I’ve Already Been Punished Once

Does the punishment really fit the crime?

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If you are convicted of a crime, can the police take hold of your personal property as part of your sentence? Forfeiture has resulted in many individuals losing some of their most valuable possessions. It has not helped police fight the War on Drugs and it remains one of the largest threat to personal property rights.

Mentions:

Throughout this episode Tess Terrible talked with; Tyson Timbs, Sam Gedge, Theshia Naidoo, Solicitor General Fisher, and Natalie Dowzicky.

We also included Oral Argument from Timbs v. Indiana at the Supreme Court of the United States

Image Credit: Institute for Justice

Music by Cellophane Sam

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00:14 Tess Terrible: Last season on The Pursuit.

00:17 Christina Sandefur: We hear life, liberty, and property that the Lockean version or life, liberty, and the pursuit of happiness, which was something that the Founding Fathers of course used in the Declaration of Independence, and I think it’s really interesting and important that property was replaced with pursuit of happiness because I think that tells us a lot about Founding Fathers’ concept of property, right?

00:41 Gerado Serrano: I haven’t done anything wrong. You can’t do this. So as we’re talking, the next thing I heard was one of the guys say, “We got him.” He yells out, “We got him.” And I’m thinking, “What has he got?”

00:57 Susette Kelo: I think people really need to remember what happened to us, and I think another thing too, that people need to realize that they can say no, can attempt to keep what’s there is an attempt to do the right thing.

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01:13 Tess Terrible: This is The Pursuit, a podcast about government action and individual liberty. I’m Tess Terrible.

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01:25 Tess Terrible: Last season on The Pursuit, we followed many stories about individuals who were directly impacted by civil forfeiture but these individuals were never charged with a crime. On this episode, we are talking to someone who was convicted of a crime. This is Tyson Timbs.

01:43 Tyson Timbs: I grew up an Army brat. My dad was in the Army for 20 years. We moved around a lot until I was about 14 and then that’s when we settled in Ohio. I was just a regular Midwestern teenager, I had good parents, so my background wasn’t like some of the stories of other addicts that I’ve heard that had terrible childhoods. Mine was good, I got a good job eventually, I worked in a factory, place around where I’m from, one of the places that people wanna work ‘cause it’s a good job. So I thought I was on my way to being a responsible adult. And I have bad feet, so I went to the podiatrist to see what they can do and I needed insoles for my work boots and they had to order them so she wrote me a prescription for hydrocodone, and that’s when my problem started. I started taking them how I was supposed to, but it wasn’t very long before I was throwing an extra one in here and there, then I started running out of my prescriptions before they were supposed to be out.

03:00 Tyson Timbs: Eventually, the doctor said she couldn’t do it anymore, she wasn’t writing anymore prescriptions so I started buying pills on the street from people. I did that for a long time, quite a few years actually, and surprisingly, I functioned pretty well, it didn’t cause much of a problem for a long time. I seemed normal to me. My dad, he tried but I know he didn’t know what to do. There’s nothing he can do ‘cause I wasn’t ready. It was pretty hard on him the last year of his life. This is how crazy that I was as an addict. My dad had a prescription for the fentanyl pain patches and they’re so strong you only get seven in a prescription, so it’s not like you’re gonna lose one. And I stole one from me and he found out about it obviously, and he asked me about it, and I actually got mad at him.

04:05 Tyson Timbs: And now that I think back, it’s hard to even wrap my head around that idea, that I got mad at him because I stole from him and he just asked me about it. I ended up leaving, I left that day. And this part is hard for me to talk about. He called me everyday for six months. I didn’t talk to him. And yeah, he didn’t know if I was dead or… And it’s always to say, “Hey, buddy, it’s dad. Just checking to make sure you’re alright. Call me back.” I finally did talk to my dad. I called him after six months and we talked a few times between then and when he died, but it was hard on him. He tried but I wasn’t ready.

