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Legal Learning: The 8th Amendment is incorporated

James Manahan

The United States Supreme Court has just ruled, unanimously, that the 8th Amendment to the Constitution is incorporated into the 14th Amendment and applies to the states.

People who didn't go to law school may not know what that sentence means nor how important it is. Here is the explanation.

When the Bill of Rights was adopted in 1791, those 10 amendments were intended to limit the power of the federal government, not state governments. The 8th Amendment reads as follows: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." By the federal government, that is.

After the Civil War, in 1868, the 14th Amendment was adopted. It reads as follows: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The 14th Amendment did not specifically refer to any of the rights in the first 10 amendments, such as freedom of speech, freedom of religion, the right to bear arms, etc. But it did say that no state may abridge the privileges or immunities of citizens, nor deprive any person of life, liberty or property, without due process of law. The Supreme Court has had to decide exactly what that language means.

Justice Hugo Black strongly argued that the language in the 14th Amendment means that the entire Bill of Rights applies to the states. But the Supreme Court preferred to address the issue by looking only at the case it was deciding.

Thus in 1947, the court decided in the Everson case that the 1st Amendment's guarantee against establishment of religion was "incorporated" into the 14th Amendment and applied to the states. Before that, a state could have an official state religion.

In 1925, freedom of speech was incorporated against the states in the Gitlow case. In 1931, freedom of the press was incorporated (Near v. Minnesota). Way back in 1897, the court decided that the 5th Amendment protection against taking of private property without just compensation applied to the states.

In 1961, the right against unreasonable search and seizure was applied to the states (Mapp v. Ohio). In 1969, the Benton case decided that the protection against double jeopardy was incorporated.

The 6th Amendment right to a trial by jury was incorporated in 1968 in the Duncan case. More recently, in 2010, the right to keep and bear arms was incorporated in the McDonald case.

The 8th Amendment protection against cruel and unusual punishments was incorporated against the states in 1962 (Robinson v. California). But until this year, the protection against excessive fines had not been incorporated. States could impose any fines they wanted to after a conviction, or even before a conviction, with no constitutional limits. That has now changed.

In Timbs v. Indiana, Justice Ruth Bader Ginsburg wrote that "For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties."

The case involved a man named Tyson Timbs, who was charged with selling heroin to undercover officers. He pleaded guilty and was sentenced to a year of house arrest, five years probation and an addiction-treatment program, plus a fine and fees of $1,203.

But Indiana then filed a civil suit to obtain Timbs' Land Rover, which he had bought with the proceeds of his father's life insurance policy, saying he had used it to transport heroin. The car was valued at $42,000, more than four times the maximum fine for his drug conviction. The Supreme Court decided that was excessive and unconstitutional.

In fiscal year 2018, state and local agencies received $400 million through civil forfeitures. The New York City Police Department alone took in $7.8 million. For the first time, the Supreme Court has now ruled that states cannot impose excessive fines, including the seizure of property. Rarely does the court hand down a ruling of such constitutional magnitude, and seldom do all nine justices agree to restrict the power that police and prosecutors exert over individuals.

Fines can no longer be "grossly disproportional to the gravity of the offense."

Let's hear a cheer for "incorporation!"

James H. Manahan is a Harvard Law School graduate and was named one of Minnesota's Top Ten Attorneys. He now handles family law, wills and probate in the Lake County area, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. He can be reached at jimmanahan@gmail.com or jamesmanahan.com