Rush, C.J.
We chronicle and confront, for the third time, the State’s quest to forfeit Tyson Timbs’s now-famous white Land Rover. And, again, the same overarching question looms: would the forfeiture be constitutional?
Reminiscent of Captain Ahab’s chase of the white whale Moby Dick, this case has wound its way from the trial court all the way to the United States Supreme Court and back again. During the voyage, several points have come to light. First, the vehicle’s forfeiture, due to its punitive nature, is subject to the Eighth Amendment’s protection against excessive fines. Next, to stay within the limits of the Excessive Fines Clause, the forfeiture of Timbs’s vehicle must meet two requirements: instrumentality and proportionality. And, finally, the forfeiture falls within the instrumentality limit because the vehicle was the actual means by which Timbs committed the underlying drug offense.
But, until now, the proportionality inquiry remained unresolved—that is, was the harshness of the Land Rover’s forfeiture grossly disproportionate to the gravity of Timbs’s dealing crime and his culpability for the vehicle’s misuse? The State not only urges us to answer that question in the negative, but it also requests that we wholly abandon the proportionality framework from State v. Timbs, 134 N.E.3d 12, 35–39 (Ind. 2019). Today, we reject the State’s request to overturn precedent, as there is no compelling reason to deviate from stare decisis and the law of the case; and we conclude that Timbs met his burden to show gross disproportionality, rendering the Land Rover’s forfeiture unconstitutional.
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Timbs argues that the forfeiture statute is unconstitutional as applied to the facts of his case. The trial court agreed, determining that the forfeiture of his Land Rover—a use-based in rem fine—violated the Excessive Fines Clause.
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In Timbs II, this Court held that analyzing challenges to in rem actions, or actions against property, can involve a dual inquiry under the Excessive Fines Clause. Id. at 27. We first look to whether the property was the “instrument” by which the crimes underlying the State’s forfeiture case were committed. Id. at 28–31. If so, we next consider whether, under the totality of the circumstances, the punitive value of the in rem fine was “grossly disproportional” to the gravity of the underlying offenses and the owner’s culpability for the property’s criminal use. Id. at 35.
Here, there is no dispute that Timbs’s Land Rover was an instrumentality of the crime, as it was the actual means by which his dealing offense was committed. See id. at 31. The parties disagree, however, on proportionality—specifically, whether Timbs overcame the high burden to show that forfeiture of the vehicle was grossly disproportionate to the gravity of the underlying offense and his culpability for the Land Rover’s misuse. Timbs says he did; the State argues he did not.
And the State presents an additional, broader argument. Devoting nearly half its brief to challenging Timbs II, the State urges us to overturn our excessiveness framework in favor of an instrumentality-only test or, at a minimum, use the same gross-disproportionality standard courts have developed in Cruel and Unusual Punishments Clause cases.
As explained below, because the State presents no compelling reason to deviate from stare decisis and the law of the case, this Court rejects the invitation to overturn its recent precedent. And an independent, de novo review of the undisputed factual findings leads us to conclude that Timbs met his high burden to show gross disproportionality. But to provide context for this decision, we begin with an overview of Timbs II and the reasons underlying its holdings.
Just over two years ago, the Supreme Court of the United States unanimously held that the Eighth Amendment’s prohibition on excessive fines applies to the states. Timbs, 139 S. Ct. at 691. That decision, however, left open a critical question: how should a court determine whether a use based in rem forfeiture is excessive? See id. On remand, this Court provided the answer. Timbs II, 134 N.E.3d at 21.
Then, as now, the parties disagreed on how to measure excessiveness. See id. at 24. The State urged the Court to adopt an instrumentality-only test for in rem fines—one that would simply look at whether the property was an instrument of the crime. Id. And if it was, then the forfeiture wouldn’t run afoul of the Excessive Fines Clause. Id. Timbs, on the other hand, argued that the Clause includes not only an instrumentality limitation but also a proportionality one. Id. Ultimately, this Court agreed with Timbs. Id. at 27.