05:20 Tess Terrible: After Tyson’s dad died, Tyson received a large sum of money from his father’s life insurance policy. He decided to buy a brand new car, a Land Rover. He spent much of the remaining money on purchasing illegal drugs and participating in drug sales as well. After selling about $225 worth of drugs to undercover cops, he was arrested in November of 2013.

05:48 Tyson Timbs: The officer that pulled me over said something about, they were looking for a hit and run, and it looked like it was a white SUV so I didn’t think anything of it. Asked if he could look around my truck and he walked around and then… So he asked me to get out and he asked if he could get to call the K9 unit to come and check things out and I said, “Sure.” So the dog went around a few times and I thought we were about done, I thought, “Okay, nothin’. They haven’t found anything so they’re gonna let me go,” and pretty soon the dog hit on my side of my truck and they cuffed me and took me to jail.

06:37 Tess Terrible: Tyson was tried, convicted, and sentenced to one year of house arrest, five years probation and $1200 in fines, which he paid on time. Tyson served his sentence and he’s been clean for five years. He attended rehab and he speaks openly about his struggle with drug addiction. As part of his sentence, the State of Indiana confiscated his Land Rover because Tyson had used the vehicle to transport the drugs. The state argued that his car was an accessory to his drug selling and refused to release it to him. After going through rehab, he decided to file suit against the state, arguing that he had already successfully served his sentence and for the Indiana Police to seize his vehicle, not to mention his only mode for transportation, was excessive and in violation of the Eighth Amendment Excessive Fines Clause. This is Sam Gedge from the Institute for Justice. He is sitting co-counsel on this case.

07:39 Sam Gedge: So the case started with Tyson Timbs when police in Grant County, Indiana seized his car and have spent the past five years trying to take it through a process called civil forfeiture. The trial court in Tyson’s case said that taking his car would violate the Excessive Fines Clause of the Eighth Amendment, that it would be disproportionate to his offenses to take his most valuable piece of property. The Indiana Court of Appeals agreed, but then when the case reached the Indiana Supreme Court, that court disagreed and they said, even if taking Tyson’s car would be excessive that doesn’t matter because the Excessive Fines Clause doesn’t apply at all to the State of Indiana. And that’s the issue that we brought up now before the Supreme Court.

08:18 Tess Terrible: The Indiana Court of Appeals agreed that taking Tyson’s car was excessive, but when the case went to the Indiana Supreme Court, they said it didn’t matter because the United States Supreme Court hasn’t ruled that the Excessive Fines Clause of the Eighth Amendment applies to the states. This means that if you or I were arrested, charged and convicted under state law, we would not have protection against excessive fines. So if I was issued a parking ticket where I live in Virginia, I could be charged $200, but I could also be charged $20,000. So the Supreme Court decided to hear this case and determine if we have protection against excessive fines. It’s important to emphasize that if the Supreme Court rules in Tyson’s favor, it would not specifically abolish civil forfeiture, the Supreme Court is only determining whether or not the Excessive Fines Clause applies to the states.

09:17 Tess Terrible: I wanna back up a little bit and just ask you plainly what is the Excessive Fines Clause?

09:23 Sam Gedge: So the Excessive Fines Clause is one of three clauses in the Eight Amendment, to the US Constitution, the most famous of the three clauses is the Cruel and Unusual Punishments Clause. There’s also the Excessive Bail Clause and then there’s the provision saying that excessive fines cannot be imposed either. All three clauses have a very rich heritage, they date back to the English Bill of Rights in the 1680s and beyond that to the Magna Carta. And the Excessive Fines Clause in particular embodies a really fundamental notion, which is that the government cannot take all of your property or take an excessive amount of your property if they want to punish you.

