The Excessive Fines Clause

. . . nor [shall] excessive fines [be] imposed. . . .

—John F. Stinneford

Introduction

The Excessive Fines Clause of the Eighth Amendment has roots reaching back at least to the adoption of Magna Carta in 1215. An explicit prohibition of excessive fines first appeared in the English Bill of Rights (1689) and was repeated in many American colonial legal codes and early state constitutions. Historical evidence indicates that the clause requires both a measure of proportionality between the fine and the offense and a consideration of the offender’s capacity to pay. The Supreme Court did not decide any cases under the Excessive Fines Clause until 1989. The Court engages in proportionality analysis, but has not decided whether the clause also requires courts to consider the offender’s capacity to pay. The clause was formally incorporated against the states in 2019.

History Before 1787

The prohibition of excessive fines originated in the Magna Carta of 1215.¹ Chapter 14 provided that a “A freeman shall not be amerced,” or fined, “for a slight offence, except in accordance with the degree of the offence; and for a grave offence he shall be amerced in accordance with the gravity of the offence, yet saving always his ‘contenement’; and a merchant in the same way, saving his ‘merchandise’; and a villein shall be amerced in the same way, saving his ‘waynage’.” Chapter 14 required that fines be proportionate both to the gravity of the offense and to the offender’s capacity to pay. According to historian William McKechnie, the provision was designed to ensure that “[i]n no case could the offender be pushed absolutely to the wall: his means of livelihood must be saved to him.”²

Magna Carta was confirmed by Parliament in 1225 and reconfirmed more than forty times between the thirteenth and fifteenth centuries.³ Its provisions concerning calculation of amercements were also repeated in the Statute of Westminster.⁴ The historical evidence suggests that in the centuries following adoption of Magna Carta, judicial officials took account of the defendant’s capacity to pay when assessing fines, both by moderating the size of the fine and by allowing payments in installments. This practice would avoid perpetual imprisonment for nonpayment and the total destruction of the defendant’s capacity to support himself.⁵

By the seventeenth century, many courts had ceased to honor Magna Carta’s restrictions on excessive fines. The U.S. Supreme Court observed that by the 1680s, “the use of fines ‘became even more excessive and partisan,’ and some opponents of the King were forced to remain in prison because they could not pay the huge monetary penalties that had been assessed.”⁶ In response to these abuses, the English Bill of Rights (1689) included a provision stating that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”⁷ Sir William Blackstone wrote that the prohibition of excessive fines restated the principle governing amercements in Magna Carta.⁸ A few months after the English Bill of Rights was adopted, the House of Lords ruled in the Earl of Devonshire’s case that a large fine imposed on the earl was excessive because it was both unprecedented for his offense and well beyond his capacity to pay.⁹

Even before the adoption of the English Bill of Rights, legal provisions in many American colonies included language mirroring Magna Carta’s prohibition of excessive amercements. There is evidence that this limitation was respected in at least some colonial courts.¹⁰

After independence, the vast majority of states adopted constitutions either explicitly or implicitly prohibiting excessive fines.¹¹ Several of these constitutions, instead of listing specific rights, contained a blanket statement protecting the constitutional or common-law rights previously given to British subjects. Both Chapter 14 of Magna Carta and the excessive fines clause in the English Bill of Rights were considered mere restatements of preexisting common-law rights and thus came within the scope of these provisions. George Mason included a prohibition of excessive fines in the Virginia Declaration of Rights of 1776.¹²

Adoption of the Eighth Amendment

The U.S. Constitution, as initially proposed, did not contain a bill of rights, although certain common-law rights were built into the document’s text. As a delegate to the Constitutional Convention, George Mason of Virginia refused to vote for the Constitution on the ground that it contained “no Declaration of Rights . . . . Nor are the people secured even in the enjoyment of the benefit of the common law. . . .”¹³

Mason’s concerns were taken up by the Anti-Federalists in the various state ratifying conventions. They repeatedly argued that because Congress was not obligated to respect rights established through the long usage of the common law, it might innovate in a manner destructive of individual liberty.

