Rush, C.J.
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?
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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 16,000 miles Timbs put on the vehicle over four months. …
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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.
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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.
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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 that the Excessive Fines Clause of the Eighth Amendment had not been incorporated against the States. 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.
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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.
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We take each excessiveness limitation in turn. We first explain why a use-based fine is excessive when the property was not an instrumentality of the underlying offenses. We then explain why the Excessive Fines Clause includes a proportionality limitation, and we outline its contours.
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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). …
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. …
… Timbs maintains that the State conceded at oral argument that the predicate offense was only the first controlled buy.
… 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?
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… 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 forfeiture falls within the Excessive Fines Clause’s instrumentality limit for use-based fines.
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… 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.
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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.
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
… 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.
ii. Severity of the Offenses
… 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.
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 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.
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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.
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We thus vacate and remand.
David, Massa, and Goff, JJ., concur.
Slaughter, J., dissents with separate opinion.
Slaughter, J., dissenting.
I respectfully dissent from 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. …
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. …
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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. … 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 this analysis, I would hold that the State’s forfeiture was not excessive under the Eighth Amendment.