Legal Case Summary

We'll hear an argument this morning in case 17 1091, Tim's versus Indiana. Mr. Hodget? Mr. Chief Justice, and may it please the Court, 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 scheme 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 Eighth 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 asks 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 Protection's apply to the states the exact same way that they apply to the federal government. There's no reason to adopt the so-called two-track approach at this late stage of the incorporation doctrine, especially- That's so of all incorporations. What about the non-unanimous jury in criminal cases? Justice Ginsburg, as the Court recognized in McDonald, the non-unanimous jury in criminal cases is an anomalous decision that results from a one-justice concurrence in the AAPIDACA case. And there's no reason as the Court recognized in McDonald for that to control when there's over 50 years of precedent beginning in Moloi versus Hogan, MAP, Aguilar, again in McDonald, rejecting that two-track approach. Adopting the two-track approach at this late stage would only invite further litigation about rights that are already incorporated. When this Court interpreted the Fourth Amendment right to be free from having your cell phone tracked in the Carpenter case, if my friends argument were correct, we would have to relitigate whether that right applies to the states. Virtually all of the Bill of Rights, with the one exception noted by Justice Ginsburg, has been incorporated on the right-by-right approach used in McDonald, not on the application by application approach proposed. There are a few others that have not been incorporated. Isn't that right? Oh, that's true. Absolutely. But that's either because they haven't been addressed by this Court, like in the case of the Third Amendment right against court-earning soldiers, or because as the Court recognized in McDonald, they long predate the era of selective incorporation. So I think it's possible that if the rights that issue in Bombayless and Hurtado were to come before this Court today, the results might be different

. But we don't have to get into that history here because the history on the question presented of whether the excessive fines clause applies to the states is clear. What is the provision and the constitution that you rely on? The Section 1 of the 14th Amendment, Your Honor. It's the component of the liberty that is substancefully, substantively protected by the Fourth Amendment's Duke process clause. Yes, Your Honor. We also have an alternative argument under Section 1's privileges or immunity's clause. That would be about non-citizens. Yes, textually, Justice Ginsburg, that would lead out non-citizens. But of course, petitioner is a citizen, and that could be a decision for another day. It's also true that the fundamental and deeply rooted rights that are currently incorporated under the Duke process clause apply to non-citizens, and they would continue to do so regardless of the Court's reasoning in this case. Well, you can see there's different arguments about whether and this like gathers the state's primary submission, whether excessive fines are prohibited and whether civil in-rem forfeitures are. And I certainly understand the argument that the disproportion and excessiveness arguments would be quite different with respect to forfeiting the instrumentalities of the crime. I mean, argument could be made well, that's always proportionate since it's the way the crime is accomplished. I don't agree, Your Honor, because whatever might be said of historic in-rem forfeiture practices, forfeatures today, like this one, are fines within the meaning of the clause. The Court was unanimous on that point in Austin, and since then it has reaffirmed that point in the Bajikagean case, in the Hudson case, and most recently in Kokesh, all of which rely on Austin. As a result, state and federal courts today are... Of course, the argument there was not for the purposes we're talking about today in terms of incorporation

. And if the test is, as it has been, you know, whether it's a essential fundamental and all that, you can see a distinction between saying, okay, you're going to be fined $500,000 and saying, yeah, you're going to... I mean, the action is not against the individual, it's against the asset, and you will lose assets that you use in crime. The first one sounds, yeah, that's pretty excessive. The second one, you can certainly argue, well, that makes a lot of sense. Doubtless, Your Honor, but these questions go to the excessiveness analysis, not to the incorporation analysis that is currently before the court. When the court incorporated the Second Amendment right to keep in bear arms in the McDonald's case, it had rejected that right for 140 years until the Heller decision, and then just two years later, incorporated it against the states. So there's no reason to require, as my friend suggests, should be required, that litigants show a historic pattern of the right being enforced, and in any event, as the court recognized in Austin, in Bajikajian, and most recently in Cokesh, we're dealing with a different animal. It uses the same name, civil in-rim forfeiture, but it's a different animal in that it's not just about personal jurisdiction and pirate ships anymore, it's about every person's property, and every officer on the street now has the power to strip people of their property. Well, your client was convicted of an offense that was punishable by a maximum of 10 years imprisonment, am I correct? 20 years imprisonment. 20 years imprisonment, and he was sentenced to six, but it was suspended, right? That's correct, Your Honor, he was sentenced to home detention for one year, and then five years of probation, the minimum on that scale. So if he had been sentenced to six years of actual imprisonment, would that have been a violation of the Aval Amendment? Possibly, Your Honor, we would have to look at the proportionality to the gravity of the offense, and for what it's worth, Judge Todd in rural Grant County, Indiana, looked at this offense and the impact on the community, and determined that it would be grossly disproportionate to strip petition or his property, or even to send him to prison. And I think that's significant, especially given that the Indiana Court of Appeals affirmed that decision, and the Indiana Supreme Court didn't even address it because it didn't have an opportunity to reach the excessiveness question. What have we said about application of the grossly disproportionate standard? Well, Your Honor, as you know, the Court in Bogycagian articulated that standard for the first time, and it hasn't had an opportunity to address it again. Well, I mean in the context of imprisonment, not fines. Oh, absolutely, Your Honor, under the cruel and unusual punishment clause, the Court has articulated a very similar standard, is the punishment grossly disproportionate to the gravity of the offense. And there's nothing radical about allowing trial judges at the end of a proceeding to assess under all of the circumstances, as the Court emphasized in Bogycagian they should, even with respect to end-room forfeatures

. That's something that trial judges do every day. But your assumption is that you assess the particular circumstances of the case. I mean, I suppose if you ask people, do you think six months is an excessive sentence for whatever it was, three counts of dealing in hazardous illegal drugs, many people might say no. It's only when you say, well, the six months too much for that, whatever the circumstances were here, the much, I don't want to say insignificant, but lighter quantities involved. What do you look at, the particular circumstances, or what the crime is. The crime is not dealing with tiny amounts of drugs, the crime that he's convicted for is much broader than that. Your Honor, excessiveness is, quote, necessarily fact-intensive. That's from the Bogycagian case. Excuse me, Your Honor, that's actually from the Second Circuit's Fawn Hoth case, which attempts to apply Bogycagian to the real-world circumstances of an in-room forfeature. But Black Stone recognized that as well. There's no way to assess the disproportionality to the gravity of the offense and the abstract. By contrast, the incorporation question that's before the Court today is easy to assess in the abstract. We ask ourselves not whether civil in-room forfeatures, right against excessive in-room forfeatures is somehow deeply rooted and hence can be incorporated. We ask whether the freedom from excessive fines, which has been recognized since the 13th century, is incorporated. And it's important to recognize that the Indiana Supreme Court's decision in this case did not adopt my friend's suggestion of simply saying that it doesn't apply to in-room forfeatures. The citizens of Indiana today don't enjoy protection from excessive fines of any kind. And that's true of the citizens of three other jurisdictions as we pointed out in our petition for social rights. If we were to assume for the sake of argument that imprisonment for six years would not be an eighth amendment violation for this offense, what would that say about a fine of $42,000? Is it possible that six years imprisonment is not an eighth amendment violation, but a fine of $42,000? Is an eighth amendment violation? Well, Your Honor, we'd have to know all of the circumstances of the case

. And if we're talking about this particular case, I think it's clear that the judge on the ground that was closest to this crime felt that it was grossly disproportionate to the gravity. This is a first-time offender who was caught dealing a small amount of drugs. And the vehicle here was not interesting. But we're talking about a federal constitutional standard, not whatever sentencing philosophy, any one of the thousands of judges in the United States who imposed sentences might think is the right sentence for a particular crime and a particular offender. Absolutely, Your Honor. But the question presented here is merely whether a defendant in any case has the right to interpose a defense under the excessive fines clause, we're not asking the court to articulate a new standard of excessiveness. We're not asking the court to determine that this forfeiture was or was not excessive. We're merely emphasizing that part of the purpose of the 14th amendment was to guarantee to all 330 million Americans a right to a defense under the excessive fines clause. Indiana denied petitioner that defense and the court should reverse and remain. Two state courts here struck down this forfeiture held that it was punitive under Austin believing that the clause already applies to the states and believing that this forfeiture would be excessive. The Indiana Supreme Court did not address the excessiveness question. It quote, declined to find or assume incorporation until this court quote, affordatively holds that the clause applies. Is there any in-rem forfeiture? Not this one, which relied on the criminal activity of this defendant. But let's say that Austin, the state did away with innocent owner defense. So that the forfeiture was against the innocent owner. Would that be punishment? I think under my reading of Austin, it was that only those forfeatures that are punitive count under the clause. So what can a state do to take it out of its punitive nature? Well, it's important to recognize that Austin says that if the forfeiture is at least partly punitive, it comes within the confines of the clause. So, of course, if they do away with the innocent owner defense and the innocent owner comes in and says, this is my property, I didn't commit a crime

. They say it's too bad. Well, the property did. I think your honor, it's safe to say that that could be deemed excessive if we look at the binis case. That case is about a co-owner who didn't commit the crime. And the court held that as a matter of federal substantive due process, that co-owner did not have an innocent owner defense. But that does not dictate that the that co-owner couldn't articulate an excessive fines defense into the three. Why? It's not punitive against him. It's the property that is being charged with having been involved in a crime. I see your question, Your Honor. I think that if someone had done nothing wrong, let us say that someone steals my car as I'm walking into a target, commits a bank robbery, and the police sees that vehicle quite righteously. I mean, as a practical matter, of course, the police are going to return the vehicle to me. But if the state were to go so far as to institute forfeiture proceedings against that person, as Justice Kennedy recognized in his Austin concurrence, there would be several serious constitutional problems with that. And it may be that in those circumstances, where I'm entirely blameless, that the court would hold that there is a substantive due process right to reject that forfeiture. Or the court would find it to be grossly disproportionate to the gravity of the non-existent defense. So I think binis can be easily reconciled with this case, particularly when the court looks at Justice Stevens' descent in binis, which with two other justices points out that Mrs. Binis didn't bring in excessive fines defense, had she done so, at least those three justices would have been inclined to rule in her favor. So you're saying even if it's a classic in-rim forfeiture of a crime that's been known for centuries, that would potentially violate the excessive fines clause. Yes, Your Honor, this court has rejected the idea that states can work their way around the excessive fines clause based on nothing more than a label

. This is not a labeling game. The court looks to the substance of what's happening. It emphasized that most recently, in the co-cash decision, that fines, penalties, they sometimes serve several purposes. But with respect to civil in-rim forfeatures, if any of those purposes are punitive in nature, then the defense can be raised. And that makes sense. The situation with jail prison. I have a vague recollection, often such recollections are incorrect, but I have a vague recollection that there was a case in which California's three strike law was applied to sentence to life a person whose final offense was stealing an $80 golf club. And I think the majority said, no, we're not going to look at that because it's too complicated. Am I right? Does that ring a bell? Because if that still is the law, if I think it is, it's something anomalous about saying, by the way, if you took his Mercedes, we will look to see whether that's disproportionate to taking a golf club. But if you send him to jail for life, we won't. Now, have I stated this correctly? And if so, how do we deal with it? Well, you're on our, I think the most relevant authority here is the Harmalin decision, in which this court, similar to the situation you're describing, allowed a person to be sentenced, from a person from Michigan, to be sentenced to life without the possibility of parole, for having 650 grams of, I believe it was cocaine. And the court reason that looked, that amount of cocaine could be broken up and easily used for distribution. So it's appropriate in these circumstances to punish that harshly. Here, we're dealing with two grams. By question, really, is are there cases where we have said that the punishment is disproportionate, where it's simply a question of the degree of punishment, i.e. life imprisonment, and the nature of the offense, e.g