09:58 Sam Gedge: So the Excessive Fines Clause is a vital check on the government’s power to use economic sanctions to punish people. And increasingly in recent decades, this has become an increasingly important check as federal government, as the state governments, as local governments more and more turn to fines and forfeitures, not necessarily to do justice but rather to bolster their own revenues. Increasingly, you’re seeing all levels of government levying economic sanctions to try to bring in more money, oftentimes for the very agencies that are enforcing the law. What this case will do is make clear that state governments, local governments, just like the federal government, cannot impose constitutionally excessive civil forfeitures.

10:41 Tess Terrible: Yeah, I can’t help but wonder what does the State of Indiana want with Tyson’s car?

10:46 Sam Gedge: Well, they want a $40,000 Land Rover and there is a nationwide phenomenon where we see civil forfeiture and other kinds of economic sanctions being used very aggressively, precisely because police and prosecutors have a built-in incentive to try to get as much property as they can.

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11:07 Sam Gedge: In many states and at the federal level, it allows government to take people’s property without charging them with a crime, without convicting them of a crime, and there is the additional built-in incentive for police and prosecutors to use civil forfeiture aggressively, not to do justice but instead to bring in more money for their own agencies.

11:27 Tess Terrible: Tyson’s paid his debt to society, he has taken responsibility for what he has done, paying fees and seeking drug treatment. He has a job and has remained clean for over five years, but without a car, it was harder for Tyson to seek help.

11:42 Tyson Timbs: If it was just about my Land Rover, I would have stopped. I gave that up a long time ago, I didn’t figure I’d ever get it back so yeah, I need a vehicle. It would be great to get it back, and I hope that I do but while I was going through all of this, the court stuff I started doing a lot of research and reading stories about other people like me and people that weren’t even arrested for anything, people didn’t even do anything wrong just had their stuff taken. That’s what it’s been about for me, for a long time now. It’s just wrong. That’s just one part of the criminal justice system that I think needs fixed. It’s not fair, and I’ve been lucky, not all of us have been as lucky as I have with the help that I’ve gotten from people and it’s an unnecessary stressor for people that already have problems. I understand it, just because we have issues doesn’t mean we should be babied but we’re still people. I’ve had to walk to counseling and therapy appointments, and I’ve had to get rides to meetings.

13:00 Tyson Timbs: That’s fine, I’ve done those things, but I’ve also not went because I didn’t have a ride. It’s just an unnecessary stressor that we don’t need. It’s not fair. I’ve already been punished once. I did my house arrest and I’m serving my probation, I’ve helped the community in different ways, I’ve been on the [13:21] ____ county drug task force, which by the way, the same officers that arrested me served on too. So that’s pretty cool that if we can all work together, maybe something can be helped. But yeah, I’m paying my price and I’m doing what they ask me to do so this really didn’t make any sense to me at all why they fought this so hard. It’s my truck, so I get why I’ve done it. But why are they fighting so hard?

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14:09 Theshia Naidoo: The federal government essentially wanted to encourage drug enforcement and the way they framed it at the time was taking the profits out of drug crimes and in trying to target what they thought was like major traffickers and drug kingpins, let’s remove the profit out of those crimes.

14:29 Tess Terrible: This is Theshia Naidoo of the Drug Policy Alliance. The Drug Policy Alliance submitted an amicus brief in favor of Tyson. Their brief was one of 18 in support of Tyson.

14:40 Theshia Naidoo: In 1984, Congress passed some legislation that allowed law enforcement agencies to retain the property that was seized as part of these investigations, and that was a huge turning point. The minute agency’s got to retain the property that they seize, you see a huge, huge increase in drug-related forfeitures. So initially, when Congress implemented forfeiture legislation, the fund that received forfeiture dollars back in 1986 was around $93 million as of 2017 that fund toppled $8 billion. That just shows how the huge explosive reach of forfeiture despite the billions of dollars that are invested in fighting this war on drugs, we still see that availability of drugs has not changed. And if the goal of asset forfeiture was to encourage law enforcement activity, when it comes to drug-related crimes, we have seen the increase in activity, we just haven’t seen a decrease in the supply.

