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Supreme Court's October Term 2018 Contains Hints of Things to Come
In its recently ended October Term 2018, the U.S. Supreme Court decided several notable criminal law decisions. Although the Court refrained from reshaping criminal law in blockbuster opinions, the criminal cases from this term will have a meaningful impact on white-collar practitioners' work and, importantly, offer clues regarding the movement of the criminal law in subsequent terms. In this two-part article, we review several of the key decisions and consider their implications, both for practitioners in this area and for Court-watchers interested in future Court decisions.
Timbs v. Indiana: The Excessive Fines Clause Is Applicable to the States
In Timbs v. Indiana, 139 S. Ct. 682 (2019), the Supreme Court addressed whether the Excessive Fines Clause of the Eighth Amendment bars the states, in addition to the federal government, from imposing excessive fines on criminal defendants. After Timbs pleaded guilty in Indiana state court to a minor drug trafficking offense — a crime for which the maximum fine was $10,000 — the police seized his Land Rover SUV, worth $42,000. Although Timbs had purchased the Land Rover with legitimate funds, he then used it to transport drugs. The trial judge rejected the government's attempted forfeiture of the Land Rover, ruling that the seizure was grossly disproportionate to Timbs's crime in violation of the U.S. Constitution. The Indiana Supreme Court reversed, holding that the Excessive Fines Clause was not binding on Indiana, since the Supreme Court had never expressly held that it was incorporated by the due process guarantee in the Fourteenth Amendment.
The Supreme Court reversed unanimously, finding the case for incorporation to be "overwhelming." Citing common law protections against excessive fines dating back as far as the Magna Carta, the Court held that protection against excessive fines was deeply rooted in American history and traditions. Indiana did not "meaningfully challenge" the conclusion that some prohibition on excessive fines was incorporated against the states, instead arguing that the specific application of the Excessive Fines Clause to civil in rem forfeiture was neither fundamental nor deeply rooted. The court rejected Indiana's argument in short order.
Timbs continued the Court's recent trend of limiting the government's civil forfeiture authority. See, Honeycutt v. United States, 137 S. Ct. 1626 (2017) (holding that the government cannot seek forfeiture of property on a joint and several liability theory); Luis v. United States, 136 S. Ct. 1083 (2016) (limiting the government's ability to freeze a defendant's asserts on forfeiture grounds). This trend may encourage courts to consider exercising their rarely exerted authority to strike down grossly disproportionate forfeiture actions. See, H. Sandick et al., "Challenging Disproportionate Forfeitures," 25 Business Crimes Bulletin No. 9 (May 2018) ("only four courts of appeals have found a forfeiture to be excessive") (http://bit.ly/32HgfXT). Timbs also has a role to play in future incorporation debates: It has been cited by both parties in Ramos v. Louisiana, an October 2019 Term case in which the Supreme Court will consider whether juries in state criminal proceedings, must convict unanimously, as federal juries must.
Gamble v. United States: The Dual Sovereign Doctrine Is Not Dead After All
The Supreme Court was widely anticipated to revisit the dual sovereign doctrine — under which an individual can face successive and separate federal and state prosecutions for the same crime without running afoul of the Double Jeopardy Clause — in Gamble v. United States, 139 S. Ct. 1960 (2019). The dual sovereign doctrine has been recognized for nearly a century, going back at least to the Court's decision in United States v. Lanza, 260 U.S. 377, 382 (1922). Justices Thomas and Ginsburg, however, suggested recently that the decisions recognizing the dual sovereign doctrine should be overturned. See, e.g., Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1877 (2016) (Ginsburg, J. concurring).
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