In a unanimous decision by Justice Ruth Bader Ginsburg issued February 20, 2019, the Supreme Court of the United States ruled in Timbs v. Indianathat the Eighth Amendment’s protection against excessive fines applies to the states via the Fourteenth Amendment’s Due Process clause. The decision may strike a blow at the heart of many states’ civil asset forfeiture laws, which enable law enforcement officials to confiscate property believed to have been used in connection with a crime, but which have been criticized for depriving owners of property without due process protections and for giving the police a financial incentive in the administration of justice.
Tyson Timbs pleaded guilty in an Indiana trial court to distributing a small amount of heroin and was sentenced to home detention, probation, and payment of fines and costs. The police seized his Land Rover automobile, valued at $42,000, under Indiana’s asset forfeiture law, alleging that the vehicle had been used to transport the heroin. Timbs demonstrated that the Rover had been purchased not by any illegal activity, but with the proceeds of an insurance policy on his late father’s life. The vehicle had indeed been used to transport heroin, but Timbs argued at trial and the court agreed that forfeiture of the Land Rover would constitute an excessive fine in violation of the Eighth Amendment, because the maximum fine for the distribution offense was $10,000. The Indiana Court of Appeals affirmed, but the Indiana Supreme Court reversed, holding that the prohibition on excessive fines had not been incorporated against the states and therefore restrained only the federal government from disproportionate impositions. Tracing its history from Magna Carta through the English Bill of Rights, then the Virginia Declaration of Rights, and finally to the Bill of Rights to the United States Constitution, the Court found the constitutional protection against excessive fines to be “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition” and held that it applied to the states, including Indiana, in the same way that the Eighth Amendment proscribes the states from imposing cruel and unusual punishments and excessive bail.
Under Virginia’s civil asset forfeiture law, property condemned as forfeited to the Commonwealth is divided among state and federal law enforcement agencies and a fund administered by the Department of Criminal Justice Services. This disbursement scheme generated approximately $5.8 million for local and $3.6 million for federal law enforcement agencies in 2018. The forfeiture is independent of the related criminal proceeding, and in fact the criminal case need not even have been concluded before the property is condemned. Although there are exemptions for innocent third-party owners and lien holders, they still must appear in the case and show by a preponderance of the evidence that one of the exemptions to forfeiture applies. A successful defendant can recover her attorney’s fees, and the Commonwealth must prove its case for forfeiture by clear and convincing evidence—a higher burden of proof for the government than in many states—, but this is little comfort to the innocent party in interest who must pay an attorney out of his pocket until the case is concluded to protect his interest. Because the police benefit financially from forfeitures, must only show probable cause to begin the proceeding, can seize the property pending trial, and are represented by the Commonwealth’s Attorney or Attorney General’s office, the government has multiple incentives to pursue forfeitures often and even in cases where a defense or exemption is likely to apply. For example, a landlord whose tenant possessed or manufactured narcotics in a rental unit without the landlord’s knowledge or permission is likely to prevail at trial, but the landlord may have to walk a long and expensive road to get to court and win the case. Another example is that of a motorist stopped for a minor traffic infraction while possessing a sum of cash that looks suspicious to the police officer–this scenario plays itself out again and again and effectively punishes the act of carrying cash.
Applying the Excessive Fines Clause to the states may limit
the incentives to “police for profit” and reduce its unfair impacts on innocent
third-party owners and lienholders and over-punished criminal defendants alike.
Time will tell what effects Timbs
will have on Virginia civil asset forfeiture practice, but the statutory scheme
remains stacked in the government’s favor, and readers facing forfeiture
proceedings should seek the advice of an attorney.
 No. 17-1091 (U.S. Feb. 20, 2019).
 The Eighth Amendment to the United States Constitution provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
 Anne Teigen and Lucia Bragg, Evolving Civil Asset Forfeiture Laws, 26 LegisBrief No. 5 (Feb. 2018), available at http://www.ncsl.org/research/civil-and-criminal-justice/evolving-civil-asset-forfeiture-laws.aspx.
 Timbs, slip op. 1-2. The Indiana Supreme Court did not decide whether the forfeiture constituted an excessive fine, overruling the inferior courts only on the ground that the Excessive Fines Clause had not been incorporated against the states.
 Id., at 4-7.
 Va. Code § 19.2-386.14.
 Shannon Dion, Report of Forfeited Asset Sharing Program Funds Distributed to Law Enforcement Agencies During Fiscal Year 2018 (2018), https://www.dcjs.virginia.gov/sites/dcjs.virginia.gov/files/publications/dcjs/2018-forfeited-asset-sharing-annual-report.pdf.
 Va. Code § 19.2-386.10.
 Va. Code § 19.2-386.8.
 Va. Code § 19.2-386.10.
 Va. Code § 19.2-386.12.
 Va. Code § 19.2-386.10.
 James Simon, Note, Civil Asset Forfeiture in Virginia: An Imperfect System, 74 Wash. & Lee L. Rev. 1295, 1299 (2017).
 Va. Code § 19.2-386.2.
 Va. Code § 19.2-386.1.
 Simon, supra note 13, at 1297.
 Simon, supra note 13, at 1296-97.
 See, e.g., Deanna Paul, Police Seized $10,000 of a Couple’s Cash. They Couldn’t Get It Back—Until They Went Public, Wash. Post, Aug. 31, 2018, https://www.washingtonpost.com/nation/2018/09/01/police-seized-couples-cash-they-couldnt-get-it-back-until-they-went-public/?utm_term=.2143c9be4320; German Lopez, “It’s Been Complete Hell”: How Police Used a Traffic Stop to Take $91,800 From an Innocent Man, Vox, Dec. 1, 2017, https://www.vox.com/policy-and-politics/2017/12/1/16686014/phillip-parhamovich-civil-forfeiture; Matt Powers, Federal Appeals Court Rules Cash Seizure in Nevada Violated the Fourth Amendment, Inst. for Justice, June 20, 2017, https://ij.org/appeals-court-roadside-stop-seize-violated-constitution/.