Timbs v. Indiana (17-1091)

argument 17-1091

Timbs v. Indiana

Supreme Court of the United States 56 min 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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Does the Excessive Fines Clause apply to the states?

John G. Roberts 0:00

We'll hear argument

Mr. Hoddit 0:01

this morning in case 17-1091, Timms v. Indiana. Mr. Hoddit? Mr. Chief Justice, and may it please the Court, the freedom from excessive fines applies to the states because it is deeply rooted in our nation's history and traditions and fundamental to our scheme of ordered liberty. The state of Indiana appears not to dispute that straightforward answer to the actual question presented. And for good reason. The freedom from excessive fines easily warrants incorporation alongside the Eighth Amendment's other protections. This court has said just that five times over the last 30 years. Without addressing the incorporation question directly, the state asked whether the clause applies to the states the same way that it applies to the federal government.

Mr. Hoddit 0:48

But 50 years of incorporation precedent holds that incorporated Bill of Rights protections apply to the states the exact same way that they apply to the federal government. There's no reason to adopt the so-called two-track approach at this late stage of the incorporation doctrine, especially—

Unknown 1:06

If that's so of all incorporations, what about the non-unanimous jury in criminal cases?

Mr. Hoddit 1:13

Justice Ginsburg, as the Court recognized in McDonald, the non-unanimous jury in criminal cases is an anomalous decision that results from a one-justice concurrence in the Apodaca case. And there's no reason, as the court recognized in McDonald, for that to control when there's over 50 years of precedent, beginning in Malloy versus Hogan, Mapp, Aguilar, again in McDonald, rejecting that two-track approach. Adopting the two-track approach at this late stage would only invite further litigation about rights that are already incorporated. When this court interpreted the Fourth Amendment right to be free from having your cell phone tracked in the Carpenter case, if my friend's argument were correct, we would have to relitigate whether that right applies to the states.

Mr. Hoddit 2:03

Virtually all of the Bill of Rights, with the one exception noted by Justice Ginsburg, has been incorporated on the right-by-right approach used in McDonald, not on the application-by-application approach proposed. There are a few others that have not been incorporated. Isn't that right? Oh, that's true. Absolutely. But That's either because they haven't been addressed by this court, like in the case of the Third Amendment right against quartering soldiers, or because as the court recognized in McDonald, they long predate the era of selective incorporation. So I think it's possible that if the rights at issue in Bombalus and Hurtado were to come before this court today, the results might be different.

Mr. Hoddit 2:42

But we don't have to get into that history here because the history on the question presented of whether the excessive fines clause applies to the states is clear. What is the provision in the

Samuel A. Alito 2:53

Constitution that you rely on? The Section 1 of the 14th Amendment, Your Honor. It's a component of the liberty that's substantively protected by the Fourth Amendment process clause?

Mr. Hoddit 3:07

Yes, Your Honor. And we also have an alternative argument under Section 1's privileges or immunities clause.

Unknown 3:14

That would be about non-citizens.

Mr. Hoddit 3:17

Yes, textually, Justice Ginsburg, that would leave out non-citizens, but of course, petitioner is a citizen, and that could be a decision for another day. It's also true that the fundamental and deeply rooted rights that are currently incorporated under the due process clause apply to non-citizens, and they would continue to do so regardless of the court's reasoning in this case.

John G. Roberts 3:36

Well, but you can see there's different arguments about whether, and this gathers the state's primary submission, whether excessive fines are prohibited and whether... civil in-rem forfeitures are. And I certainly understand the argument that the disproportion and excessiveness arguments would be quite different with respect to forfeiting the instrumentalities of the crime. I mean, an argument could be made, well, that's always proportionate since it's the way the crime

Mr. Hoddit 4:05

is accomplished.