This Court explained that, to satisfy the Excessive Fines Clause’s instrumentality test, the property must be the “actual means” by which the relevant crimes were committed. Id. at 30–31. And we concluded Timbs’s Land Rover was the instrument of his predicate dealing offense. Id. at 31.
We then explained, in significant detail, why the excessiveness inquiry for use-based in rem fines also entails a proportionality analysis. Id. at 31– 35. We evaluated other jurisdictions that have considered the issue, the text and history of the Excessive Fines Clause, the history of traditional in rem forfeitures, and relevant Supreme Court precedent. Id. at 26–27, 31–35. And like the vast majority of courts to address the question, we concluded that gross—not strict—disproportionality was the appropriate standard for assessing the excessiveness of in rem forfeitures. Id. at 35. Such a standard reflects two important principles about the relationship between an offense and the degree of punishment imposed by the in rem fine: that “judgments about the appropriate punishment for an offense belong in the first instance to the legislature” and “any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise.” Id. (quoting United States v. Bajakajian, 524 U.S. 321, 336 (1998)).
We next noted that the nature of in rem fines required the inquiry to focus on three major considerations: the harshness of the punishment, the severity of the offenses, and the claimant’s culpability. Id. at 35–38. Specifically, we look to the totality of the circumstances and analyze whether the forfeiture’s punitive value “is grossly disproportional to the gravity of the underlying offenses and the owner’s culpability for the property’s criminal use.” Id. at 35. We described the inquiry as “fact intensive” and spelled out various nonexclusive factors courts could take into account when applying the standard. Id. at 35–38.
Regarding the culpability consideration, we suggested courts focus on “the claimant’s blameworthiness for the property’s use as an instrumentality of the underlying offenses.” Id. at 37. Under the harshness-of-the-punishment consideration, a court could consider the property’s role in the underlying offense; its use in other activities, criminal or lawful; the extent to which its forfeiture would remedy the harm caused; the property’s market value; other sanctions imposed; and the effects the forfeiture will have on the claimant. Id. at 36. And when examining the severity of the underlying offenses, courts can look to the seriousness of the offense, considering statutory penalties; the seriousness of the specific crime committed compared to other variants of the offense, looking at sentences imposed; the harm caused by the crime committed; and the relationship of the offense to other criminal activity. Id. at 37.
Regarding the culpability consideration, we suggested courts focus on “the claimant’s blameworthiness for the property’s use as an instrumentality of the underlying offenses.” Id. at 37. Under the harshness-of-the-punishment consideration, a court could consider the property’s role in the underlying offense; its use in other activities, criminal or lawful; the extent to which its forfeiture would remedy the harm caused; the property’s market value; other sanctions imposed; and the effects the forfeiture will have on the claimant. Id. at 36. And when examining the severity of the underlying offenses, courts can look to the seriousness of the offense, considering statutory penalties; the seriousness of the specific crime committed compared to other variants of the offense, looking at sentences imposed; the harm caused by the crime committed; and the relationship of the offense to other criminal activity. Id. at 37.
But one question remained. Did the Land Rover’s forfeiture fit within the Excessive Fines Clause’s proportionality limit? Or, more specifically, was the harshness of the in rem fine grossly disproportionate to the gravity of Timbs’s underlying dealing offense and his culpability for the vehicle’s corresponding criminal use?
Because the trial court did not have the benefit of that analytical framework, the record did not contain enough facts for us to answer that question. Id. at 39. We accordingly remanded the case to the trial court to determine whether Timbs had overcome his burden to establish gross disproportionality. Id
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Specifically, the State asks us to abandon the proportionality framework from Timbs II in favor of an instrumentality-only test for in rem forfeitures. And it further argues that, should this Court choose to retain a gross-disproportionality standard, it should adopt the one that applies when determining whether there has been a violation of the Cruel and Unusual Punishments Clause of the Eighth Amendment.
For his part, Timbs contends that the State “recycles” the arguments this Court already rejected in Timbs II. According to Timbs, the State has failed to explain why this Court should depart from the principles of stare decisis and the law of the case to overturn its previous decision. We agree with Timbs.
