crime committed; and
   •   the relationship of the offense to other criminal activity.

  In the proportionality analysis, the severity of the offense must be
considered alongside the owner’s culpability.


             iii. Claimant’s Culpability

   The culpability consideration focuses on the claimant’s
blameworthiness for the property’s use as an instrumentality of the
underlying offenses. As mentioned above, if a claimant is entirely
innocent of the property’s misuse, that fact alone may render a use-based
in rem fine excessive. On the other end of the spectrum is a claimant who



Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 28 of 33
used the property to commit the underlying offenses. In between these
poles is a range of blameworthiness for the property’s criminal use. See
von Hofe, 492 F.3d at 187–89. Thus, a court should consider where, in this
range, the claimant’s culpability lies.

   Although we’ve outlined the considerations and certain relevant factors
for the gross-disproportionality assessment applicable to use-based in rem
fines, we must also observe how that inquiry is distinct from a gross-
disproportionality analysis under the Eighth Amendment’s Cruel and
Unusual Punishments Clause.


          b. The Excessive Fines Clause and the Cruel and
             Unusual Punishments Clause impose distinct
             gross-disproportionality limits.
   While a gross-disproportionality standard operates in both the Cruel
and Unusual Punishments Clause and the Excessive Fines Clause, the two
clauses are independent, imposing parallel—rather than interlinked—
limits on the government’s power to punish. See Browning-Ferris, 492 U.S.
at 263.

   Thus, a use-based fine may be excessive even if a person would
presumably prefer the fine over a term of imprisonment that would not
violate the Cruel and Unusual Punishments Clause. We observe three
reasons why excessiveness under the Excessive Fines Clause does not turn
on what is prohibited by the Cruel and Unusual Punishments Clause. See
Alexander, 509 U.S. at 558–59 (observing that a certain rule applicable to
the prohibition against cruel and unusual punishments does not apply to
an Excessive Fines Clause analysis).

   First, the Framers of our Constitution erected, in the Eighth
Amendment, multiple, separate barricades against the government’s
punishing power. This structure alone reveals that one limit is not the
measure of the other. Indeed, if analysis under the Cruel and Unusual
Punishments Clause dictates the analysis and outcome under the
Excessive Fines Clause, then the Excessive Fines Clause is superfluous or
hollow. See Antonin Scalia & Bryan A. Garner, Reading Law: The


Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 29 of 33
Interpretation of Legal Texts 174–79 (2012); cf. United States v. Butler, 297
U.S. 1, 65 (1936) (“These words cannot be meaningless, else they would
not have been used.”); Harmelin v. Michigan, 501 U.S. 957, 978 n.9 (1991)
(opinion of Scalia, J.). In other words, because a fine is a punishment for
some offense, equating “excessive” with “cruel and unusual” would mean
that the Excessive Fines Clause provides no protection different from the
Cruel and Unusual Punishments Clause.

  Second, comparing in rem fines to non-fines is inapposite—like asking
whether a fine is somehow less expensive than a sentence is lengthy. To be
sure, the economic nature of fines warrants protection distinct and
independent from the Cruel and Unusual Punishments Clause, as the
government often stands to benefit from fines. And this incentive creates a
danger “that fines, uniquely of all punishments, will be imposed in a
measure out of accord with the penal goals of retribution and deterrence.”
Harmelin, 501 U.S. at 979 n.9 (opinion of Scalia, J.), quoted in part in Timbs,
139 S. Ct. at 689. Reflecting this particular danger, some early state
constitutions prohibited excessive fines without limiting other forms of
punishment. Id.

   Another difference distinguishes criminal punishment from in rem
fines: criminal punishment is imposed for the commission of a crime; in
rem fines are imposed for the claimant’s role in the property’s use in a
crime. See Ursery, 518 U.S. at 294 (Kennedy, J., concurring) (“[T]he
instrumentality-forfeiture statutes are not directed at those who carry out
the crimes, but at owners who are culpable for the criminal misuse of the
property.”). Thus, although both gross-disproportionality standards are
high bars for establishing unconstitutionality, the conduct punished is
different, creating different data points for the proportionality
assessments.