. stealing a golf club. There are. And if there are not, it seems odd, and I think I'd have to think about it, or maybe we should address in some way or argument, as to why there is that difference. Your Honor, I think if we posit that difference, yes, it's, it's, it's like saying there is a difference. But between sentencing a person for stealing a golf club, yeah, life sentence, I think that no, there is no difference, and that if there is that tension between the excessifying's clause and the cruel and unusual punishment clause, that in an appropriate case, this court should resolve it. I don't think it's, it's, it's, it wasn't simply stealing a golf club, it was a, the third offense, so it was, it was a punishment for recidivists. Absolutely, you're right. And thank you. Yeah, but I also robbed the chicken coop. It gets me back to the question I was asking before. If six years imprisonment is not a violation of the Eighth Amendment, and you know, you said it might be, I think you might have a, something of an uphill fight to prove that, but three years, two years, how, how low would the ceiling of permissible term of imprisonment have to go in order to justify a holding that affine of $42,000 is a violation of the Eighth Amendment. What is the equation between the, the monetary, between dollars in, in a fine and time imprisonment? You're on our, although it might be unsatisfying, the court has said repeatedly that there is no equation and that there can be no equation because these situations are inherently real world in nature and that courts have been directed specifically with respect to N. Rimm Forfeiture's and the Bajikage in case to assess all of the circumstances. And as Justice Ginsburg was assisting me, it's absolutely the case that the court has to look at not just the value of the property, not just the gravity of the offense, but also the offender himself and his effect potentially on the community, if he remains at large. There's nothing new about that. Trial judges, everyday assess in all of the circumstances, what is an appropriate punishment. And all we're saying in this case, we're several steps removed from the question presented right now. All we're saying is that you have an excessive fines defense that you may raise

. So we are several steps removed, but I think that the import of some of these questions is, look, we've made it awfully, awfully hard to assert a disproportionality claim with respect even to imprisonment. And if it's at least equally hard to assert a disproportionality claim with respect to fines, we could incorporate this tomorrow and it would have no effect on anybody. That's potentially true, Your Honor, but the standard of assessing this type of economic sanction, it's important to recognize as being developed as we speak in the lower courts. This court's decision in Bajikage has prompted the lower courts to try to articulate factors and some courts use some factors, other courts use others, and an appropriate case with full briefing and a comment from Amiki, this court can and should decide that important question. But this case merely insists that petitioner like every other American has the right to raise the excessifying's defense and that the Indiana courts can then assess the situation. Well, but you're asking us to, you know, buy a pig in a poke, in other words, you're saying incorporate this, but, you know, we don't even know whether it means we're going to decide whether it's $10,000 is enough for $20,000, or if we're simply going to say something along the lines of harmingland, which it's not just that it's whatever so many grams, it's that it's the third offense, and so that's what's the protection against that is fundamental to a civilized society or whatever the standard is that we've been applying. You say don't worry about what it means, just incorporate it and then figure it out later on. Your Honor, I'm not saying don't worry about it, I think that this is a pressing question and in an appropriate case, I think that the court does need to take it up. But if we look to the harmingland decision, Justice Scalia's opinion in that case points out that there's special reason to be concerned when the government uses economic sanctions to punish a person because unlike all other forms of punishment, whether it be life imprisonment, Justice of Forfeiture is in fines, raise revenue, and there's good reason, there's good history for being concerned about the sovereign power to raise revenue using punishment. Well, let me give you two examples. Suppose your client instead of using a land Rover, was it? Yes, a land Rover had been using a 15 year old Kia or at the other extreme, suppose he used a Bugatti which costs like a quarter of a million dollars. Would the excessifying clause apply differently in those three cases? No, Your Honor. It applies the same. The same with the result? Be different. If he had been driving a car with a book value of $1,500, would the result be different? Well, Your Honor, we would have to know more. We would have to know what the gravity of the offense was. We know. It's the offense we have here

. We know what the offense is. I think in this instance, any forfeiture of the vehicle would be excessive because this vehicle was not instrumental to the crime. It was incidental. It's no surprise that in rural Indiana, a person might drive somewhere to meet with someone and that doesn't make this vehicle somehow like a pirate ship that had been sailing the high seas. Well, that's contrary to a lot of civil forfeiture law. I mean, this was an instrumentality of the crime. This is how we got to the deal place and how we carried the drugs. Normally, you're carrying the drugs in your car. It's pretty well established. Your car can be forfeited. Potentially, Your Honor. It's well established that the car is subject to forfeiture. It is not, however, well established that that would necessarily not be excessive. What does it make a difference? We've been talking about the value of the item. What if the person doing this was multi-millionaire? $42,000 doesn't seem excessive to him. And yet, if someone is impoverished, does that matter? Well, Your Honor, if the court looks to the brief of the Eighth Amendment scholars filed in support of neither party, they discuss this. Magnacarda had the principle of Salo Contentamento, the idea that you can't take from a man so much that he would be destitute. And the court has suggested that in the Bajicagian case that that might be a factor, but it specifically declined in Bajicagian to articulate factors, recognizing that this is highly contextual, highly fact intensive, and something that ought to be developed in the lower courts before this court pronounces any particular test

. On the federal side, how does this work? What kind of forfeatures have been held unconstitutional? Have any? Yes, Your Honor. The second circuit's bond-hoff decision is helpful. That case dealt with a wife who is unaware that her husband was cultivating marijuana in the family home. And the second circuit wrestled with that case, articulated factors for assessing excessiveness, and determined that that wife was entitled to return of a portion of the property. And that's important to recognize, too. This isn't an all-or-nothing thing. It may be that the Bugatti that Justice Alito was talking about would be forfeited in part and not in full, or that a person who was particularly dependent on their vehicle say they're a mother, and it's the minivan that they used to get their children to school that a trial judge might determine that that is constitutionally excessive. Your honours, if they're on her further questions, I'd like to reserve the balance of my time. Thank you, Council. General Fisher? Mr. Chief Justice, and may it please the court, In-Rem four features 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 may be in the Senate. 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 excess of fines clause is incorporated against the states, whether this particular fine qualifies because it's an In-Rem four feature, another question. But can we at least get the theoretical question off the table whether you want to do it through the due process clause and look at history and tradition? No, gosh, excessive fines, guarantees against them, go back to Magna Carta in 1225, the English Bill of Rights, the Virginia Declaration of Rights, pretty deep history. Well, whether one wants to look at privileges and immunities, you might come to the same conclusion. Can we at least agree on that? I have two responses to that. First, well, I think a yes or a no would probably be a good starting question. Well, I think with the respect to in person and the answers yes, but you have to take into account, and this is the methodology of McDonald. You have to take into account the history and traditions of the right being claimed. Now, the right being claimed here is a right of proportionality is to In-Rem four features. The court has to grapple with that history, which is really not seriously contested that that was never subject to purpose. But whatever the excessifying clause guarantees, we can argue again about its scope and in RAM and in Persona, but whatever it in fact is, it applies against the states, right? Well, again, that depends. Most these incorporation cases took place in the 1940s. And here we are in 2018 still litigating incorporation of bill of rights. Really? Come on, General. 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 person in history, the in RAM history. For the clause, why do you have to take into account all the history to pick up on Justice Gorsuch's question? Is it just too late in the day to argue that any of the bill of rights is not incorporated? The court has never incorporated right against the states where it could not conclude that there was a relationship that was fundamental and deeply rooted in our history. But aren't all the bill rights at this point and our conception of what they stand for, the history of each of them incorporated? Well, with fairness, not with your respect to your concession, conception on excessive fines, and Austin's what stands in the way of that. Austin has been undermined by subsequent cases, including Urcery, including Baja Khazin, which by the way was it? I was not inside of it in a footnote with seeming approval. Well, that's one thing that's interesting about that footnote is that it's a, as we can endorsement, as I think we can imagine. It said that Austin was justified by a reference to some difference between common law forfeatures and so-called modern forfeatures. Well, Austin didn't depend on that distinction and that distinction does not exist. The so-called modern day forfeatures are materially the same with respect to the conceptual nature of them, that they are against the property and not the person with respect to the procedural nature, which is civil and not criminal. If I understood your response to Justice Gorsuch, it was essentially that we can't answer the question wholesale, that we have to look at the particular right being invoked. So, I guess the question is, do you have a theory about how we go about dividing up rights? How do we decide that we're looking at a particular right against in-room forfeatures as opposed to a general right against excessive fines? Well, I think McDonald gives us some instruction on that

. Well, I think with the respect to in person and the answers yes, but you have to take into account, and this is the methodology of McDonald. You have to take into account the history and traditions of the right being claimed. Now, the right being claimed here is a right of proportionality is to In-Rem four features. The court has to grapple with that history, which is really not seriously contested that that was never subject to purpose. But whatever the excessifying clause guarantees, we can argue again about its scope and in RAM and in Persona, but whatever it in fact is, it applies against the states, right? Well, again, that depends. Most these incorporation cases took place in the 1940s. And here we are in 2018 still litigating incorporation of bill of rights. Really? Come on, General. 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 person in history, the in RAM history. For the clause, why do you have to take into account all the history to pick up on Justice Gorsuch's question? Is it just too late in the day to argue that any of the bill of rights is not incorporated? The court has never incorporated right against the states where it could not conclude that there was a relationship that was fundamental and deeply rooted in our history. But aren't all the bill rights at this point and our conception of what they stand for, the history of each of them incorporated? Well, with fairness, not with your respect to your concession, conception on excessive fines, and Austin's what stands in the way of that. Austin has been undermined by subsequent cases, including Urcery, including Baja Khazin, which by the way was it? I was not inside of it in a footnote with seeming approval. Well, that's one thing that's interesting about that footnote is that it's a, as we can endorsement, as I think we can imagine. It said that Austin was justified by a reference to some difference between common law forfeatures and so-called modern forfeatures. Well, Austin didn't depend on that distinction and that distinction does not exist. The so-called modern day forfeatures are materially the same with respect to the conceptual nature of them, that they are against the property and not the person with respect to the procedural nature, which is civil and not criminal. If I understood your response to Justice Gorsuch, it was essentially that we can't answer the question wholesale, that we have to look at the particular right being invoked. So, I guess the question is, do you have a theory about how we go about dividing up rights? How do we decide that we're looking at a particular right against in-room forfeatures as opposed to a general right against excessive fines? Well, I think McDonald gives us some instruction on that. McDonald talked about not simply the Second Amendment, but about the right to self-defense in the home. Other cases of incorporation this Court has decided have approached, for example, reasonableness under the Fourth Amendment as distinguished from the exclusionary rule. There are precedents that do that, but there is no precedent where the Court has incorporated a right that was not deeply rooted or fundamental. I mean, that seems to make the incorporation question sort of indistinguishable from the substantive question. I think you have to come to grips with the history, whether you just, whether you call it incorporation or you call it the substantive merits question. We've given you three different ways to do this. The most historically sound way is to overrule Austin. You don't want to do that. Well, you have counsel, you know, if just to pause on that for a second, you know, the Indian Supreme Court didn't address the merits questions. Didn't address any of this forefature in Ramm-Mimprasund. Just said that the excessive fines clauses not incorporated period. Why isn't that just wrong? And then you can go make these arguments about why it doesn't apply to this case on remand. Do you really want us to answer the merits questions, too? Well, the problem with relying on lower court percolation on the merits question, in terms of whether Austin is correct, is that Austin binds the lower courts. They don't have an opportunity to revisit that. This Court does. The matter has been, it's been, okay, let's say this Court's not inclined to revisit Austin. You're going to lose not just the incorporation question, but the merits question, too. Good news work