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Ultimately, Timbs II’s adoption of the gross-disproportionality analysis was based on a number of reasons—signals from the U.S. Supreme Court that proportionality was a necessary piece of the excessiveness inquiry for in rem fines; the recognition that almost all courts have rejected the State’s proposed instrumentality-only test; 2 the fact that modern in rem forfeitures are divorced from their historical roots; and the text and history of the Excessive Fines Clause. Nothing persuades us that those reasons now, a mere nineteen months after Timbs II was handed down, lack merit.
We now independently apply the test Timbs II developed.
On remand, the trial court held an evidentiary hearing so the parties could supplement the existing record. Three witnesses testified. Tyson Timbs described his journey through addiction, recovery, and reintegration, as well as the hardships created by the State’s seizure of his vehicle. Jason Phillips provided expert testimony about the Land Rover’s value on the date it was seized. And Christina Byers gave testimony as to the obstacles offenders face as they seek to reintegrate into society after being prosecuted and sentenced. The State neither called any witnesses nor presented any evidence.
The trial court subsequently issued a fourteen-page order with findings and conclusions, determining that Timbs had “by a significant margin” overcome his burden to establish gross disproportionality. The State disputes this determination. Though it doesn’t challenge the court’s factual findings, the State argues that the trial court misapplied the Timbs II framework and that each of the three major considerations—Timbs’s culpability, the harshness of the punishment, and the severity of the offense—weighs in favor of proportionality. For his part, Timbs contends that the trial court “faithfully” applied the factually intensive, totality-ofthe-circumstances standard from Timbs II.
After carefully and independently analyzing the unchallenged facts under the gross-disproportionality framework, we agree with the trial court: Timbs met the high burden of showing gross disproportionality.
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The trial court applied the undisputed facts to the Timbs II considerations and concluded that Timbs’s culpability was high, the Land Rover’s forfeiture was more punitive than remedial, and the severity of the underlying dealing offense was minimal.
The State takes issue with the court’s treatment of the latter two considerations—the harshness of the punishment and the offense’s severity—while neither party disagrees with the court’s conclusion regarding Timbs’s blameworthiness. Although this Court acknowledges several flaws in the trial court’s order, our de novo proportionality analysis leads us to largely share the court’s view on the challenged Timbs II considerations. Specifically, in light of the undisputed facts, we also conclude that, while Timbs was very blameworthy for the property’s misuse, the in rem fine was overly harsh, and the dealing crime was of lesser severity.
Our own analysis begins with Timbs’s blameworthiness. Though this is the last factor discussed in Timbs II, we address it first today, as both parties agree on how that consideration should be evaluated.
Neither the State nor Timbs disputes the trial court’s conclusion as to this first consideration. The court observed that Timbs’s culpability is on the “high end of the spectrum” because he has always acknowledged that he used the Land Rover, which he owns, to commit the underlying offense of dealing.
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After addressing culpability, we move on to the in rem fine’s harshness, taking into account the following factors from Timbs II: the Land Rover’s role in the underlying offense; its use in other activities, criminal or lawful; the extent to which its forfeiture would remedy the harm caused; the vehicle’s market value; other sanctions imposed on Timbs; and the effects the forfeiture will have on him. Id. at 36.
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Ultimately, our review of the relevant harshness factors leads us to the same conclusion reached by the trial court: the forfeiture of Timbs’s Land Rover was considerably punitive. We acknowledge that the Land Rover’s role in the underlying offense and its use in other criminal activities shows that, to some degree, the seizure was remedial. But the other factors—the extent to which the vehicle’s forfeiture would remedy the harm caused; the Land Rover’s market value; other sanctions imposed on Timbs; and the effects the forfeiture will have on him—reveal that the purpose of the use-based in rem forfeiture was to significantly punish Timbs.
After addressing the harshness of the punishment, we move on to the severity of the offense. And in evaluating that next consideration, the trial court assessed factors from Timbs II: the seriousness of the statutory offense, considering statutory penalties; the seriousness of the specific crime committed compared to other variants of the offense, taking into account any sentences imposed; the harm caused by the crime committed; and the relationship of the offense to other criminal activity.