   Finally, maintaining independent analyses for the two Clauses aligns
with the Supreme Court’s reasoning in Bajakajian. Although the Court
drew upon the gross-disproportionality standard articulated in Cruel and
Unusual Punishments Clause precedents, it did not say that it was
importing the underlying cruel-and-unusual-punishment analysis. See
Bajakajian, 524 U.S. at 336. While the Court recognized that prison-term



Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 30 of 33
sentences prescribed for certain offenses are clues to the gravity of an
offense, id. at 339 n.14, it did not supply a conversion rate for dollars to
years of imprisonment. Indeed, it did not reason that $357,144 (the
amount of the forfeiture) equated to a prison term that would be cruel and
unusual punishment. Id. at 339–40; accord Alexander, 509 U.S. at 558–59.

   Underscoring that the proportionality inquiry in this case is distinct
from a Cruel and Unusual Punishments Clause proportionality inquiry,
we now turn to the facts of this case.


          c. The trial court must apply the outlined
             proportionality test to the facts of Timbs’s case.
   We have in the record some information about the harshness of the
forfeiture’s punishment, the severity of the offense, and Timbs’s
culpability for the Land Rover’s misuse. For example, the State
acknowledged “most of what is occurring here is punitive,” rather than
remedial. The criminal case file (of which the trial court took judicial
notice) indicates Timbs was indigent and lacked income and savings. And
we know both the statutory penalties tied to the underlying Class B felony
and the sentence that the criminal court imposed on Timbs for his
commission of that offense.

  But the proportionality analysis we’ve outlined is factually intensive
and depends on the totality of the circumstances. Because the trial court
did not have the benefit of this analytical framework, we do not have the
benefit of a record (including factual findings) developed in light of the
appropriate analytical structure.

  We therefore remand to the trial court for further proceedings
consistent with this opinion and to apply the proportionality test to the
facts of this case. Specifically, when the trial court applies the
proportionality test, the court must determine whether Timbs has
overcome his burden to establish that the harshness of the forfeiture’s
punishment is not only disproportional, but grossly disproportional, to
the gravity of the underlying dealing offense and his culpability for the
Land Rover’s corresponding criminal use.



Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 31 of 33
Conclusion
  Over twenty-five years ago, the Supreme Court of the United States
unanimously held that in rem forfeitures can be punitive and, thus, fines
subject to the Eighth Amendment’s excessiveness limitation. It left to
lower courts the task of establishing the appropriate measure of
excessiveness—a task that we take up today.

  We accordingly hold that a use-based in rem fine is excessive if (1) the
property was not an instrumentality of the underlying crimes, or (2) the
property was an instrumentality, but the harshness of the punishment
would be grossly disproportional to the gravity of the underlying offenses
and the owner’s culpability for the property’s misuse.

   Here, Timbs’s Land Rover was an instrumentality of the underlying
offense of drug dealing. But we remand for the trial court to answer the
question of gross disproportionality based on the framework we set out.

   We thus vacate and remand.


David, Massa, and Goff, JJ., concur.
Slaughter, J., dissents with separate opinion.




Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 32 of 33
ATTORNEYS FOR APPELLANT

Curtis T. Hill, Jr.                             Aaron T. Craft
Attorney General of Indiana                     Chandra K. Hein
                                                Julia C. Payne
Thomas M. Fisher
                                                Justin F. Roebel
Solicitor General
                                                Deputy Attorneys General
Kian J. Hudson                                  Indianapolis, Indiana
Deputy Solicitor General

ATTORNEYS FOR APPELLEE

Samuel B. Gedge                                 J. Lee McNeely
Institute for Justice                           Cynthia A. Bedrick
Arlington, Virginia                             Scott A. Milkey
                                                McNeely Stephenson
Wesley Hottot
                                                Shelbyville, Indiana
Institute for Justice
Seattle, Washington                             David W. Stone IV
                                                Stone Law Office & Legal Research
                                                Anderson, Indiana

ATTORNEYS FOR AMICI CURIAE AMERICAN CIVIL LIBERTIES
UNION, CATO INSTITUTE, DRUG POLICY ALLIANCE, FINES AND
FEES JUSTICE CENTER, LAW ENFORCEMENT ACTION
PARTNERSHIP, & R STREET INSTITUTE

Joshua S. Lipshutz                              Thomas Q. Swanson
Gibson, Dunn & Crutcher LLP                     Daniel L. Chen
Washington, D.C.                                Gibson, Dunn & Crutcher LLP
                                                San Francisco, California
Brian J. Paul
Andrew D. Dettmer
Faegre Baker Daniels LLP
Indianapolis, Indiana

ATTORNEY FOR AMICUS CURIAE FOUNDATION FOR MORAL LAW

Richard A. Greenwalt
Greenfield, Indiana

ATTORNEY FOR AMICI CURIAE STATES OF UTAH, ARKANSAS,
HAWAII, LOUISIANA, OKLAHOMA, AND TEXAS

Kevin S. Smith
Special Assistant Utah Attorney General
Fishers, Indiana


Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019       Page 33 of 33
Slaughter, J., dissenting.