. McDonald talked about not simply the Second Amendment, but about the right to self-defense in the home. Other cases of incorporation this Court has decided have approached, for example, reasonableness under the Fourth Amendment as distinguished from the exclusionary rule. There are precedents that do that, but there is no precedent where the Court has incorporated a right that was not deeply rooted or fundamental. I mean, that seems to make the incorporation question sort of indistinguishable from the substantive question. I think you have to come to grips with the history, whether you just, whether you call it incorporation or you call it the substantive merits question. We've given you three different ways to do this. The most historically sound way is to overrule Austin. You don't want to do that. Well, you have counsel, you know, if just to pause on that for a second, you know, the Indian Supreme Court didn't address the merits questions. Didn't address any of this forefature in Ramm-Mimprasund. Just said that the excessive fines clauses not incorporated period. Why isn't that just wrong? And then you can go make these arguments about why it doesn't apply to this case on remand. Do you really want us to answer the merits questions, too? Well, the problem with relying on lower court percolation on the merits question, in terms of whether Austin is correct, is that Austin binds the lower courts. They don't have an opportunity to revisit that. This Court does. The matter has been, it's been, okay, let's say this Court's not inclined to revisit Austin. You're going to lose not just the incorporation question, but the merits question, too. Good news work. I'm not sure what you mean by the merits question in that regard. With respect to whether this forefature is excessive, certainly that discussion would, in that argument, would take place back in the Indiana Supreme Court. With respect to the meaning of Austin, whether Austin remains good, I think, you know, that's only something this Court can affect. And I think with respect to the broader question, even if the question Justice Kagan, is the excessive fines clause as a whole and not something where we're going to slice and dice the rights, we still have to take into account that history of in remfwarf feature. And we don't have any examples of incorporation where there is this substantial history that calls into question the fundamental or deeply rooted nature of a very large, you know, area where that right would be applied. But we do have a relatively recent history calling into question the division between in-rem and in-person. Certainly in the area of personal jurisdiction, it was once, Kagan, rem jurisdiction and personal jurisdiction. And yet in Schaffer against Heiten of the Court said, we're not going to do that anymore. Do process controls both. So whether you label it in-rem or in-person, let's remember that it's things don't have rights or obligations in and of themselves. It's people that have rights or obligations with respect to things. Well, with respect to Schaffer, I think what's critical there is the word quasi because of course it was not a straight-up in-rem proceeding. We're talking about the ability to seize assets for a case where there had been an in-person judgment. And that distinguishes that category of cases from the historical in-rem forfatures we're talking about. In-rem is still critical for jurisdictional reasons for it comes up in sovereign immunity. It binds the states there that we can't assert sovereign immunity the same way when we've got an in-rem proceeding. You've got other situations. Double jeopardy

. I'm not sure what you mean by the merits question in that regard. With respect to whether this forefature is excessive, certainly that discussion would, in that argument, would take place back in the Indiana Supreme Court. With respect to the meaning of Austin, whether Austin remains good, I think, you know, that's only something this Court can affect. And I think with respect to the broader question, even if the question Justice Kagan, is the excessive fines clause as a whole and not something where we're going to slice and dice the rights, we still have to take into account that history of in remfwarf feature. And we don't have any examples of incorporation where there is this substantial history that calls into question the fundamental or deeply rooted nature of a very large, you know, area where that right would be applied. But we do have a relatively recent history calling into question the division between in-rem and in-person. Certainly in the area of personal jurisdiction, it was once, Kagan, rem jurisdiction and personal jurisdiction. And yet in Schaffer against Heiten of the Court said, we're not going to do that anymore. Do process controls both. So whether you label it in-rem or in-person, let's remember that it's things don't have rights or obligations in and of themselves. It's people that have rights or obligations with respect to things. Well, with respect to Schaffer, I think what's critical there is the word quasi because of course it was not a straight-up in-rem proceeding. We're talking about the ability to seize assets for a case where there had been an in-person judgment. And that distinguishes that category of cases from the historical in-rem forfatures we're talking about. In-rem is still critical for jurisdictional reasons for it comes up in sovereign immunity. It binds the states there that we can't assert sovereign immunity the same way when we've got an in-rem proceeding. You've got other situations. Double jeopardy. We already have a distinction in the double jeopardy context where in-rem is critical. So I don't think we can just wave it away. What is the difference between the approach that you're advocating here and the way the court used to address the question whether rights protected by the Bill of Rights apply to the states before it began the process of incorporating provisions of the Bill of Rights one by one. And it said that what applied to the states were those rights that were implicit in the concept of order liberty. So there was a two-tiered system. And that seems to be what you're asking us to go back to with respect to the excessive fines clause. We don't have a difference. I don't. Could you explain what is the difference between those two approaches? Yes indeed. We're not suggesting some sort of systematic differential treatment. And Macdonald the court acknowledged that the differences that exist between the Bill of Rights rights that apply to the federal government in the states are a matter of solidarity. Now here what we're saying is if that if the in the analysis because of the lack of historical roots of the in-rem proportionality right there is a being a difference that has to be based on the stereotypes of Austin. If Austin remains good law only because of stereotypes that puts it in the same category as those other cases. It's not a systematic federalism discount if you will on. If Austin were overruled then the rule as applicable to the federal government would change as well. That's right. That's right. We would be on the same

. We already have a distinction in the double jeopardy context where in-rem is critical. So I don't think we can just wave it away. What is the difference between the approach that you're advocating here and the way the court used to address the question whether rights protected by the Bill of Rights apply to the states before it began the process of incorporating provisions of the Bill of Rights one by one. And it said that what applied to the states were those rights that were implicit in the concept of order liberty. So there was a two-tiered system. And that seems to be what you're asking us to go back to with respect to the excessive fines clause. We don't have a difference. I don't. Could you explain what is the difference between those two approaches? Yes indeed. We're not suggesting some sort of systematic differential treatment. And Macdonald the court acknowledged that the differences that exist between the Bill of Rights rights that apply to the federal government in the states are a matter of solidarity. Now here what we're saying is if that if the in the analysis because of the lack of historical roots of the in-rem proportionality right there is a being a difference that has to be based on the stereotypes of Austin. If Austin remains good law only because of stereotypes that puts it in the same category as those other cases. It's not a systematic federalism discount if you will on. If Austin were overruled then the rule as applicable to the federal government would change as well. That's right. That's right. We would be on the same. I'm still not seeing the difference between the two. Well the difference would be if you look at Austin if you were to look at Austin and say you know what Austin was dead right historically this is historically rooted and it is fundamental that I don't think there's any grounds for us to say that there should be the outcome should be any different between the states of the federal government. If you look at Austin you say you know what that's questionable but we don't want to overturn it because it's a stereo decisive principles counsel against that. That's a different analysis and that's more like Hurtada more like Bumble is. Well isn't that pretty much what the dissent in McDonald said? We don't like heller but at least let's just keep it applicable to the District of Columbia and the federal government and not apply it to the states. Well but I think that was a different for a different reason. In the plurality acknowledged the distinction with Bumble is in Hurtado being purely a matter of stereo decisive and that's the basic principle work we're calling on here which is if Austin remains good law only because of stereo decisive that doesn't make this a systematic sort of discounted right. That just means that you know you've got as a question of the court's history some other way you have to look at the situation but I think it's critical to understand also that the idea that somehow so-called modern in-run forfeiture are different from history because of the existence of innocent owner exceptions is also not correct. Innocent owner exceptions did exist within the last couple of hundred years. Indeed authorities contemporaneous with the ratification or roughly contemporaneous with the ratification of the 14th Amendment acknowledged that there there might be innocent owner defenses. The treatise by Bishop says if the law in its clemency permits an innocent owner to make a claim that does not convert into punishment that which was not already punishment it doesn't make any difference. So whether we no matter how we look at in-run forfeatures today and the features that they exhibit there are no different than the historical in-run forfeatures that this court has said in cases after Austin calling Austin into question that they were not punishment. In your view an in-rimm civil forfeiture is not an excessive fine is that right? Yes that is that is true. So what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti Mercedes or a special Ferrari or even Jolopy. There is no excessive fines issue there. What I will say in what I think is important to remember is that there is a constitutional limit which is the proof of instrumentality the need to prove nexus. That isn't a problem because it was the Bugatti in which he was speeding. There is all the nexus

. I'm still not seeing the difference between the two. Well the difference would be if you look at Austin if you were to look at Austin and say you know what Austin was dead right historically this is historically rooted and it is fundamental that I don't think there's any grounds for us to say that there should be the outcome should be any different between the states of the federal government. If you look at Austin you say you know what that's questionable but we don't want to overturn it because it's a stereo decisive principles counsel against that. That's a different analysis and that's more like Hurtada more like Bumble is. Well isn't that pretty much what the dissent in McDonald said? We don't like heller but at least let's just keep it applicable to the District of Columbia and the federal government and not apply it to the states. Well but I think that was a different for a different reason. In the plurality acknowledged the distinction with Bumble is in Hurtado being purely a matter of stereo decisive and that's the basic principle work we're calling on here which is if Austin remains good law only because of stereo decisive that doesn't make this a systematic sort of discounted right. That just means that you know you've got as a question of the court's history some other way you have to look at the situation but I think it's critical to understand also that the idea that somehow so-called modern in-run forfeiture are different from history because of the existence of innocent owner exceptions is also not correct. Innocent owner exceptions did exist within the last couple of hundred years. Indeed authorities contemporaneous with the ratification or roughly contemporaneous with the ratification of the 14th Amendment acknowledged that there there might be innocent owner defenses. The treatise by Bishop says if the law in its clemency permits an innocent owner to make a claim that does not convert into punishment that which was not already punishment it doesn't make any difference. So whether we no matter how we look at in-run forfeatures today and the features that they exhibit there are no different than the historical in-run forfeatures that this court has said in cases after Austin calling Austin into question that they were not punishment. In your view an in-rimm civil forfeiture is not an excessive fine is that right? Yes that is that is true. So what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti Mercedes or a special Ferrari or even Jolopy. There is no excessive fines issue there. What I will say in what I think is important to remember is that there is a constitutional limit which is the proof of instrumentality the need to prove nexus. That isn't a problem because it was the Bugatti in which he was speeding. There is all the nexus. He is struggling. What is it that is that just permissible under the Constitution? To forfeit the Bugatti for speeding? Yeah in name by the way it was only five miles an hour. Above the speed limit. Well you know the answer is yes and I would call your attention to the yes it's forfeitable. It is forfeitable. The Luis Barber case one person over the passenger limit and the entire ship is forfeit. This is heart history shows us in-rimm forfeiture. So the airplane is speeding. Well in-rimm forfeatures have always been with us and they have always been harsh. General yeah that is true but that's because that is up to a certain point in our history we didn't apply the bill of rights to the states. So in all of the situations before we apply the bill of rights to the-before we apply the bill of rights to states they did things that under incorporation were unconstitutional and in most of our cases they were history going both ways. Some states did, some states didn't. So really what the issue that we have to look at isn't is where has our understanding come to in terms of a particular bill of rights and in Austin we said it is a long part of history that punitive sanctions cannot be excessive and Justice Scalia said it very well for the Eighth Amendment to limit cash fines while permitting limitless in-kind assessments would make little sense altering only the form of the star chamber abuses. So at a certain point in Austin we looked at what had happened to in-rimm forfeiture and realized that we had just changed the star chamber form. I don't actually understand your argument based on history because without incorporation the history is going to be what you want it to be. The real question is the fundamental right. Are we trying to avoid a society that's like the star chamber and if we look at these forfeatures that are occurring today and that's what Austin documented many of them seem grossly disproportionate to the crimes being charged. So how do you deal with that? How do we avoid a star chamber return? Well the history that's relevant is not simply the history of what states were doing