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Accordingly, our review of the severity-of-the-offense factors leads us to reach the same conclusion as the trial court: the severity of Timbs’s offense was minimal. We acknowledge that the potential penalties for the crime were considerable. But the remaining factors—the seriousness of Timbs’s specific crime, for which he received the minimum possible sentence; the harm caused by dealing two grams of heroin to an undercover police officer; and the relationship of the dealing to Timbs’s earlier actions in purchasing drugs to feed his addiction—reveal the minimal severity of Timbs’s offense.
After considering the major proportionality considerations—that is, the harshness of the punishment, the severity of the offense, and the claimant’s culpability—the trial court determined that Timbs had shown gross disproportionality. Our independent weighing of the considerations yields the same result.
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As explained above, even though Timbs’s blameworthiness was high, the in rem forfeiture was highly punitive and thus overly harsh, and the severity of the crime underlying the forfeiture case was minimal. After weighing these factors, we conclude that, under the totality of the circumstances, the harshness of the Land Rover’s forfeiture was grossly disproportionate to the gravity of the underlying dealing offense and his culpability for the vehicle’s corresponding criminal use. In other words, Timbs met his burden.
To be sure, the Land Rover’s forfeiture is not unconstitutional just because Timbs was poor. Or because he suffered from addiction. Or because he dealt drugs to an undercover officer and not someone who would use them. And it’s not simply because the vehicle’s value was three-and-a-half times the maximum fine for the underlying offense. Or because he received the minimum possible sentence for his crime and wasn’t a sophisticated, experienced dealer. Or because the car, his only asset, was essential to him reintegrating into society to maintain employment and seek treatment. Rather, it’s the confluence of all these facts that makes Timbs the unusual claimant who could overcome the high hurdle of showing gross disproportionality.
Importantly, the facts are undisputed. After the latest forfeiture hearing—during which the State neither called witnesses nor moved to admit evidence—the trial court entered factual findings that neither party claimed were clearly erroneous. Analyzing those facts under the totality of-the-circumstances proportionality framework leads us to the gross-disproportionality conclusion we reach today.
And such a conclusion will not upend forfeitures in Indiana. The State contends that if this Court rules in Timbs’s favor, it would essentially render unconstitutional “most forfeitures premised on drug-trafficking offenses.” To the contrary, the Timbs II proportionality framework is factually intensive and dependent on the totality of the circumstances. Nothing compels a different drug dealing case, with different facts, to automatically be decided in favor of the claimant just because Timbs cleared the high threshold to show gross disproportionality. True, trial courts will ask the same questions for any proportionality challenge to a use-based in rem fine. How harsh is the forfeiture? How serious was the predicate offense? And how blameworthy was the owner for the property’s involvement in the crime? The answers, however, will depend on the particular facts of the case.
Applying the proportionality framework set forth in Timbs II, we conclude that Timbs met his high burden to show that the harshness of his Land Rover’s forfeiture was grossly disproportionate to the gravity of the underlying dealing offense and his culpability for the vehicle’s misuse. Accordingly, we affirm the trial court; and the seven-plus-year pursuit for the white Land Rover comes to an end.
David, J., and Goff, J., concur.
Slaughter, J., concurs in the judgment with separate opinion.
Massa, J., dissents with separate opinion.
Slaughter, J., concurring in the judgment.
The excessiveness test we announced in State v. Timbs, 134 N.E.3d 12 (Ind. 2019), and apply today has two dimensions: instrumentality and proportionality. See id. at 28. Instrumentality is not at issue here because Timbs acknowledges using the forfeited vehicle to traffic heroin. But proportionality is. I dissented in Timbs because the Eighth Amendment does not—either as written or as interpreted by the Supreme Court of the United States—require proportionality as part of the excessiveness inquiry for in rem forfeitures. Id. at 40–41 (Slaughter, J., dissenting). But my view did not prevail, and our Court’s proportionality requirement is the law of this case. Thus, I accept here (albeit reluctantly) our holding that forfeiting a criminal instrumentality is excessive if grossly disproportionate to the underlying offense.