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16:00 Tess Terrible: And although this case wouldn’t abolish civil forfeiture, you said it would have pretty major implications for civil forfeiture in the future.

16:08 Sam Gedge: That’s right, it will ensure that the Excessive Fines Clause is a backstop against the most excessive forfeitures and fines for that matter, that might be leveled whether it’s at the federal level, or the state level, or the local level. It’s also an important case because it really introduces the Supreme Court to some of the worst abuses of civil forfeiture.

16:27 Tyson Timbs: Way too many people out there that have gone through what I have and people that have gone through this that didn’t even do anything wrong. And in my opinion, this case has never been about the law, it’s about what’s right and what’s wrong. Obviously, the law says you can go either way because it’s happened. In my case, I’ve won and I’ve lost. So to me, this is about what’s right and I feel like we’re right, so I feel good about whatever happens. I joked when this first started. “Hey, maybe this can go all the way to the Supreme Court.” And it actually happened and I thought that was just crazy when I first said that, it was a joke. And so, this is way more than I ever expected so I’m thrilled that it’s made it this far and we’re here.

17:25 Tess Terrible: I attended the Supreme Court argument on November 28, 2018. I got to the court at 6:00 AM for the 10:00 AM argument. There were already people lining up outside the court waiting to get in to hear the oral arguments. It was 34 degrees and windy. I met about 20 students from the Jewish day school here in Washington DC. They had studied the case extensively and really wanted to see the argument. I walked into the court at 9:45 with a group of 12-year-olds behind me, and the argument started right at 10.

18:02 Supreme Court Oral Argument: The Honorable, the Chief Justice, and the Associate Justices of the Supreme Court of the United States. Oyez, oyez, oyez. All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.

18:28 Supreme Court Oral Argument: We’ll hear argument this morning in Case 171091 Timbs versus Indiana.

18:33 Tess Terrible: Wesley Hottot is representing Tyson Timbs.

18:36 Wesley Hottot: The freedom from excessive fines applies to the states because it is deeply rooted in our nation’s history and traditions and fundamental to our schema of ordered liberty. The State of Indiana appears not to dispute that straightforward answer to the actual question presented, and for good reason. The freedom from excessive fines easily warrants incorporation alongside the Eight Amendment’s other protections. This court has said just that five times over the last 30 years, without addressing the incorporation question directly, the state asked whether the clause applies to the states, the same way that it applies to the federal government. But 50 years of incorporation precedent holds that incorporated Bill of Rights protections apply to the states the exact same way that they apply to the federal government. All we’re saying is that you have an excessive fines defense that you may raise.

19:31 Tess Terrible: Again, this is a case about incorporation. Does the Excessive Fines Clause apply to the states? It’s not about what makes a fine excessive. This is Solicitor General Thomas M. Fisher of the State of Indiana.

19:46 Solicitor General Fisher: Mr. Chief Justice, and may it please the court, in rem forfeitures have been a feature of the Anglo-American judicial system for hundreds of years, but until about 25 years ago, no court had held that they were subject to a proportionality limitation. While other constitutional doctrines made…

20:02 Justice Gorsuch: General, before we get to the in rem argument and its application to this case, can we just get one thing off the table? We all agree that the Excessive Fines Clause is incorporated against the states, whether this particular fine qualifies because it’s an in rem forfeiture. Another question, can we at least agree on that?

20:23 Solicitor General Fisher: I have two responses to that. First…

20:25 Justice Gorsuch: I think a Yes or a No would probably be a good start, I guess.

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20:29 Sam Gedge: I think Justice Gorsuch’s first question out of the gate for the state was not surprising, but it was gratifying because it really I think struck to the heart of the case where he basically said, “Come on, let’s be serious.” Virtually, every other one of the Bill of Rights has long applied to the states. Are you really standing up here and trying to tell us that this one clause is different? And it was great to hear the point that we’ve been trying to make from day one in this case, get distilled really succinctly and be directed at the state so early on in the argument.