. He is struggling. What is it that is that just permissible under the Constitution? To forfeit the Bugatti for speeding? Yeah in name by the way it was only five miles an hour. Above the speed limit. Well you know the answer is yes and I would call your attention to the yes it's forfeitable. It is forfeitable. The Luis Barber case one person over the passenger limit and the entire ship is forfeit. This is heart history shows us in-rimm forfeiture. So the airplane is speeding. Well in-rimm forfeatures have always been with us and they have always been harsh. General yeah that is true but that's because that is up to a certain point in our history we didn't apply the bill of rights to the states. So in all of the situations before we apply the bill of rights to the-before we apply the bill of rights to states they did things that under incorporation were unconstitutional and in most of our cases they were history going both ways. Some states did, some states didn't. So really what the issue that we have to look at isn't is where has our understanding come to in terms of a particular bill of rights and in Austin we said it is a long part of history that punitive sanctions cannot be excessive and Justice Scalia said it very well for the Eighth Amendment to limit cash fines while permitting limitless in-kind assessments would make little sense altering only the form of the star chamber abuses. So at a certain point in Austin we looked at what had happened to in-rimm forfeiture and realized that we had just changed the star chamber form. I don't actually understand your argument based on history because without incorporation the history is going to be what you want it to be. The real question is the fundamental right. Are we trying to avoid a society that's like the star chamber and if we look at these forfeatures that are occurring today and that's what Austin documented many of them seem grossly disproportionate to the crimes being charged. So how do you deal with that? How do we avoid a star chamber return? Well the history that's relevant is not simply the history of what states were doing. It's also the history of what the federal government was doing and there was no suggestion that before the civil rights amendments were passed that the federal government in all of its harsh in-rimm forfeatures was somehow violating the excessive fines clause. There was no proportionality limit there. Now I think with respect to understanding how we view today's forfeatures you can't distinguish what's happening now from history when historically an innocent owner was never not entitled to a defense. How would we ever say and I think Justice Scalia makes this point? How would we ever say that a forfeature as to an innocent owner was proportional because the owner is innocent. So that has never been part of the equation. Well the part that's different about modern forfeatures that I think this is what Justice Sotomayor is getting at is that many of them are punitive to the person and that was not part of in-rimm forfeatures a common law. We're dealing with it world in which it's different in kind not just degree not just a number but in kind and that's what Justice Scalia that's what everybody in Austin agreed on. That much was unanimous. Well and I guess I'm asking you given the concession by the state before the Indiana Supreme Court that the forfeature here was punitive if we don't overrule Austin and you want us to apply not just the question of incorporation but go to the merits don't you lose. No I don't think we lose because I don't think the question of punitive and remedial is something that Austin borrowed from Halper that test has been overruled as to double jeopardy. Now if it remains the test with respect to something that whether it's encompassed within the excessive fines clause there still has to be the analysis. I mean we have to figure out what to do. But you consider that it's punitive now it becomes a question of proportionality. But I don't think you can take these on a case by case basis. I think you have to say what is the right being claimed. It's not whether this particular forfeature was punitive or not. It's a question of whether in-rem forfeatures are of the sort that are swept within the excessive fines clause and historically the statute here says it's punitive and you conceded the statutes punitive. So I'm still stuck on how do you get out of that box? Well I suppose if that's if it's the magic word punitive we could just change the statute but I don't think that would be a very satisfactory result

. It's also the history of what the federal government was doing and there was no suggestion that before the civil rights amendments were passed that the federal government in all of its harsh in-rimm forfeatures was somehow violating the excessive fines clause. There was no proportionality limit there. Now I think with respect to understanding how we view today's forfeatures you can't distinguish what's happening now from history when historically an innocent owner was never not entitled to a defense. How would we ever say and I think Justice Scalia makes this point? How would we ever say that a forfeature as to an innocent owner was proportional because the owner is innocent. So that has never been part of the equation. Well the part that's different about modern forfeatures that I think this is what Justice Sotomayor is getting at is that many of them are punitive to the person and that was not part of in-rimm forfeatures a common law. We're dealing with it world in which it's different in kind not just degree not just a number but in kind and that's what Justice Scalia that's what everybody in Austin agreed on. That much was unanimous. Well and I guess I'm asking you given the concession by the state before the Indiana Supreme Court that the forfeature here was punitive if we don't overrule Austin and you want us to apply not just the question of incorporation but go to the merits don't you lose. No I don't think we lose because I don't think the question of punitive and remedial is something that Austin borrowed from Halper that test has been overruled as to double jeopardy. Now if it remains the test with respect to something that whether it's encompassed within the excessive fines clause there still has to be the analysis. I mean we have to figure out what to do. But you consider that it's punitive now it becomes a question of proportionality. But I don't think you can take these on a case by case basis. I think you have to say what is the right being claimed. It's not whether this particular forfeature was punitive or not. It's a question of whether in-rem forfeatures are of the sort that are swept within the excessive fines clause and historically the statute here says it's punitive and you conceded the statutes punitive. So I'm still stuck on how do you get out of that box? Well I suppose if that's if it's the magic word punitive we could just change the statute but I don't think that would be a very satisfactory result. I think what the court is probably looking for is some better way to describe what is included within the excessive fines clause something more substantive than that. And the cases after Austin all make clear that this distinction between punitive and remedial simply falls apart. You know the idea of deterrence and Austin the thought was if it's deterrent that makes it punishment. Well the courts now reject that and Hudson and in other cases and in Baja Cajun. So that part of the test doesn't hold up anymore either. So I think you have to go back and look at this entire you know whether you look very critically at the idea that there's something different about modern day forfeatures there really is no distinction no material distinction between them and what was happening at common law and certainly what was happening in the middle of the 19th century. So I think the other critical thing to bear in mind here is that if we get into the idea that we're somehow going to apply a grossly disproportionate test akin to the way it comes up in the in-personum cases effectively you're going to be wiping away centuries of precedent not just Venice but other innocent owner cases than Austin the little Charles the Malika Dell all these cases that say that an innocent owner has no constitutional defense and if it somehow has to come to the relationship between the guilt of the owner and the crime then those precedents I think simply cannot stand any longer. So I think you're in this situation where you're confronted with which you know which source of doctrine are we going to override. Well are we going to be wiping all that away or just leaving that for another day. I mean it what I guess this gets back to more such as first question I mean the question presented is does the excessive fines clause is it incorporated in the 8th amendment and I guess your argument seems to be this isn't an excessive fine and in fact it isn't a fine at all well it can deal with that later right. Well first of all of course it's in front of you now so why not it's been either it's been briefed and the lower courts can't come to any opposite conclusion so it's not going to percolate but the second point is that even if we were to say we're not going to revisit Austin the history of the right is still critical and McDonald tells us that and it has to inform the question of incorporation and the court has never incorporated where there's that kind of history that is four square against the right that's being claimed and I think that that is the going to have to employ you just you just want us to make sure that in our opinion that we say if we're ruling against you that the excessive fines are incorporated under our incorporation doctrine and not say civil in-rem forfeitures are incorporated. Well but if that's all the court says unfortunately the lower courts are going to then read Austin and say well you're in civil in-rem and so that's part of excessive fines and and when are we ever you know going to have a court that's going to create any kind of of you know dispute on that point. Just I'm clear you're asking us to overrule Austin. I think that's the only way that you can win with a straight face. No I don't not with a straight no look I think that's the most historically sound thing to do but I don't think that that's if you're unwilling to do that that cannot be the end of the analysis on incorporation because again you have to take into account under your precedence the history of the right being claimed not just some of the history not just the in-personam history but also the in-rem history and there's no- But again it just seems as though there are two questions and one question is incorporating the right and the other question is the scope of the right to be incorporated and really what you're arguing is about the scope of the right. Well and we can incorporate the right without saying a word about the scope of the right. Now as you say Austin says something about the scope of the right and that's a problem for you but but you're really asking us to talk about the scope of the right aren't you? Well certainly that would that's what we think is the most historically sound thing to do but even if you you know assume that away and we're just looking at what the whether we're going to incorporate the right the test for incorporation is historically rooted or fundamental to order liberty and to answer that question you have to look at the history of the right if the right includes well that's why I asked at the beginning what's your theory for how you define the right in which history you look to? Because you're really suggesting that we don't take the right wholesale we try to chop it up and I guess you know there are always going to be questions about the scope of the right to be incorporated and so far we have not addressed those questions when we've decided whether to flip the switch of incorporation or not we've understood those questions to be distinct and to be questions for another day and why is it that you're saying we should not use that pretty standard practice and instead start chopping up the right at the incorporation stage? We think that's one way to do it we don't think that's the only way and if indeed the court doesn't want to chop up the right and it wants to just look at the excessive fines clause it has to look at all the history and that includes the history of in-rem and our view is that history means that you can't incorporate if the history is only in persona then I don't think there's any serious question about incorporation but if the history includes the in-rem history the much larger history the much the largely uncontested history that is that then there is no precedent for incorporating in that circumstance whereas that there is that amount of history standing four square against a substantial number of applications of the right it there just isn't anything to look to on that. You cited McDonald as an example earlier of a case where the court had in your view chopped up the right as incorporated or you say in the second amendment as a different scope after McDonald's? No no no no what I'm saying is that the methodology of McDonald when doing the incorporation analysis was to ask what's the right being claimed and the right being claimed was the right to have guns in the home for self-defense and we think that's instructive as to how you look at the re-post McDonald this is somewhere I think to watch Justice Kagan's asking that the right is the same as against the states and the federal government

