Skip Navigation
Analysis

SCOTUS Could Offer Protections From Excessive Fines Imposed by States

But many unresolved questions remain.

  • Priya Raghavan
November 28, 2018

Update Febru­ary 20, 2019: The Supreme Court has ruled that the Excess­ive Fines Clause does apply to the states.

“Can we all just agree that the Excess­ive Fines Clause is incor­por­ated against the states?” Supreme Court Justice Neil Gorsuch posed this ques­tion to the state of Indi­ana in the Timbs v. Indi­ana oral argu­ment on Wednes­day, express­ing disbe­lief that someone would argue other­wise. Judge Gorsuch’s ques­tion provided substan­tial insight into how the Supreme Court will likely rule on whether or not the Eighth Amend­ment’s Excess­ive Fines Clause applies to states. 

Timbs v. Indi­ana involves the use of civil asset forfeit­ure by states and local­it­ies. The peti­tioner, Tyson Timbs, used his recently-purchased Land Rover vehicle when buying and trans­port­ing a small amount of heroin. When Timbs pled guilty in 2015, the state of Indi­ana sought to take posses­sion of his Land Rover, which he had purchased for $42,000. The trial court refused, saying that the forfeit­ure would be an uncon­sti­tu­tion­ally excess­ive fine under the Eighth Amend­ment. But the Supreme Court of Indi­ana reversed, explain­ing that the U.S. Supreme Court had not yet decided whether the Eighth Amend­ment prohib­i­tion against excess­ive fines applies to, or is “incor­por­ated against,” the states.

The Bren­nan Center for Justice, together with allies from across the ideo­lo­gical spec­trum includ­ing the Drug Policy Alli­ance and Freedom­Works, filed an amicus brief in Wednes­day’s case arguing that the clause should be incor­por­ated against the states. The brief discusses the modern exper­i­ence with civil asset forfeit­ure and how it dispro­por­tion­ately affects low-income communit­ies and communit­ies of color, and argues that such fines are exactly what the Eight Amend­ment’s Excess­ive Fines Clause was meant to protect against. Based on Wednes­day’s oral argu­ment, the Supreme Court seems poised to adopt that posi­tion, too.

Clear signal­ing on whether the Excess­ive Fines Clause is incor­por­ated against the states

Other Justices echoed Justice Gorsuch’s posi­tion that the Excess­ive Fines Clause is incor­por­ated against the states. Justice Brett Kavanaugh asked Indi­ana’s Soli­citor General whether there was any doubt that, by this point, the Bill of Rights was incor­por­ated. Justice Sonia Soto­mayor noted that the only way the state of Indi­ana could prevail “with a straight face” is if the Supreme Court were to over­rule preced­ent. Justice Samuel Alito concurred, noting that Indi­ana was asking the Court to revert to a bygone era before the vast major­ity of the Bill of Rights was applied to the states in the 1940s.

The Justices gave a clear indic­a­tion of how they may rule on the incor­por­a­tion ques­tion. But Justice Elena Kagan poin­ted out that what incor­por­a­tion means for indi­vidual rights is less clear. If the Supreme Court ulti­mately decides that the Excess­ive Fines Clause is incor­por­ated against the states, the more diffi­cult ques­tion remains: what exactly consti­tutes an excess­ive fine? 

The Justices touched on a few issues cent­ral to this inquiry.

What counts as a fine?

The threshold ques­tion of whether the Excess­ive Fines Clause applies in any given case turns on whether the sanc­tion is a “fine” — mean­ing a punit­ive or “partially punit­ive” sanc­tion. Indi­ana’s Soli­citor General attemp­ted to argue that a civil asset forfeit­ure is not a fine, but the Court appeared uncon­vinced. The Supreme Court has previ­ously ruled that civil asset forfeit­ure is punit­ive in nature — hence the skep­ti­cism from the bench. 

But the determ­in­a­tion of what counts as a “fine” has far-reach­ing consequences. In addi­tion to civil asset forfeit­ure, states and local­it­ies assess vari­ous types of fines and user fees on crim­inal defend­ants. Whether these fines and user fees are subject to the Excess­ive Fines Clause remains an open ques­tion. 

Should a person’s wealth factor into whether a fine is “excess­ive”?

In determ­in­ing whether a fine is excess­ive, courts ask whether it is “grossly dispro­por­tion­ate” to the crime commit­ted. Justices Stephen Breyer and Alito asked whether a person’s relat­ive wealth should also factor into an excess­ive fine determ­in­a­tion. This ques­tion is an import­ant one, given that the crim­inal justice system, and the courts in partic­u­lar, increas­ingly rely on fund­ing from fines collec­ted from low-income defend­ants. While these fines may not seem like a lot of money to some, they can cause profound harm to poorer indi­vidu­als and their famil­ies — those most impacted by the crim­inal justice system.

What is a “dispro­por­tion­ate” fine?

The stand­ard for determ­in­ing whether a fine is excess­ive — if it’s “grossly dispro­por­tion­ate” to the crime commit­ted — mirrors the stand­ard for the Eighth Amend­ment’s Cruel and Unusual Punish­ment clause. As Justice Kagan noted, prov­ing that a lengthy prison sentence consti­tutes cruel and unusual punish­ment is an extremely high stand­ard to meet. For example, in Harmelin v. Michigan, the Court held that Harmelin’s life without parole sentence for cocaine posses­sion was not cruel and unusual. Justice Kagan explained that if the courts make it equally diffi­cult to prove Excess­ive Fine viol­a­tions, it could have virtu­ally no prac­tical effect, even if the Court decides that the Excess­ive Fines Clause is incor­por­ated against the states.

(Image: Shut­ter­stock.com)