I concur in today’s judgment because the Court’s application of our newly minted test is at least plausible and defensible. It is not, to be sure, the only permissible application of our test. And I am not even sure it is the best application. But by crafting a test that relies so heavily on a judge’s subjective sensibilities, the Court has removed the inquiry almost entirely from a judge’s core area of expertise—objective analysis—and placed it instead where judges have no special insight: where only highly subjective, value-laden judgments prevail. By doing so, we have created a test largely insulated from principled debate and review.
Though I concur in the Court’s judgment, I write separately to highlight my deep concerns with what our excessiveness test means and how lower courts will apply it in future cases. In practice, our test is likely so manipulable that future applications to the same or similar facts will yield different legal conclusions from case to case. It is hardly surprising that some will assign varying weights to the relevant factors and subfactors, thus balancing the scales differently.
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I am all for revisiting our test in Timbs, 134 N.E.3d 12, at the appropriate time, unless the Supreme Court beats us to the punch. For now, however, I accept that our holding in Timbs is the law of this case and agree that the Court’s application of our multifactor balancing test is defensible. While I likely would have weighed these factors differently than the Court, the arbitrary nature of our test means it is not susceptible to principled, bright-line distinctions—any more than are disputes among sports fans armed with reams of statistical data over which athlete is best (or better than another) at his position, on his team, of all time. Like agreed facts, raw statistics may be a given, but what those data show and what conclusions they drive are in the eye of the beholder.
For example, Cubs and Cardinals fans likely have their own views of whether Greg Maddux or Bob Gibson was the better pitcher. Gibson was more dominant and threw harder. Maddux threw with more finesse, painting the corners with off-speed pitches. Maddux has 355 career wins to Gibson’s 251, but Maddux played six more seasons. Maddux has 3,371 career strikeouts to Gibson’s 3,117. But Gibson has the lower ERA (earned run average)—2.91 versus Maddux’s 3.16. Compare Bob Gibson, https://www.mlb.com/player/bob-gibson-114756 [https://perma.cc/5HWA6VWZ], with Greg Maddux, https://www.mlb.com/player/greg-maddux118120 [https://perma.cc/36JL-CMAF]. Which athlete prevails in such “debates” is the source of endless back-and-forth among baseball fans in local watering holes.
In contrast, the legal debate before us is not for fun or sport. It involves the serious business of pronouncing what the law is—what it permits, what it requires, what it forbids. The law we interpret for the public we serve demands more than our subjective “totality” test can sustain.
For these reasons, I concur in the Court’s judgment but do not join its opinion.
Massa, J., dissenting.
The Court offers a compelling case for letting the beleaguered Tyson Timbs keep his Land Rover after all these years. And the opinion, much to its credit, goes the extra mile in its concluding paragraphs to note and predict that Timbs will be the rare heroin dealer able to show gross disproportionality when his car is forfeited. Still, I respectfully dissent.
The forfeiture here was indeed harsh, perhaps even mildly disproportionate, given all the facts in mitigation. But I part ways with the Court’s holding that it was grossly so. Such a conclusion can only be sustained by finding the severity of the underlying felony to be “minimal,” as the Court holds today. I am skeptical that dealing in heroin can ever be a crime of minimal severity. No narcotic has left a larger scar on our state and region in recent years, whether overly prescribed or purchased illicitly on the street.
Nor can I join the opinion’s characterization of the tenacity of three different elected attorneys general as being akin to Ahab’s monomaniacal pursuit of Moby Dick. The analogy is emotive and appealing but takes no notice of the State’s motivation to vindicate a larger constitutional principle. Much of the State’s briefing urges a reconsideration of our holding in State v. Timbs (Timbs II), 134 N.E.3d 12, 27 (Ind. 2019), adopting a proportionality rather than instrumentality test when applying the Eighth Amendment to in rem forfeitures. The Supreme Court of the United States has never answered that precise question; perhaps now it will have another opportunity to paint a brighter line, thanks to the State’s persistent advocacy.