. I think what the court is probably looking for is some better way to describe what is included within the excessive fines clause something more substantive than that. And the cases after Austin all make clear that this distinction between punitive and remedial simply falls apart. You know the idea of deterrence and Austin the thought was if it's deterrent that makes it punishment. Well the courts now reject that and Hudson and in other cases and in Baja Cajun. So that part of the test doesn't hold up anymore either. So I think you have to go back and look at this entire you know whether you look very critically at the idea that there's something different about modern day forfeatures there really is no distinction no material distinction between them and what was happening at common law and certainly what was happening in the middle of the 19th century. So I think the other critical thing to bear in mind here is that if we get into the idea that we're somehow going to apply a grossly disproportionate test akin to the way it comes up in the in-personum cases effectively you're going to be wiping away centuries of precedent not just Venice but other innocent owner cases than Austin the little Charles the Malika Dell all these cases that say that an innocent owner has no constitutional defense and if it somehow has to come to the relationship between the guilt of the owner and the crime then those precedents I think simply cannot stand any longer. So I think you're in this situation where you're confronted with which you know which source of doctrine are we going to override. Well are we going to be wiping all that away or just leaving that for another day. I mean it what I guess this gets back to more such as first question I mean the question presented is does the excessive fines clause is it incorporated in the 8th amendment and I guess your argument seems to be this isn't an excessive fine and in fact it isn't a fine at all well it can deal with that later right. Well first of all of course it's in front of you now so why not it's been either it's been briefed and the lower courts can't come to any opposite conclusion so it's not going to percolate but the second point is that even if we were to say we're not going to revisit Austin the history of the right is still critical and McDonald tells us that and it has to inform the question of incorporation and the court has never incorporated where there's that kind of history that is four square against the right that's being claimed and I think that that is the going to have to employ you just you just want us to make sure that in our opinion that we say if we're ruling against you that the excessive fines are incorporated under our incorporation doctrine and not say civil in-rem forfeitures are incorporated. Well but if that's all the court says unfortunately the lower courts are going to then read Austin and say well you're in civil in-rem and so that's part of excessive fines and and when are we ever you know going to have a court that's going to create any kind of of you know dispute on that point. Just I'm clear you're asking us to overrule Austin. I think that's the only way that you can win with a straight face. No I don't not with a straight no look I think that's the most historically sound thing to do but I don't think that that's if you're unwilling to do that that cannot be the end of the analysis on incorporation because again you have to take into account under your precedence the history of the right being claimed not just some of the history not just the in-personam history but also the in-rem history and there's no- But again it just seems as though there are two questions and one question is incorporating the right and the other question is the scope of the right to be incorporated and really what you're arguing is about the scope of the right. Well and we can incorporate the right without saying a word about the scope of the right. Now as you say Austin says something about the scope of the right and that's a problem for you but but you're really asking us to talk about the scope of the right aren't you? Well certainly that would that's what we think is the most historically sound thing to do but even if you you know assume that away and we're just looking at what the whether we're going to incorporate the right the test for incorporation is historically rooted or fundamental to order liberty and to answer that question you have to look at the history of the right if the right includes well that's why I asked at the beginning what's your theory for how you define the right in which history you look to? Because you're really suggesting that we don't take the right wholesale we try to chop it up and I guess you know there are always going to be questions about the scope of the right to be incorporated and so far we have not addressed those questions when we've decided whether to flip the switch of incorporation or not we've understood those questions to be distinct and to be questions for another day and why is it that you're saying we should not use that pretty standard practice and instead start chopping up the right at the incorporation stage? We think that's one way to do it we don't think that's the only way and if indeed the court doesn't want to chop up the right and it wants to just look at the excessive fines clause it has to look at all the history and that includes the history of in-rem and our view is that history means that you can't incorporate if the history is only in persona then I don't think there's any serious question about incorporation but if the history includes the in-rem history the much larger history the much the largely uncontested history that is that then there is no precedent for incorporating in that circumstance whereas that there is that amount of history standing four square against a substantial number of applications of the right it there just isn't anything to look to on that. You cited McDonald as an example earlier of a case where the court had in your view chopped up the right as incorporated or you say in the second amendment as a different scope after McDonald's? No no no no what I'm saying is that the methodology of McDonald when doing the incorporation analysis was to ask what's the right being claimed and the right being claimed was the right to have guns in the home for self-defense and we think that's instructive as to how you look at the re-post McDonald this is somewhere I think to watch Justice Kagan's asking that the right is the same as against the states and the federal government. Oh yes oh yes but again we're not dealing there with the same a stereotype ISIS issue that we are grappling with with respect to Austin which I think is puts this in more like in a hertado and bambole is category we're not asking for again we're not asking for a federalism discount what we're asking for is some ability to take cognizance of of stereotycisous without sacrificing the necessary historical analysis. At the time of McDonald and at the present time all the the court has held that the second amendment right protects the right to have a certain firearms in the home for self-defense hasn't gone further but if this court were to go further let's say in another case involving the District of Columbia and said that the right included something more than that would we have to go through another round of incorporation inquiry to determine whether this broader right applies to the state or would it follow automatically under McDonald that it fought it applies to the state. Well I think particularly given the methodology the court would use in coming to grips with what that new right is it would likely just follow I don't see there would be any need because it would be essentially the same analysis anyway but you know I think the idea here that you can simply look at one part of the history without looking at all of it you know I don't think that you can look to to McDonald or any of the other presidents and have guidance for that. You have to take you can't just ignore it you have to do something with it you have to take it into account and whether that means chopping it up or you know grappling with the right as a whole in saying that that history councils against incorporation or simply overruling Austin that's you know one of these ways has to take into account the in-ram history so that's I think you know we offer those those three suggestions and you know we think historically the most historically sound thing to do is to overrule Austin. So I think you know we've got also grounds for saying that Austin is I think fits within the court's precedence on when to overrule cases with notwithstanding stereo decisives. In Hudson this court has already said that the test that Austin applies that comes out of Halper is unworkable it has gone through the history in Baja Cajian and largely shown that Austin was wrongly decided. There isn't any serious reliance interest I think that would mean that there was going to be some sort of disruption if Austin were overruled. So you know the normal factors the court takes into account with respect to its precedence I think are not barriers here to over overruling Austin and the other thing I think you know you almost can't get away from the prospect of at least implicitly overruling precedence no matter what you do here if it's not going to be Austin then it's going to be the innocent owner cases. Benis, Van Oster all those precedents and I think it's instructive here that my friend cites the to the descent in Benis acknowledging that if you're going to incorporate a grossly disproportionate analysis then really what you've got to do is start getting away from the innocent owner you know the lack of an in a required innocent owner exception that that's going to become something that is going to have to be part of that analysis. Now just a secluded I do want to call your attention to in Austin his concurrence was grappling with this idea is can we do something that's grossly disproportionate in in Rem the way we would do it in Persona and his concern was you know what maybe really what it comes down to is simply this idea of Nexus and the Nexus test that he was describing there is essentially what we're describing that would be the proper test under due process you know is there a connection between the property and the offense and we think that belongs in due process but Justice Scalia I think was on to something there when he was acknowledging that there really has to be a different treatment given all that history given all those precedents of the court there has to be a differential treatment and at the end of the day I think you know what you've got to do here when you're looking at this incorporation question is not simply be you know I think you know Cavalier about the idea this is easy to incorporate you don't want to do that I think without taking a very careful look at what is the right that you're actually incorporating and does it fit with the doctrines and the history of the court and all of the ways that it's handled in corporation before I know if there's nothing else I'll see you read it in my time thank you thank you general mr. hot it for minutes you honors this case is about constitutional house keeping five times over the last 30 years this court has remarked that the freedom from excessive economic sanctions should be understood to apply to the states in hall in Kennedy in roper and Cooper industries and in booth all that remains to do is to expressly so hold my friends approach by contrast is radical he asked the court to overrule Austin the unanimous decision that has been on the books for 25 years that was reaffirmed in Hudson in Bajikagian and again in coquash and that case looked at the same history that my friend urges this court to review here it would allow if the court were to overrule Austin governments at all levels to impose constitutionally excessive civil in rim forfeatures based on nothing more than a label this is not a labeling game it would also revive the so-called two-track approach that this court has rejected now for more than 50 years so even if we imagine that that the court would take such a radical approach it would break with for example the commercial speech doctrine which there was a long history of commercial speech activity in this country before the 1970s decision in which this court held that there is a commercial speech right and did so in a case against the state without even pausing on the incorporation question so you know even if some forfeatures are non punitive other forfeatures are punitive and the forfeiture in this case clearly meets Austin's test that it be at least partly punitive if the court looks to Indiana code 34 24 14 A it shows that this statute is more punitive than the statute at issue in Austin because it required the state in its case in chief to prove that petitioner knew about or should have known about the crime at issue here and that is not true under 21 USC 881 the statute at issue in Austin both statute tab innocent owner defenses so if anything this is more punitive not less if the court has no further questions thank you you are thank you council the case is submitted