   I respectfully dissent from the the Court’s thoughtful, scholarly opinion
for two reasons.

   First, the Court’s announced rule subjects the excessive-fines inquiry to
a highly fact-specific, multifactor balancing test that turns on the totality
of the circumstances. The problem with such tests—unlike bright-line
rules—is that they leave litigants and lower courts uncertain about how a
particular case with its particular facts will be decided. Such an approach
creates the impression, because it reflects the reality, of an “eye-of-the-
beholder” jurisprudence—that law is not a fixed set of rules to be applied
neutrally, but a hodgepodge of factors that yields varied, unpredictable
outcomes from case to case. Such variable results are not the fault of the
judges applying the factors but the inevitable—and regrettable—
byproduct of the multifaceted inquiries we impose on them. To be sure,
some legal questions may defy ready application of bright-line rules. But
our goal should be to embrace such rules when possible. We should turn
to contextual, totality-of-the-circumstances inquiries only as a last resort,
not as a first option. If the test the Court announces today is going to be
the prevailing legal standard, it should be the Supreme Court of the
United States that says so authoritatively.

   In lieu of our Court’s test, I would embrace the State’s proposed rule,
which asks whether the forfeited asset was the instrumentality of a crime.
In my view, that is where the excessiveness inquiry under the Eighth
Amendment begins and ends—at least until the Supreme Court tells us
otherwise. This approach is easy to apply, is consistent with the Supreme
Court’s historical practice of approving in rem forfeitures that were the
instrumentality of a crime—regardless of their disproportionality—and
has never been squarely rejected by the Supreme Court’s recent excessive-
fines case law. In Austin v. United States, 509 U.S. 602 (1993), the Supreme
Court held that the Excessive Fines Clause applies to in rem forfeitures.
See id. at 618-22. But the Court did not announce the standard for
evaluating excessiveness. Instead, it remanded the case so lower courts
could fashion an appropriate standard. Id. at 622, 623 n.15. Five years later,
in United States v. Bajakajian, 524 U.S. 321 (1998), which addressed the
excessiveness of an in personam forfeiture, the Court rejected the
government’s attempt to import an instrumentality inquiry for in rem
forfeitures onto its excessiveness test for in personam forfeitures. Id. at 333-
34 & n.8.

   Today, our Court invokes Bajakajian to reject the State’s argument for an
instrumentality test. But Bajakajian’s discussion of proportionality for
measuring the excessiveness of in personam forfeitures does not mean that
proportionality also is appropriate for measuring the excessiveness of in
rem forfeitures. The fact is, the Supreme Court still has not decided this
precise question, despite the lapse of twenty-six years since Austin. Until
that Court pronounces a different rule, I would not engraft its
proportionality inquiry for in personam forfeitures onto the historical
instrumentality test in this in rem case. We should not try to divine where
the Supreme Court’s jurisprudence is headed, extrapolating to what may
seem a likely outcome based on few available data points.

   Second, I also respectfully dissent because of our disposition today. We
do neither the parties nor the lower courts any favors by remanding so the
trial court can apply our Court’s newly announced test. In doing so, we
needlessly prolong resolution of this case. The Court says that further
development of the factual record is necessary to apply its new test,
without specifying what additional facts to adduce or how, precisely, to
apply the test to any newly found facts. The Court also says a remand is
warranted because the trial court did not have the “benefit” of our
“analytical framework” the first time it heard the case. With today’s
opinion, the trial court now knows our “framework” but still lacks the
“benefit” of our guidance for applying it. I do not envy the trial court’s
task. Personally, I have no idea what today’s test means for Timbs’s
excessiveness claim. Instead of remanding for further proceedings, we
should apply our test and declare a winner.

   Here, as the Court observes, Timbs used the Land Rover both to obtain
drugs and to transport himself and the drugs to their place of sale. Thus,
his vehicle was the instrumentality of a crime—“the actual means by
which an offense was committed.” Bajakajian, 524 U.S. at 333 n.8. Applying




Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019    Page 2 of 3
this analysis, I would hold that the State’s forfeiture was not excessive
under the Eighth Amendment.




Indiana Supreme Court | Case No. 27S04-1702-MI-70 | October 28, 2019   Page 3 of 3