20:57 Supreme Court Oral Argument: Most of these incorporation cases took place in the 1940s, and here we are in 2018, still litigating incorporation of the Bill of Rights. Really? Come on, General.

21:09 Solicitor General Fisher: Well, I think what you have to take into account though is the history and you have to take into account all the history, not just the in personam history, the in rem history.

21:18 Tess Terrible: According to the Department of Justice, in cases of civil forfeiture, assets are seized by the police based on a suspicion of wrongdoing without having to charge anyone. The case is considered to be between the police and the thing itself. Sometimes referred to by the Latin term “in rem” meaning against the property, and property doesn’t have rights. We spoke with Solicitor General Thomas Fisher after oral arguments.

21:52 Solicitor General Fisher: I guess, first of all, historically the innocence of the owner hasn’t mattered and the tradition of the in rem forfeitures has been even where the owner didn’t know of the misuse and couldn’t have known, couldn’t have done anything about it, the forfeiture was still able to go forward. And the same is still true in terms of the ability of states to use in rem forfeiture. Some states such as Indiana have built in some innocent owner exceptions, but the identity of the owner and the innocence or the guilt of the owner has not been terribly relevant.

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22:31 Tyson Timbs: I didn’t even realize I was there until there was only like 10 minutes left in arguments and all of a sudden, it hit me. I don’t know if I was in some kind of daze or what, but all of a sudden, about 10 to 11, I looked at the clock and then I looked around like, “Oh, my gosh, I’m in the Supreme Court. This is happening right now.” I don’t think it’s even really set in yet. It’s still unreal to me that it even happened. But it was… I can’t explain the feeling when I was sitting in there and looking around and the Supreme Court Justices were feet away from me, talking about a case that I’m involved in. That was indescribable.

23:28 Tess Terrible: After arguments, we prepared for a long wait. We expected a decision possibly by April, or May, or June of 2019. Then something surprising happened. This is me speaking with Natalie Dowzicky. She is the Project Manager of libertarianism.org and occasionally acts as my Assistant Producer.

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23:51 Tess Terrible: So we’re recording this on February 21st, and yesterday… What happened yesterday, Natalie?

24:02 Natalie Dowzicky: Unexpectedly, I was scrolling through one of my news feeds and came across probably around 10:45 in the morning, came across the Timbs’ decision which was that much more interesting since the federal government was shut down due to snow.

24:18 Tess Terrible: Yeah, we had snow day yesterday.

24:21 Natalie Dowzicky: So we were not expecting the court decision and the opinion to be released on February 20th, and then I actually stumbled across it, which I think was the reaction to quite a few organizations. And Ruth Bader Ginsburg actually wrote the majority opinion, and she announced the decision yesterday at court.

24:40 Tess Terrible: The court ruled in Tyson’s favor, that the Excessive Fines Clause does apply to the states. It was a unanimous ruling. This is Sam Gedge again. We caught up a couple of days after the ruling was released.

24:54 Sam Gedge: So we’re thrilled that the US Supreme Court ruled in Tyson’s favor on this really important question of constitutional law. I don’t think it’s a surprising outcome. I think it was surprising mainly that this issue hadn’t been resolved previously, but it’s an important part of what we’ve described as constitutional housekeeping and we’re looking forward to the next steps in the case.

25:14 Tess Terrible: So how do you think this will impact policing for profit?