We'll hear an argument this morning in case 17 1091, Tim's versus Indiana. Mr. Hodget? Mr. Chief Justice, and may it please the Court, 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 scheme 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 Eighth 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 asks 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 Protection's apply to the states the exact same way that they apply to the federal government. There's no reason to adopt the so-called two-track approach at this late stage of the incorporation doctrine, especially- That's so of all incorporations. What about the non-unanimous jury in criminal cases? Justice Ginsburg, as the Court recognized in McDonald, the non-unanimous jury in criminal cases is an anomalous decision that results from a one-justice concurrence in the AAPIDACA case. And there's no reason as the Court recognized in McDonald for that to control when there's over 50 years of precedent beginning in Moloi versus Hogan, MAP, Aguilar, again in McDonald, rejecting that two-track approach. Adopting the two-track approach at this late stage would only invite further litigation about rights that are already incorporated. When this Court interpreted the Fourth Amendment right to be free from having your cell phone tracked in the Carpenter case, if my friends argument were correct, we would have to relitigate whether that right applies to the states. Virtually all of the Bill of Rights, with the one exception noted by Justice Ginsburg, has been incorporated on the right-by-right approach used in McDonald, not on the application by application approach proposed. There are a few others that have not been incorporated. Isn't that right? Oh, that's true. Absolutely. But that's either because they haven't been addressed by this Court, like in the case of the Third Amendment right against court-earning soldiers, or because as the Court recognized in McDonald, they long predate the era of selective incorporation. So I think it's possible that if the rights that issue in Bombayless and Hurtado were to come before this Court today, the results might be different. But we don't have to get into that history here because the history on the question presented of whether the excessive fines clause applies to the states is clear. What is the provision and the constitution that you rely on? The Section 1 of the 14th Amendment, Your Honor. It's the component of the liberty that is substancefully, substantively protected by the Fourth Amendment's Duke process clause. Yes, Your Honor. We also have an alternative argument under Section 1's privileges or immunity's clause. That would be about non-citizens. Yes, textually, Justice Ginsburg, that would lead out non-citizens. But of course, petitioner is a citizen, and that could be a decision for another day. It's also true that the fundamental and deeply rooted rights that are currently incorporated under the Duke process clause apply to non-citizens, and they would continue to do so regardless of the Court's reasoning in this case. Well, you can see there's different arguments about whether and this like gathers the state's primary submission, whether excessive fines are prohibited and whether civil in-rem forfeitures are. And I certainly understand the argument that the disproportion and excessiveness arguments would be quite different with respect to forfeiting the instrumentalities of the crime. I mean, argument could be made well, that's always proportionate since it's the way the crime is accomplished. I don't agree, Your Honor, because whatever might be said of historic in-rem forfeiture practices, forfeatures today, like this one, are fines within the meaning of the clause. The Court was unanimous on that point in Austin, and since then it has reaffirmed that point in the Bajikagean case, in the Hudson case, and most recently in Kokesh, all of which rely on Austin. As a result, state and federal courts today are... Of course, the argument there was not for the purposes we're talking about today in terms of incorporation. And if the test is, as it has been, you know, whether it's a essential fundamental and all that, you can see a distinction between saying, okay, you're going to be fined $500,000 and saying, yeah, you're going to... I mean, the action is not against the individual, it's against the asset, and you will lose assets that you use in crime. The first one sounds, yeah, that's pretty excessive. The second one, you can certainly argue, well, that makes a lot of sense. Doubtless, Your Honor, but these questions go to the excessiveness analysis, not to the incorporation analysis that is currently before the court. When the court incorporated the Second Amendment right to keep in bear arms in the McDonald's case, it had rejected that right for 140 years until the Heller decision, and then just two years later, incorporated it against the states. So there's no reason to require, as my friend suggests, should be required, that litigants show a historic pattern of the right being enforced, and in any event, as the court recognized in Austin, in Bajikajian, and most recently in Cokesh, we're dealing with a different animal. It uses the same name, civil in-rim forfeiture, but it's a different animal in that it's not just about personal jurisdiction and pirate ships anymore, it's about every person's property, and every officer on the street now has the power to strip people of their property. Well, your client was convicted of an offense that was punishable by a maximum of 10 years imprisonment, am I correct? 20 years imprisonment. 20 years imprisonment, and he was sentenced to six, but it was suspended, right? That's correct, Your Honor, he was sentenced to home detention for one year, and then five years of probation, the minimum on that scale. So if he had been sentenced to six years of actual imprisonment, would that have been a violation of the Aval Amendment? Possibly, Your Honor, we would have to look at the proportionality to the gravity of the offense, and for what it's worth, Judge Todd in rural Grant County, Indiana, looked at this offense and the impact on the community, and determined that it would be grossly disproportionate to strip petition or his property, or even to send him to prison. And I think that's significant, especially given that the Indiana Court of Appeals affirmed that decision, and the Indiana Supreme Court didn't even address it because it didn't have an opportunity to reach the excessiveness question. What have we said about application of the grossly disproportionate standard? Well, Your Honor, as you know, the Court in Bogycagian articulated that standard for the first time, and it hasn't had an opportunity to address it again. Well, I mean in the context of imprisonment, not fines. Oh, absolutely, Your Honor, under the cruel and unusual punishment clause, the Court has articulated a very similar standard, is the punishment grossly disproportionate to the gravity of the offense. And there's nothing radical about allowing trial judges at the end of a proceeding to assess under all of the circumstances, as the Court emphasized in Bogycagian they should, even with respect to end-room forfeatures. That's something that trial judges do every day. But your assumption is that you assess the particular circumstances of the case. I mean, I suppose if you ask people, do you think six months is an excessive sentence for whatever it was, three counts of dealing in hazardous illegal drugs, many people might say no. It's only when you say, well, the six months too much for that, whatever the circumstances were here, the much, I don't want to say insignificant, but lighter quantities involved. What do you look at, the particular circumstances, or what the crime is. The crime is not dealing with tiny amounts of drugs, the crime that he's convicted for is much broader than that. Your Honor, excessiveness is, quote, necessarily fact-intensive. That's from the Bogycagian case. Excuse me, Your Honor, that's actually from the Second Circuit's Fawn Hoth case, which attempts to apply Bogycagian to the real-world circumstances of an in-room forfeature. But Black Stone recognized that as well. There's no way to assess the disproportionality to the gravity of the offense and the abstract. By contrast, the incorporation question that's before the Court today is easy to assess in the abstract. We ask ourselves not whether civil in-room forfeatures, right against excessive in-room forfeatures is somehow deeply rooted and hence can be incorporated. We ask whether the freedom from excessive fines, which has been recognized since the 13th century, is incorporated. And it's important to recognize that the Indiana Supreme Court's decision in this case did not adopt my friend's suggestion of simply saying that it doesn't apply to in-room forfeatures. The citizens of Indiana today don't enjoy protection from excessive fines of any kind. And that's true of the citizens of three other jurisdictions as we pointed out in our petition for social rights. If we were to assume for the sake of argument that imprisonment for six years would not be an eighth amendment violation for this offense, what would that say about a fine of $42,000? Is it possible that six years imprisonment is not an eighth amendment violation, but a fine of $42,000? Is an eighth amendment violation? Well, Your Honor, we'd have to know all of the circumstances of the case. And if we're talking about this particular case, I think it's clear that the judge on the ground that was closest to this crime felt that it was grossly disproportionate to the gravity. This is a first-time offender who was caught dealing a small amount of drugs. And the vehicle here was not interesting. But we're talking about a federal constitutional standard, not whatever sentencing philosophy, any one of the thousands of judges in the United States who imposed sentences might think is the right sentence for a particular crime and a particular offender. Absolutely, Your Honor. But the question presented here is merely whether a defendant in any case has the right to interpose a defense under the excessive fines clause, we're not asking the court to articulate a new standard of excessiveness. We're not asking the court to determine that this forfeiture was or was not excessive. We're merely emphasizing that part of the purpose of the 14th amendment was to guarantee to all 330 million Americans a right to a defense under the excessive fines clause. Indiana denied petitioner that defense and the court should reverse and remain. Two state courts here struck down this forfeiture held that it was punitive under Austin believing that the clause already applies to the states and believing that this forfeiture would be excessive. The Indiana Supreme Court did not address the excessiveness question. It quote, declined to find or assume incorporation until this court quote, affordatively holds that the clause applies. Is there any in-rem forfeiture? Not this one, which relied on the criminal activity of this defendant. But let's say that Austin, the state did away with innocent owner defense. So that the forfeiture was against the innocent owner. Would that be punishment? I think under my reading of Austin, it was that only those forfeatures that are punitive count under the clause. So what can a state do to take it out of its punitive nature? Well, it's important to recognize that Austin says that if the forfeiture is at least partly punitive, it comes within the confines of the clause. So, of course, if they do away with the innocent owner defense and the innocent owner comes in and says, this is my property, I didn't commit a crime. They say it's too bad. Well, the property did. I think your honor, it's safe to say that that could be deemed excessive if we look at the binis case. That case is about a co-owner who didn't commit the crime. And the court held that as a matter of federal substantive due process, that co-owner did not have an innocent owner defense. But that does not dictate that the that co-owner couldn't articulate an excessive fines defense into the three. Why? It's not punitive against him. It's the property that is being charged with having been involved in a crime. I see your question, Your Honor. I think that if someone had done nothing wrong, let us say that someone steals my car as I'm walking into a target, commits a bank robbery, and the police sees that vehicle quite righteously. I mean, as a practical matter, of course, the police are going to return the vehicle to me. But if the state were to go so far as to institute forfeiture proceedings against that person, as Justice Kennedy recognized in his Austin concurrence, there would be several serious constitutional problems with that. And it may be that in those circumstances, where I'm entirely blameless, that the court would hold that there is a substantive due process right to reject that forfeiture. Or the court would find it to be grossly disproportionate to the gravity of the non-existent defense. So I think binis can be easily reconciled with this case, particularly when the court looks at Justice Stevens' descent in binis, which with two other justices points out that Mrs. Binis didn't bring in excessive fines defense, had she done so, at least those three justices would have been inclined to rule in her favor. So you're saying even if it's a classic in-rim forfeiture of a crime that's been known for centuries, that would potentially violate the excessive fines clause. Yes, Your Honor, this court has rejected the idea that states can work their way around the excessive fines clause based on nothing more than a label. This is not a labeling game. The court looks to the substance of what's happening. It emphasized that most recently, in the co-cash decision, that fines, penalties, they sometimes serve several purposes. But with respect to civil in-rim forfeatures, if any of those purposes are punitive in nature, then the defense can be raised. And that makes sense. The situation with jail prison. I have a vague recollection, often such recollections are incorrect, but I have a vague recollection that there was a case in which California's three strike law was applied to sentence to life a person whose final offense was stealing an $80 golf club. And I think the majority said, no, we're not going to look at that because it's too complicated. Am I right? Does that ring a bell? Because if that still is the law, if I think it is, it's something anomalous about saying, by the way, if you took his Mercedes, we will look to see whether that's disproportionate to taking a golf club. But if you send him to jail for life, we won't. Now, have I stated this correctly? And if so, how do we deal with it? Well, you're on our, I think the most relevant authority here is the Harmalin decision, in which this court, similar to the situation you're describing, allowed a person to be sentenced, from a person from Michigan, to be sentenced to life without the possibility of parole, for having 650 grams of, I believe it was cocaine. And the court reason that looked, that amount of cocaine could be broken up and easily used for distribution. So it's appropriate in these circumstances to punish that harshly. Here, we're dealing with two grams. By question, really, is are there cases where we have said that the punishment is disproportionate, where it's simply a question of the degree of punishment, i.e. life imprisonment, and the nature of the offense, e.g. stealing a golf club. There are. And if there are not, it seems odd, and I think I'd have to think about it, or maybe we should address in some way or argument, as to why there is that difference. Your Honor, I think if we posit that difference, yes, it's, it's, it's like saying there is a difference. But between sentencing a person for stealing a golf club, yeah, life sentence, I think that no, there is no difference, and that if there is that tension between the excessifying's clause and the cruel and unusual punishment clause, that in an appropriate case, this court should resolve it. I don't think it's, it's, it's, it wasn't simply stealing a golf club, it was a, the third offense, so it was, it was a punishment for recidivists. Absolutely, you're right. And thank you. Yeah, but I also robbed the chicken coop. It gets me back to the question I was asking before. If six years imprisonment is not a violation of the Eighth Amendment, and you know, you said it might be, I think you might have a, something of an uphill fight to prove that, but three years, two years, how, how low would the ceiling of permissible term of imprisonment have to go in order to justify a holding that affine of $42,000 is a violation of the Eighth Amendment. What is the equation between the, the monetary, between dollars in, in a fine and time imprisonment? You're on our, although it might be unsatisfying, the court has said repeatedly that there is no equation and that there can be no equation because these situations are inherently real world in nature and that courts have been directed specifically with respect to N. Rimm Forfeiture's and the Bajikage in case to assess all of the circumstances. And as Justice Ginsburg was assisting me, it's absolutely the case that the court has to look at not just the value of the property, not just the gravity of the offense, but also the offender himself and his effect potentially on the community, if he remains at large. There's nothing new about that. Trial judges, everyday assess in all of the circumstances, what