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The New Black Codes: Racialized Wealth Extraction, Economic Justice, and Excessive Fines Schemes in Timbs v. Indiana


Emma Coleman Jordan (@economicjustice) is Professor of Law at Georgetown University Law Center.

Angela P. Harris is Professor Emerita at the UC Davis School of Law.

When Tyson Timbs’ father died, he left his son an insurance policy. Timbs used $42,000 of that money to buy a Land Rover SUV, and he was driving that car when he was arrested for selling heroin to an undercover police officer in Indiana. Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft, and the judge sentenced him to one year of home detention, five years of probation (including a court-supervised addiction treatment program), and $1,203 in fees in costs.

The State of Indiana, however, was not done with Timbs. It hired a private lawyer to bring a civil forfeiture action against Timbs’ Land Rover, on the theory that the vehicle had been used to commit the crime of transporting heroin. The court held that the Land Rover was indeed used in the commission of an offense, but denied the requested forfeiture, observing that its purchase price was more than four times the maximum he might have been fined for his actual conviction. Forfeiture of the Land Rover, the judge determined, would be grossly disproportionate to the gravity of Timbs’s offense, and for that reason it would be unconstitutional under the Excessive Fines Clause of the Eighth Amendment. The Court of Appeals of Indiana affirmed that decision, but the Indiana Supreme Court reversed on a different ground, holding that the Excessive Fines Clause applied to federal but not state governments.

When the United States Supreme Court agreed to hear Timbs v. Indiana, anticipation ran high across the political spectrum, and revealed some strange bedfellows. The Southern Poverty Law Center and the Cato Institute appeared on the same amicus brief. Justices Gorsuch and Sotomayor energetically agreed with one another during oral argument. However, when the Supreme Court issued its unanimous decision on February 20, 2019, the opinion offered less than interested parties might have hoped for. Justice Ginsburg, writing for the Court, affirmed that the Excessive Fines Clause does apply to the states, as “incorporated” into the Due Process Clause of the Fourteenth Amendment, and held that in rem forfeitures fall within the Clause’s protections. The Court, however, did not offer a standard for deciding when a fine is excessive. From our perspective, moreover, Timbs v. Indiana represents a missed opportunity to discuss racialized wealth extraction in its past and present forms, and to situate the Excessive Fines Clause within the constitutional debate about economic rights that arise from predation by the government itself.

To the extent that our eighteenth-century Constitution sets out economic rights at all, they pertain to protecting those with wealth from having it confiscated by the government. The Fifth Amendment Takings Clause, for example, prevents the government from physically capturing private property for public use without “just compensation.” Since 1897, the Court has used incorporation doctrine to protect individuals against state takings. Although the parallel ruling with respect to excessive fines has taken much longer, the idea that there should be limits on government attempts to extract wealth from citizens goes back to at least 1215, when the Magna Carta required that economic sanctions “be proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.” As the Court points out, today “acknowledgment of the right’s fundamental nature remains widespread;” excessive fines clauses can be found in all fifty states.

What the Constitution does not forbid, apparently, is the systematic extraction of wealth from certain social groups lacking political power. Interestingly, both Justice Ginsburg and Justice Thomas in his concurrence discuss the practice of wealth extraction from African Americans after the abolition of slavery. Slavery itself, of course, was a massive, nationwide machine for wealth extraction, and a successful one. As Justices Ginsburg and Thomas further point out, the Black Codes passed in the South following the Civil War were an effort to build a similar machine. Using vague, elastic crimes such as “vagrancy” and draconian financial penalties for their commission, planters and state and local governments sought to recapture the fruits of black labor.

Wealth extraction from the poor, especially the black poor, however, did not end with the Black Codes. Today, facing a landscape of economic austerity, state and local governments have returned to fines and fees as a business plan. Consider the case of a municipal court judge in Ferguson, MO, appointed by an elected city council to sit on criminal cases. When evaluating whether he should be re-appointed, the council learned that he routinely failed to listen to testimony or review sentencing reports, including criminal histories. Rather than remove the judge for rushing to enter verdicts without this essential information, the council explicitly chose to weigh his revenue-producing performance more heavily than his commitment to due process and fairness for defendants.

The retention of this municipal court judge reflects a pattern of interlocking, racially discriminatory purpose shared among elected city officials, police, judges, budget administrators and clerks in Ferguson, Missouri. In Ferguson, blacks were 67% of the total population of 20,000. Yet, Black drivers were 85% of all discretionary police stops with black drivers receiving 90% of the revenue-producing citations, court fines for missed appearances, and arrest warrants 2012-2014. The city generated over $2 million from fines and fees in 2012, representing 13% of all government revenue. A disproportionate amount of this revenue was generated by traffic stops, parking tickets, court fees and fines levied on the African American community.

As notorious as Ferguson has become, it is not unique. An important review of the Census   Survey of Local and State Finances found a formidable nationwide pattern of black wealth depletion through arbitrary local fines, fees, and forfeitures. One study of this data found that the cities most likely to exploit residents through excessive fines are those with the most African Americans residents. When the researchers dug more deeply into the data, they concluded that the “use of fines as a source of revenue is not a socioeconomic problem, but a racial one.” This national statistical survey of excessive fine practices mirrors the Department of Justice findings in Ferguson.

The new revenue-generating systems are eerily similar to the Reconstruction era of “draconian fines for violating broad proscriptions on ‘vagrancy’ and other dubious offenses” to “subjugate newly freed slaves and maintain the prewar racial hierarchy.” The emergence of municipal fines targeted to ensnare black citizens in a maze of arbitrary police citations, fines and arrests will inevitably contribute to the structural problem of the growing racial wealth gap. Economists Sandy Darity and Darrick Hamilton show how this gap is the product of long history of intertwined market forces, government action, and racial violence.

In the meantime, the Court has refused to provide constitutional protections for forms of wealth-building. For example, the public good of free education has always been a much-touted way out of poverty and powerlessness. A free public education is a poor man’s wealth. Yet, in Rodriguez v San Antonio School District, the Court refused to dismantle racial and wealth-based inequalities embedded in the property tax-based school finance system. In the process, it closed the door on indirect challenges to the inequalities of segregated housing, which in turn determine the cumulative value of the local property tax base available to fund public schools.

Holding that the Excessive Fines Clause incorporates an “ability to pay” standard, rather than a “grossly disproportionate to the crime” standard, would have been one small way to uphold the rights of those who do not have wealth. By passing that question back to the states, the Timbs Court continued its tradition of passivity and inaction with respect to racialized wealth extraction.

[1] Jordan and Harris, Economic Justice, Race ,Gender, Identity and Economics, (2011) at Introduction,v-ix; Chapter 3, States, Markets and the Problem of Governance.