Guest Essayist: Allison R. Hayward, Vice President of Policy at the Center for Competitive Politics

Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Excessive Fines Clause

The Eighth Amendment declares excessive fines to be unconstitutional.   Along with the other clauses of the amendment, which prohibit excessive bail and cruel and unusual punishment, this clause sought to protect Americans against prosecutorial overreach by the government.

The Eighth Amendment echoed Art I, § 9, of the Virginia Declaration of Rights, which itself appropriated from the English Bill of Rights. Section 10 of the English Bill of Rights of 1689, like our Eighth Amendment, stated that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.”

The 1689 English version was meant to curb abuses by English judges. During the reigns of the Stuarts, judges had imposed heavy fines on the King’s enemies.  In the 1680’s in particular, the use of fines became even more excessive and selective, and opponents of the King who could not pay were imprisoned.  The authors of the 1689 Bill of Rights knew this only too well – having been themselves subjected to selective and heavy fines by the King’s judges.

The Eighth Amendment in general received little debate in the First Congress, and the Excessive Fines Clause received even less attention. Perhaps this is because the wisdom of these limitations was obvious to the Framers; at least eight of the original States that ratified the Constitution had some equivalent of the Excessive Fines Clause in their respective Declarations of Rights or State Constitutions.

Even so, there are two obvious ambiguities in the clause that have required interpretation.  First, what kinds of payments are “fines?”  Second, what fines should be considered “excessive?”

I.      What is a fine?

Given that the Eighth Amendment is identical to a clause from the English Bill of rights, it is useful to know what a “fine” was thought to be in English law.  English cases immediately prior to the enactment of the English Bill of Rights stressed the difference between civil damages and criminal fines. Lord Townsend v. Hughes, 2 Mod. 150, 86 Eng. Rep. 994 (C. P. 1677).  A fine was defined as a payment to the state, not a state-ordered payment to another private citizen.  Accordingly, court-ordered damages paid to a private litigant, even punitive damages, have been held not to implicate the Eighth Amendment.  Browning-Ferris Industries v. Kelco Disposal, 492 US 257 (1989). However, asset forfeiture, which requires property to be awarded to the government as punishment for some offense, is subject to the Eighth Amendment.  Austin v. United States, 509 U.S. 602, 622 (1993).

II.     When is a fine “excessive?”

Whether a fine is excessive depends on its proportionality.  That is, the amount of the forfeiture must bear some relationship to the gravity of the offense that it is intended to punish. Austin v. United States, 509 U. S., at 622-623.  In the case of a monetary fine, a court would consider whether the value of the fine is in relation to the seriousness of the offense.  A hypothetical extreme example would be exacting a million dollar fine to punish jaywalking.  Closer cases are naturally harder to judge.

Unfortunately, the fines English judges had imposed were never described with much specificity.  None of these sources suggests how out of proportion a fine must be in order to be deemed constitutionally excessive.

The Supreme Court has addressed this issue in a handful of cases.  It has concluded that a forfeiture of hundreds of thousands of dollars is disproportionate when a defendant is guilty only of a failure to declare the funds when leaving the country.

United States v. Bajakajian, 524 U.S. 321 (1998). In the in rem asset forfeiture context, Justice Scalia has observed that the Constitution should prohibit seizure of property that cannot properly be regarded as an instrumentality of the offense— for example the building in which an isolated drug sale happens to occur. For him, the right question here is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.

The Supreme Court has noted that legislatures have the primary duty to decide what fines are proportionate, and deserve deference to make such standards. The Court’s present interpretation of the excessive fines clause will reject an unconstitutionally excessive fine only when the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense.  As a result, the Eighth Amendment protects citizens against the most outrageous fines, but not against large but less extreme fines.

For further reading: Laurence Claus, Methodology, Proportionality, Equality: Which Moral Question Does the Eighth Amendment Pose? 31 Harvard J. of Law and Pub. Pol’y 38 (2008).

Allison Hayward graduated from Stanford University with degrees in political science and economics, and received her law degree from the University of California, Davis.  She clerked for Judge Danny J. Boggs of the United States Court of Appeals for the Sixth Circuit.  Hayward is Chairman of the Federalist Society’s Free Speech and Election Law Practice Group. She also serves on the Board of the Office of Congressional Ethics.  She is an active member of the California and Washington, D.C. bars, and she is a certified FINRA arbitrator.

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April 5, 2012

Essay #34


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