is an appropriate punishment. And all we're saying in this case, we're several steps removed from the question presented right now. All we're saying is that you have an excessive fines defense that you may raise. So we are several steps removed, but I think that the import of some of these questions is, look, we've made it awfully, awfully hard to assert a disproportionality claim with respect even to imprisonment. And if it's at least equally hard to assert a disproportionality claim with respect to fines, we could incorporate this tomorrow and it would have no effect on anybody. That's potentially true, Your Honor, but the standard of assessing this type of economic sanction, it's important to recognize as being developed as we speak in the lower courts. This court's decision in Bajikage has prompted the lower courts to try to articulate factors and some courts use some factors, other courts use others, and an appropriate case with full briefing and a comment from Amiki, this court can and should decide that important question. But this case merely insists that petitioner like every other American has the right to raise the excessifying's defense and that the Indiana courts can then assess the situation. Well, but you're asking us to, you know, buy a pig in a poke, in other words, you're saying incorporate this, but, you know, we don't even know whether it means we're going to decide whether it's $10,000 is enough for $20,000, or if we're simply going to say something along the lines of harmingland, which it's not just that it's whatever so many grams, it's that it's the third offense, and so that's what's the protection against that is fundamental to a civilized society or whatever the standard is that we've been applying. You say don't worry about what it means, just incorporate it and then figure it out later on. Your Honor, I'm not saying don't worry about it, I think that this is a pressing question and in an appropriate case, I think that the court does need to take it up. But if we look to the harmingland decision, Justice Scalia's opinion in that case points out that there's special reason to be concerned when the government uses economic sanctions to punish a person because unlike all other forms of punishment, whether it be life imprisonment, Justice of Forfeiture is in fines, raise revenue, and there's good reason, there's good history for being concerned about the sovereign power to raise revenue using punishment. Well, let me give you two examples. Suppose your client instead of using a land Rover, was it? Yes, a land Rover had been using a 15 year old Kia or at the other extreme, suppose he used a Bugatti which costs like a quarter of a million dollars. Would the excessifying clause apply differently in those three cases? No, Your Honor. It applies the same. The same with the result? Be different. If he had been driving a car with a book value of $1,500, would the result be different? Well, Your Honor, we would have to know more. We would have to know what the gravity of the offense was. We know. It's the offense we have here. We know what the offense is. I think in this instance, any forfeiture of the vehicle would be excessive because this vehicle was not instrumental to the crime. It was incidental. It's no surprise that in rural Indiana, a person might drive somewhere to meet with someone and that doesn't make this vehicle somehow like a pirate ship that had been sailing the high seas. Well, that's contrary to a lot of civil forfeiture law. I mean, this was an instrumentality of the crime. This is how we got to the deal place and how we carried the drugs. Normally, you're carrying the drugs in your car. It's pretty well established. Your car can be forfeited. Potentially, Your Honor. It's well established that the car is subject to forfeiture. It is not, however, well established that that would necessarily not be excessive. What does it make a difference? We've been talking about the value of the item. What if the person doing this was multi-millionaire? $42,000 doesn't seem excessive to him. And yet, if someone is impoverished, does that matter? Well, Your Honor, if the court looks to the brief of the Eighth Amendment scholars filed in support of neither party, they discuss this. Magnacarda had the principle of Salo Contentamento, the idea that you can't take from a man so much that he would be destitute. And the court has suggested that in the Bajicagian case that that might be a factor, but it specifically declined in Bajicagian to articulate factors, recognizing that this is highly contextual, highly fact intensive, and something that ought to be developed in the lower courts before this court pronounces any particular test. On the federal side, how does this work? What kind of forfeatures have been held unconstitutional? Have any? Yes, Your Honor. The second circuit's bond-hoff decision is helpful. That case dealt with a wife who is unaware that her husband was cultivating marijuana in the family home. And the second circuit wrestled with that case, articulated factors for assessing excessiveness, and determined that that wife was entitled to return of a portion of the property. And that's important to recognize, too. This isn't an all-or-nothing thing. It may be that the Bugatti that Justice Alito was talking about would be forfeited in part and not in full, or that a person who was particularly dependent on their vehicle say they're a mother, and it's the minivan that they used to get their children to school that a trial judge might determine that that is constitutionally excessive. Your honours, if they're on her further questions, I'd like to reserve the balance of my time. Thank you, Council. General Fisher? Mr. Chief Justice, and may it please the court, In-Rem four features 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 may be in the Senate. 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 excess of fines clause is incorporated against the states, whether this particular fine qualifies because it's an In-Rem four feature, another question. But can we at least get the theoretical question off the table whether you want to do it through the due process clause and look at history and tradition? No, gosh, excessive fines, guarantees against them, go back to Magna Carta in 1225, the English Bill of Rights, the Virginia Declaration of Rights, pretty deep history. Well, whether one wants to look at privileges and immunities, you might come to the same conclusion. Can we at least agree on that? I have two responses to that. First, well, I think a yes or a no would probably be a good starting question. Well, I think with the respect to in person and the answers yes, but you have to take into account, and this is the methodology of McDonald. You have to take into account the history and traditions of the right being claimed. Now, the right being claimed here is a right of proportionality is to In-Rem four features. The court has to grapple with that history, which is really not seriously contested that that was never subject to purpose. But whatever the excessifying clause guarantees, we can argue again about its scope and in RAM and in Persona, but whatever it in fact is, it applies against the states, right? Well, again, that depends. Most these incorporation cases took place in the 1940s. And here we are in 2018 still litigating incorporation of bill of rights. Really? Come on, General. 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 person in history, the in RAM history. For the clause, why do you have to take into account all the history to pick up on Justice Gorsuch's question? Is it just too late in the day to argue that any of the bill of rights is not incorporated? The court has never incorporated right against the states where it could not conclude that there was a relationship that was fundamental and deeply rooted in our history. But aren't all the bill rights at this point and our conception of what they stand for, the history of each of them incorporated? Well, with fairness, not with your respect to your concession, conception on excessive fines, and Austin's what stands in the way of that. Austin has been undermined by subsequent cases, including Urcery, including Baja Khazin, which by the way was it? I was not inside of it in a footnote with seeming approval. Well, that's one thing that's interesting about that footnote is that it's a, as we can endorsement, as I think we can imagine. It said that Austin was justified by a reference to some difference between common law forfeatures and so-called modern forfeatures. Well, Austin didn't depend on that distinction and that distinction does not exist. The so-called modern day forfeatures are materially the same with respect to the conceptual nature of them, that they are against the property and not the person with respect to the procedural nature, which is civil and not criminal. If I understood your response to Justice Gorsuch, it was essentially that we can't answer the question wholesale, that we have to look at the particular right being invoked. So, I guess the question is, do you have a theory about how we go about dividing up rights? How do we decide that we're looking at a particular right against in-room forfeatures as opposed to a general right against excessive fines? Well, I think McDonald gives us some instruction on that. McDonald talked about not simply the Second Amendment, but about the right to self-defense in the home. Other cases of incorporation this Court has decided have approached, for example, reasonableness under the Fourth Amendment as distinguished from the exclusionary rule. There are precedents that do that, but there is no precedent where the Court has incorporated a right that was not deeply rooted or fundamental. I mean, that seems to make the incorporation question sort of indistinguishable from the substantive question. I think you have to come to grips with the history, whether you just, whether you call it incorporation or you call it the substantive merits question. We've given you three different ways to do this. The most historically sound way is to overrule Austin. You don't want to do that. Well, you have counsel, you know, if just to pause on that for a second, you know, the Indian Supreme Court didn't address the merits questions. Didn't address any of this forefature in Ramm-Mimprasund. Just said that the excessive fines clauses not incorporated period. Why isn't that just wrong? And then you can go make these arguments about why it doesn't apply to this case on remand. Do you really want us to answer the merits questions, too? Well, the problem with relying on lower court percolation on the merits question, in terms of whether Austin is correct, is that Austin binds the lower courts. They don't have an opportunity to revisit that. This Court does. The matter has been, it's been, okay, let's say this Court's not inclined to revisit Austin. You're going to lose not just the incorporation question, but the merits question, too. Good news work. I'm not sure what you mean by the merits question in that regard. With respect to whether this forefature is excessive, certainly that discussion would, in that argument, would take place back in the Indiana Supreme Court. With respect to the meaning of Austin, whether Austin remains good, I think, you know, that's only something this Court can affect. And I think with respect to the broader question, even if the question Justice Kagan, is the excessive fines clause as a whole and not something where we're going to slice and dice the rights, we still have to take into account that history of in remfwarf feature. And we don't have any examples of incorporation where there is this substantial history that calls into question the fundamental or deeply rooted nature of a very large, you know, area where that right would be applied. But we do have a relatively recent history calling into question the division between in-rem and in-person. Certainly in the area of personal jurisdiction, it was once, Kagan, rem jurisdiction and personal jurisdiction. And yet in Schaffer against Heiten of the Court said, we're not going to do that anymore. Do process controls both. So whether you label it in-rem or in-person, let's remember that it's things don't have rights or obligations in and of themselves. It's people that have rights or obligations with respect to things. Well, with respect to Schaffer, I think what's critical there is the word quasi because of course it was not a straight-up in-rem proceeding. We're talking about the ability to seize assets for a case where there had been an in-person judgment. And that distinguishes that category of cases from the historical in-rem forfatures we're talking about. In-rem is still critical for jurisdictional reasons for it comes up in sovereign immunity. It binds the states there that we can't assert sovereign immunity the same way when we've got an in-rem proceeding. You've got other situations. Double jeopardy. We already have a distinction in the double jeopardy context where in-rem is critical. So I don't think we can just wave it away. What is the difference between the approach that you're advocating here and the way the court used to address the question whether rights protected by the Bill of Rights apply to the states before it began the process of incorporating provisions of the Bill of Rights one by one. And it said that what applied to the states were those rights that were implicit in the concept of order liberty. So there was a two-tiered system. And that seems to be what you're asking us to go back to with respect to the excessive fines clause. We don't have a difference. I don't. Could you explain what is the difference between those two approaches? Yes indeed. We're not suggesting some sort of systematic differential treatment. And Macdonald the court acknowledged that the differences that exist between the Bill of Rights rights that apply to the federal government in the states are a matter of solidarity. Now here what we're saying is if that if the in the analysis because of the lack of historical roots of the in-rem proportionality right there is a being a difference that has to be based on the stereotypes of Austin. If Austin remains good law only because of stereotypes that puts it in the same category as those other cases. It's not a systematic federalism discount if you will on. If Austin were overruled then the rule as applicable to the federal government would change as well. That's right. That's right. We would be on the same. I'm still not seeing the difference between the two. Well the difference would be if you look at Austin if you were to look at Austin and say you know what Austin was dead right historically this is historically rooted and it is fundamental that I don't think there's any grounds for us to say that there should be the outcome should be any different between the states of the federal government. If you look at Austin you say you know what that's questionable but we don't want to overturn it because it's a stereo decisive principles counsel against that. That's a different analysis and that's more like Hurtada more like Bumble is. Well isn't that pretty much what the dissent in McDonald said? We don't like heller but at least let's just keep it applicable to the District of Columbia and the federal government and not apply it to the states. Well but I think that was a different for a different reason. In the plurality acknowledged the distinction with Bumble is in Hurtado being purely a matter of stereo decisive and that's the basic principle work we're calling on here which is if Austin remains good law only because of stereo decisive that doesn't make this a systematic sort of discounted right. That just means that you know you've got as a question of the court's history some other way you have to look at the situation but I think it's critical to understand also that the idea that somehow so-called modern in-run forfeiture are different from history because of the existence of innocent owner exceptions is also not correct. Innocent owner exceptions did exist within the last couple of hundred years. Indeed authorities contemporaneous with the ratification or roughly contemporaneous with the ratification of the 14th Amendment acknowledged that there there might be innocent owner defenses. The treatise by Bishop says if the law in its clemency permits an innocent owner to make a claim that does not convert into punishment that which was not already punishment it doesn't make any difference. So whether we no matter how we look at in-run forfeatures today and the features that they exhibit there are no different than the historical in-run forfeatures that this court has said in cases after Austin calling Austin into question that they were not punishment. In your view an in-rimm civil forfeiture is not an excessive fine is that right? Yes that is that is true. So what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti Mercedes or a special Ferrari or even Jolopy. There is no excessive fines issue there. What I will say in what I think is important to remember is that there is a constitutional limit which is the proof of instrumentality the need to prove nexus. That isn't a problem because it was the Bugatti in which he was speeding. There is all the nexus. He is struggling. What is it that is that just permissible under the Constitution? To forfeit the Bugatti for speeding? Yeah in name by the way it was only five miles an hour. Above the speed limit. Well you know the answer is yes and