Dude, Where’s My Car? SCOTUS Could Finish Incorporating the Eighth Amendment

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“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” – VIII Amendment

Mr. Tyson Timbs found himself in an all-too-familiar story probably seen by nearly every district attorney in the country. After the defendant in this case pleaded guilty to two felonies related to selling drugs. On top of a prison sentence, the State of Indiana sought to seize Mr. Timbs’ $42K Land Rover, which he had purchased with (by all accounts) legitimate insurance proceeds and used to transport heroin.  The trial judge, however, found that the “forfeiture would be an excessive fine under the Eighth Amendment.”  Whether done knowingly or not, who knows, but the trial judge kicked off the latest chapter in a constitutional saga spanning more than a century.

While most people are familiar with the term “incorporation” in a wholly different context, the Incorporation Doctrine may hold the greatest consequence of any legal notion to affect the lives of most Americans.   Many novices to constitutional law might be surprised to learn that the Bill of Rights originally offered no protections to individuals from state (as opposed to federal) action.  (Keep in mind that while the liberties enshrined in the First Amendment are discussed by millions on any given day, the first word of the Amendment is “Congress.”)  That all changed with the Civil War Amendments, as did the basic accepted norms of the relationship between the federal government and the several states.  Without digging into the all of the particulars, from the Slaughterhouse Cases from the 19th Century to the application of Second Amendment protections through the 14th Amendment to the states for the first time just eight years ago, suffice it to say that the Supreme Court began to see protections in the first ten amendments (well, really just the first eight) as fundamental to due process even in state courts.  In other words, the Supreme Court began making provisions of the Bill of Rights applicable to the states as well as the federal government by being “incorporated” into the 14th Amendment’s Due Process Clause.

Nearly every provision of the first eight amendments to the Bill of Rights that you’ve heard of were incorporated in the 20th Century.  Exceptions include protections against the quartering of troop in homes (probably because nobody has had occasion to ask), right to jury trials in civil cases where at least $20 is sought (enough to buy two vowels on Wheel of Fortune with change to spare in 2018 dollars), and *drumroll* the Excessive Fines Clause of the Eighth Amendment.  Will this Court incorporate?  Get your forecast in now!


Ryan Adler is a Superforecaster and Director at Good Judgment who specializes in legal analysis for Good Judgment’s question writing team. He also administers the SCOTUS Challenge on Good Judgment Open, which invites probabilistic thinking about court decisions. Ryan can be reached at adler@goodjudgment.com.

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