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Federal Sentencing Reporter

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The U.S. Supreme Court’s decision in Timbs v. Indiana buoyed the hopes of those who saw it as a powerful signal to states and municipalities to rein in excessive fines and forfeitures. One commentator deemed it “a blow to state and local governments, for whom fines and forfeitures have become an important source of funds.” That may have been an overstatement. The Court seems disinclined to fill the term proportionality with robust meaning or wrestle with Eighth Amendment challenges to fines and fees. Those steps would be required for the Excessive Fines Clause to function as an effective backstop against revenue-raising and increasingly abusive local and state practices. In the end, state courts and state legislative changes may be more likely to address effectively the essential question of what is excessive and to restrain criminal justice actors from imposing ever heavier financial burdens on those caught up in the system.

This article first sets out the Supreme Court’s decision in Timbs in light of the incorporation debate and prior case law in the area. Next it turns to the underlying but unaddressed contours of the term excessive in the context of fines and forfeitures. The article then provides a broader look at forfeiture, including the interplay between state and federal law enforcement in the area. Both sides rely on forfeited funds to support current law enforcement practices. Finally, the article addresses state and local fines and fees, which will also now be subject to Eighth Amendment analysis. The Court, however, rejected the first opportunity to take a challenge. At least for now, litigants may be more successful in reining in abusive fines and forfeitures in state legislatures and state courts.



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