I would call your attention to the yes it's forfeitable. It is forfeitable. The Luis Barber case one person over the passenger limit and the entire ship is forfeit. This is heart history shows us in-rimm forfeiture. So the airplane is speeding. Well in-rimm forfeatures have always been with us and they have always been harsh. General yeah that is true but that's because that is up to a certain point in our history we didn't apply the bill of rights to the states. So in all of the situations before we apply the bill of rights to the-before we apply the bill of rights to states they did things that under incorporation were unconstitutional and in most of our cases they were history going both ways. Some states did, some states didn't. So really what the issue that we have to look at isn't is where has our understanding come to in terms of a particular bill of rights and in Austin we said it is a long part of history that punitive sanctions cannot be excessive and Justice Scalia said it very well for the Eighth Amendment to limit cash fines while permitting limitless in-kind assessments would make little sense altering only the form of the star chamber abuses. So at a certain point in Austin we looked at what had happened to in-rimm forfeiture and realized that we had just changed the star chamber form. I don't actually understand your argument based on history because without incorporation the history is going to be what you want it to be. The real question is the fundamental right. Are we trying to avoid a society that's like the star chamber and if we look at these forfeatures that are occurring today and that's what Austin documented many of them seem grossly disproportionate to the crimes being charged. So how do you deal with that? How do we avoid a star chamber return? Well the history that's relevant is not simply the history of what states were doing. It's also the history of what the federal government was doing and there was no suggestion that before the civil rights amendments were passed that the federal government in all of its harsh in-rimm forfeatures was somehow violating the excessive fines clause. There was no proportionality limit there. Now I think with respect to understanding how we view today's forfeatures you can't distinguish what's happening now from history when historically an innocent owner was never not entitled to a defense. How would we ever say and I think Justice Scalia makes this point? How would we ever say that a forfeature as to an innocent owner was proportional because the owner is innocent. So that has never been part of the equation. Well the part that's different about modern forfeatures that I think this is what Justice Sotomayor is getting at is that many of them are punitive to the person and that was not part of in-rimm forfeatures a common law. We're dealing with it world in which it's different in kind not just degree not just a number but in kind and that's what Justice Scalia that's what everybody in Austin agreed on. That much was unanimous. Well and I guess I'm asking you given the concession by the state before the Indiana Supreme Court that the forfeature here was punitive if we don't overrule Austin and you want us to apply not just the question of incorporation but go to the merits don't you lose. No I don't think we lose because I don't think the question of punitive and remedial is something that Austin borrowed from Halper that test has been overruled as to double jeopardy. Now if it remains the test with respect to something that whether it's encompassed within the excessive fines clause there still has to be the analysis. I mean we have to figure out what to do. But you consider that it's punitive now it becomes a question of proportionality. But I don't think you can take these on a case by case basis. I think you have to say what is the right being claimed. It's not whether this particular forfeature was punitive or not. It's a question of whether in-rem forfeatures are of the sort that are swept within the excessive fines clause and historically the statute here says it's punitive and you conceded the statutes punitive. So I'm still stuck on how do you get out of that box? Well I suppose if that's if it's the magic word punitive we could just change the statute but I don't think that would be a very satisfactory result. I think what the court is probably looking for is some better way to describe what is included within the excessive fines clause something more substantive than that. And the cases after Austin all make clear that this distinction between punitive and remedial simply falls apart. You know the idea of deterrence and Austin the thought was if it's deterrent that makes it punishment. Well the courts now reject that and Hudson and in other cases and in Baja Cajun. So that part of the test doesn't hold up anymore either. So I think you have to go back and look at this entire you know whether you look very critically at the idea that there's something different about modern day forfeatures there really is no distinction no material distinction between them and what was happening at common law and certainly what was happening in the middle of the 19th century. So I think the other critical thing to bear in mind here is that if we get into the idea that we're somehow going to apply a grossly disproportionate test akin to the way it comes up in the in-personum cases effectively you're going to be wiping away centuries of precedent not just Venice but other innocent owner cases than Austin the little Charles the Malika Dell all these cases that say that an innocent owner has no constitutional defense and if it somehow has to come to the relationship between the guilt of the owner and the crime then those precedents I think simply cannot stand any longer. So I think you're in this situation where you're confronted with which you know which source of doctrine are we going to override. Well are we going to be wiping all that away or just leaving that for another day. I mean it what I guess this gets back to more such as first question I mean the question presented is does the excessive fines clause is it incorporated in the 8th amendment and I guess your argument seems to be this isn't an excessive fine and in fact it isn't a fine at all well it can deal with that later right. Well first of all of course it's in front of you now so why not it's been either it's been briefed and the lower courts can't come to any opposite conclusion so it's not going to percolate but the second point is that even if we were to say we're not going to revisit Austin the history of the right is still critical and McDonald tells us that and it has to inform the question of incorporation and the court has never incorporated where there's that kind of history that is four square against the right that's being claimed and I think that that is the going to have to employ you just you just want us to make sure that in our opinion that we say if we're ruling against you that the excessive fines are incorporated under our incorporation doctrine and not say civil in-rem forfeitures are incorporated. Well but if that's all the court says unfortunately the lower courts are going to then read Austin and say well you're in civil in-rem and so that's part of excessive fines and and when are we ever you know going to have a court that's going to create any kind of of you know dispute on that point. Just I'm clear you're asking us to overrule Austin. I think that's the only way that you can win with a straight face. No I don't not with a straight no look I think that's the most historically sound thing to do but I don't think that that's if you're unwilling to do that that cannot be the end of the analysis on incorporation because again you have to take into account under your precedence the history of the right being claimed not just some of the history not just the in-personam history but also the in-rem history and there's no- But again it just seems as though there are two questions and one question is incorporating the right and the other question is the scope of the right to be incorporated and really what you're arguing is about the scope of the right. Well and we can incorporate the right without saying a word about the scope of the right. Now as you say Austin says something about the scope of the right and that's a problem for you but but you're really asking us to talk about the scope of the right aren't you? Well certainly that would that's what we think is the most historically sound thing to do but even if you you know assume that away and we're just looking at what the whether we're going to incorporate the right the test for incorporation is historically rooted or fundamental to order liberty and to answer that question you have to look at the history of the right if the right includes well that's why I asked at the beginning what's your theory for how you define the right in which history you look to? Because you're really suggesting that we don't take the right wholesale we try to chop it up and I guess you know there are always going to be questions about the scope of the right to be incorporated and so far we have not addressed those questions when we've decided whether to flip the switch of incorporation or not we've understood those questions to be distinct and to be questions for another day and why is it that you're saying we should not use that pretty standard practice and instead start chopping up the right at the incorporation stage? We think that's one way to do it we don't think that's the only way and if indeed the court doesn't want to chop up the right and it wants to just look at the excessive fines clause it has to look at all the history and that includes the history of in-rem and our view is that history means that you can't incorporate if the history is only in persona then I don't think there's any serious question about incorporation but if the history includes the in-rem history the much larger history the much the largely uncontested history that is that then there is no precedent for incorporating in that circumstance whereas that there is that amount of history standing four square against a substantial number of applications of the right it there just isn't anything to look to on that. You cited McDonald as an example earlier of a case where the court had in your view chopped up the right as incorporated or you say in the second amendment as a different scope after McDonald's? No no no no what I'm saying is that the methodology of McDonald when doing the incorporation analysis was to ask what's the right being claimed and the right being claimed was the right to have guns in the home for self-defense and we think that's instructive as to how you look at the re-post McDonald this is somewhere I think to watch Justice Kagan's asking that the right is the same as against the states and the federal government. Oh yes oh yes but again we're not dealing there with the same a stereotype ISIS issue that we are grappling with with respect to Austin which I think is puts this in more like in a hertado and bambole is category we're not asking for again we're not asking for a federalism discount what we're asking for is some ability to take cognizance of of stereotycisous without sacrificing the necessary historical analysis. At the time of McDonald and at the present time all the the court has held that the second amendment right protects the right to have a certain firearms in the home for self-defense hasn't gone further but if this court were to go further let's say in another case involving the District of Columbia and said that the right included something more than that would we have to go through another round of incorporation inquiry to determine whether this broader right applies to the state or would it follow automatically under McDonald that it fought it applies to the state. Well I think particularly given the methodology the court would use in coming to grips with what that new right is it would likely just follow I don't see there would be any need because it would be essentially the same analysis anyway but you know I think the idea here that you can simply look at one part of the history without looking at all of it you know I don't think that you can look to to McDonald or any of the other presidents and have guidance for that. You have to take you can't just ignore it you have to do something with it you have to take it into account and whether that means chopping it up or you know grappling with the right as a whole in saying that that history councils against incorporation or simply overruling Austin that's you know one of these ways has to take into account the in-ram history so that's I think you know we offer those those three suggestions and you know we think historically the most historically sound thing to do is to overrule Austin. So I think you know we've got also grounds for saying that Austin is I think fits within the court's precedence on when to overrule cases with notwithstanding stereo decisives. In Hudson this court has already said that the test that Austin applies that comes out of Halper is unworkable it has gone through the history in Baja Cajian and largely shown that Austin was wrongly decided. There isn't any serious reliance interest I think that would mean that there was going to be some sort of disruption if Austin were overruled. So you know the normal factors the court takes into account with respect to its precedence I think are not barriers here to over overruling Austin and the other thing I think you know you almost can't get away from the prospect of at least implicitly overruling precedence no matter what you do here if it's not going to be Austin then it's going to be the innocent owner cases. Benis, Van Oster all those precedents and I think it's instructive here that my friend cites the to the descent in Benis acknowledging that if you're going to incorporate a grossly disproportionate analysis then really what you've got to do is start getting away from the innocent owner you know the lack of an in a required innocent owner exception that that's going to become something that is going to have to be part of that analysis. Now just a secluded I do want to call your attention to in Austin his concurrence was grappling with this idea is can we do something that's grossly disproportionate in in Rem the way we would do it in Persona and his concern was you know what maybe really what it comes down to is simply this idea of Nexus and the Nexus test that he was describing there is essentially what we're describing that would be the proper test under due process you know is there a connection between the property and the offense and we think that belongs in due process but Justice Scalia I think was on to something there when he was acknowledging that there really has to be a different treatment given all that history given all those precedents of the court there has to be a differential treatment and at the end of the day I think you know what you've got to do here when you're looking at this incorporation question is not simply be you know I think you know Cavalier about the idea this is easy to incorporate you don't want to do that I think without taking a very careful look at what is the right that you're actually incorporating and does it fit with the doctrines and the history of the court and all of the ways that it's handled in corporation before I know if there's nothing else I'll see you read it in my time thank you thank you general mr. hot it for minutes you honors this case is about constitutional house keeping five times over the last 30 years this court has remarked that the freedom from excessive economic sanctions should be understood to apply to the states in hall in Kennedy in roper and Cooper industries and in booth all that remains to do is to expressly so hold my friends approach by contrast is radical he asked the court to overrule Austin the unanimous decision that has been on the books for 25 years that was reaffirmed in Hudson in Bajikagian and again in coquash and that case looked at the same history that my friend urges this court to review here it would allow if the court were to overrule Austin governments at all levels to impose constitutionally excessive civil in rim forfeatures based on nothing more than a label this is not a labeling game it would also revive the so-called two-track approach that this court has rejected now for more than 50 years so even if we imagine that that the court would take such a radical approach it would break with for example the commercial speech doctrine which there was a long history of commercial speech activity in this country before the 1970s decision in which this court held that there is a commercial speech right and did so in a case against the state without even pausing on the incorporation question so you know even if some forfeatures are non punitive other forfeatures are punitive and the forfeiture in this case clearly meets Austin's test that it be at least partly punitive if the court looks to Indiana code 34 24 14 A it shows that this statute is more punitive than the statute at issue in Austin because it required the state in its case in chief to prove that petitioner knew about or should have known about the crime at issue here and that is not true under 21 USC 881 the statute at issue in Austin both statute tab innocent owner defenses so if anything this is more punitive not less if the court has no further questions thank you you are thank you council the case is submitte