The Excessive Fines Clause
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inﬂicted.”
Eighth Amendment to the U.S. Constitution
What is the Excessive Fines Clause?
The Excessive Fines Clause is one of the three protections guaranteed by the Eighth Amendment, alongside its ban on excessive bail as well as its prohibition of cruel and unusual punishment. Enacted as part of the Bill of Rights in 1791, the protections found within the Excessive Fines Clause span centuries and can be traced all the way back to Magna Carta in 1215.
At first, the Excessive Fines Clause only applied to the federal government. But in a landmark case litigated by the Institute for Justice, Timbs v. Indiana, the U.S. Supreme Court declared in 2019 that state and local governments were also bound by the Excessive Fines Clause.
“For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history,” the late Justice Ruth Bader Ginsburg wrote for the court. “Exorbitant tolls undermine other constitutional liberties.” This protection, Justice Ginsburg noted, is “deeply rooted in this nation’s history and tradition.”
Despite this rich historical lineage, courts have long neglected the Excessive Fines Clause, depriving Americans of a key constitutional safeguard. And even after Timbs, courts are failing to enforce it.
The results have been catastrophic. Without any meaningful protections, ordinary Americans have been slapped with outrageously high fines for minor code infractions, like having tall grass or parking on your own lawn. Unbound by the Excessive Fines Clause, state and local governments have increasingly raised revenue by imposing fines and fees.
What Counts as a “Fine”?
In a 1993 decision, Austin v. United States, the Supreme Court declared that “the Excessive Fines Clause limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’” To be considered a “fine,” a government-ordered payment must serve “in part to punish.”
But despite what should be a clear, common-sense definition of the word “fine,” many government agencies have been able to sidestep the protections of the Excessive Fines Clause by simply relabeling the “fines” they impose.
Consider Monica Toth, who had half of her bank account—over $2.1 million—taken by the IRS for failing to file a one-page report. Nevertheless, the First Circuit U.S. Court of Appeals ruled that what happened to Monica wasn’t a “fine,” but a “civil penalty.” And by imposing a “civil penalty,” the IRS could evade scrutiny under the Excessive Fines Clause.
Unfortunately, in January 2023, the Supreme Court declined to hear her case. Only Justice Neil Gorsuch dissented and would have taken her case. “Far from permitting that kind of maneuver,” he wrote, “this Court has warned the Constitution guards against it.”
What Makes a Fine “Excessive”?
The first time the Supreme Court rejected a fine for being unconstitutionally excessive didn’t happen until 1998. In United States v. Bajakajian, the Supreme Court ruled against the federal government for trying to take $357,144 from Hosep Bajakajian, who failed to fully report that he was taking money out of the country.
Writing for the majority, Justice Clarence Thomas noted that Bajakajian’s actions caused only a “minimal” amount of harm and affected the government “in a relatively minor way.” And at the time, the maximum fine for failure to report was $5,000. Since taking $357,144 was “larger than the $5,000 fine imposed…by many orders of magnitude,” the Supreme Court ruled this would be “grossly disproportional to the gravity of his offense” and violate the Excessive Fines Clause.
But in the years since, the Supreme Court hasn’t issued any additional rulings that would clarify what counts as “excessive.” As a result, state and federal courts have reached wildly different conclusions when it comes to determining “excessive” fines.
For instance, there’s Tyson Timbs, who had his $42,000 Land Rover seized and forfeited over a minor drug crime. After Tyson prevailed in Timbs v. Indiana, the U.S. Supreme Court sent his case back down to the Indiana Supreme Court. The latter was tasked with deciding whether forfeiting his car was unconstitutionally excessive.
In another major victory for Tyson, the Indiana Supreme Court firmly rejected the state’s argument that “if the property was an instrument of crime, then its forfeiture is not excessive—full stop.” Instead, the court ruled that determining whether a fine is excessive consists of multiple factors. That includes:
- “The harshness of the punishment;”
- “The severity of the underlying offenses;” and
- “The economic effects a fine would have on the punished individual.”
“To hold the opposite would generate a new fiction,” the court ruled, “that taking away the same piece of property from a billionaire and from someone who owns nothing else punishes each person equally.”
The Indiana Supreme Court then sent the case back down to a trial court, which ruled that forfeiting the Land Rover would violate the Eighth Amendment, under the “grossly disproportional” framework the Indiana Supreme Court outlined. However, the state refused to back down and appealed that decision to the Indiana Supreme Court, which issued a second ruling in favor of Tyson in 2021. Finally, after an eight-year-long legal battle, Tyson won back his car.
Unfortunately, not all courts have been as engaged as the Indiana Supreme Court. On the opposite end of the spectrum, in 2022, the 11th Circuit U.S. Court of Appeals ruled against Jim Ficken, who was fined nearly $30,000 by the city of Dunedin, Florida simply for letting his grass grow too long. Even though the court acknowledged that “repeatedly having overgrown grass is not particularly harmful,” it still declared that “the fine was not excessive.” Since Dunedin could fine homeowners $500 per day for tall grass, merely compounding those fines over time was completely constitutional in the eyes of the 11th Circuit—no further analysis required.