25:18 Sam Gedge: I don’t think it will put a stop to policing for profit. And the reason for that is that even though we now know that the Excessive Fines Clause applies to states and localities, it’s still a comparatively high bar. Most fines and forfeitures, almost by definition, aren’t going to be in the excessive category. So I don’t think we’ve seen the end of abuses when it comes to civil forfeiture but this is an important first step, and it’s important that the court recognized that there are these dangerous incentives out there. Hopefully, this is gonna be the first of a number of cases that the US Supreme Court will take in the coming years to address some the most dangerous aspect of civil forfeiture, whether it’s the lopsided burden of proof, whether it’s the fact that in many states property owner sometimes have to prove their own innocence to get their property back, whether it’s the fact that police and prosecutors often go on record publicly saying that budgetary considerations influence their decisions of whether and when to bring this really terrifying power to bear on people.

26:16 Sam Gedge: There are a lot of problems and they’re problems that the court need to address. Civil forfeiture is and for many years has been one of the greatest threats to property rights that we’ve seen in the nation today, and it’s really exciting and gratifying that Tyson’s experience brought this onto the national stage. Tyson did a fantastic job as a spokesperson who is not a professionally trained spokesperson when it comes to criminal justice issues, but he really took I think one of the most challenging parts of his life and brought it to the national stage, and I think he’s helped us all take a really major step forward when it comes to appreciating the dangers that come from civil forfeiture.

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26:55 Tess Terrible: Behind this case was just a man hoping to make a better life for himself and ultimately be a better person. Little heads up before we play this clip. Tyson and I are about to talk about his semicolon tattoo. If you’re not already aware, the semicolon tattoo is a message of affirmation and solidarity against suicide, depression, addiction and other mental health issues.

27:24 Tess Terrible: Are you in recovery today?

27:25 Tyson Timbs: Yes. I’ve been in recovery… Well, since January of 2015, so coming up on four years I’ve been in recovery.

27:37 Tess Terrible: That’s a huge accomplishment.

27:41 Tyson Timbs: It’s been tough sometimes. Yeah.

27:47 Tess Terrible: I don’t have this in my notes, but I’m noticing a tattoo that you have on your knuckle.

27:53 Tyson Timbs: My semicolon?

27:55 Tess Terrible: Yeah. Yeah, I know what that is. I have a brother that died.

28:03 Tyson Timbs: Well, you know, I suffer from anxiety and depression too so… You just made me cry by saying that. I’ve known too many people. But yeah, mental health is something people don’t take serious and we should, because to me it’s just as important as our physical health. When you feel sick, you go to the doctor, and you don’t think twice about it, but when somebody feels like they don’t belong, they don’t ask for help ‘cause they’re afraid. They don’t wanna be judged and it shouldn’t be like that.

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29:04 Tess Terrible: We’ve talked about your past, what’s happening today, your recovery, and I think the last question I have for you is, what do you hope for the future? What do you hope your life looks like in the future?

29:20 Tyson Timbs: I just wanna be happy. I’ve tried to plan my life and I’ve had ideas of what it should be and what I wanted it to be, and it’s definitely not been this, but this is the life I was supposed to live and I’m happy about it. I wouldn’t have it any other way if I had to do everything all over again. I would, I’d grin my teeth and I’ll do it all over again because I like my life today. And whatever happens, as long as I’m happy… I’ve got everything that I’ve really ever wanted. I don’t need a lot but I have a good family that loves me, I’ve met the love of my life in the last year, just everything seems to be working out for me, so I just wanna be happy and whatever happens in the future, it’ll happen.

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30:44 Tess Terrible: Thanks for listening to The Pursuit. If you like The Pursuit, please rate and subscribe to us on Apple Podcast, Spotify, or wherever you get your podcast. I want to announce that we’re doing things a little bit different this season. We will bring you a new episode and a new story every two weeks. We’re welcoming two new hosts, Landry Ayres and Natalie Dowzicky. The Pursuit is a project of libertarianism.org and the Cato Institute. If you’d like to learn more about libertarianism, visit us on the web at libertarianism.org. As always, this is The Pursuit. I’m Tess Terrible. We’re glad to be back.

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31:29 Tess Terrible: We’re recording this podcast in October 2019, and as of this time, Tyson still hasn’t received his car back.