Protests such as these ultimately led Representative James Madison to propose a Bill of Rights in the First Congress designed primarily to protect longstanding common-law rights, including the prohibition of excessive fines.¹⁴ There is no meaningful recorded debate on this provision during the First Congress.¹⁵ The proposed amendment was passed by Congress and ratified by the states.

There was little to no litigation over the Eighth Amendment’s Excessive Fines Clause during the early years of the Republic. Litigation concerning state constitutional analogues, however, suggests that excessiveness was originally thought to include questions about both proportionality and the offender’s capacity to pay.¹⁶

Supreme Court Doctrine

The Supreme Court did not decide any cases under the Excessive Fines Clause until 1989, exactly two centuries after the Bill of Rights was proposed. The Court has also decided only five cases under the clause. The Court has not committed to an originalist approach to the clause, but these cases have relied on history more than Cruel and Unusual Punishments Clause cases have. (See Essay No. 186.)

The Court held in 1989 that the clause does not limit punitive damages in civil lawsuits between private parties.¹⁷ The Court noted that “at the time of the drafting and ratification of the [Eighth] Amendment, the word ‘fine’ was understood to mean a payment to a sovereign as punishment for some offense.”¹⁸ The purpose of the clause in both England and America was to prevent the government from abusing the power to impose fines as a way to ruin its perceived enemies. The clause would prevent the government from imposing a fine so large that the defendant could not pay it and then keeping him in prison until it was paid.¹⁹ Such dangers, the Court concluded, are not present in suits between private parties.²⁰

Alexander v. United States (1993) ruled that the Excessive Fines Clause limits criminal asset forfeiture.²¹ In such a proceeding, the government seeks to seize property that is connected to the commission of a crime. Such a forfeiture, the Court found, is “a form of monetary punishment no different, for Eighth Amendment purposes, from a traditional ‘fine.’”²² Austin v. United States (1993) held that the clause applies not only to criminal cases, but also to any civil monetary penalty exacted by the government that “can only be explained as serving in part to punish.”²³

United States v. Bajakajian (1998) provided a standard for determining whether a penalty violates the Excessive Fines Clause.²⁴ The Court reviewed the history of the excessive fines clauses in England and America and then borrowed the proportionality standard from its non-originalist cruel and unusual punishments jurisprudence. The Court held that a fine is excessive if it is “grossly disproportional to the gravity of a defendant’s offense.”²⁵ On one side of the ledger, it considered Bajakajian’s culpability and the harm threatened by his offense; on the other side, it considered the size of the forfeiture. Given this balance, the Court ruled that the fine was excessive.²⁶

Incorporation

Timbs v. Indiana (2019) held that the prohibition of excessive fines is deeply rooted in our country’s history and traditions and is thus applicable to the states by incorporation into the Due Process Clause of the Fourteenth Amendment.²⁷

Open Questions

• Austin v. United States (1993) held that civil in rem forfeitures are subject to the Excessive Fines Clause.²⁸ Did United States v. Bajakajian (1998) implicitly call this holding into question?²⁹
• As an originalist matter, does the Excessive Fines Clause contain any limit relating to the financial means of the defendant?³⁰
• Although the Supreme Court’s proportionality analysis in cases involving the Excessive Fines Clause is borrowed from non-originalist case law concerning the Cruel and Unusual Punishments Clause, can it be justified in light of evidence concerning the clause’s original meaning?

1. Magna Charta, 9 Hen. III, ch. 14 (1225), 1 Stat. at Large 6–7 (1762 ed.). ↩︎
2. William Sharp McKechnie, Magna Carta: A Commentary on the Great Charter of King John 287 (2d ed. 1914); Nicholas M. McLean, Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause, 40 Hastings Const. L.Q. 833, 855 (2013). ↩︎
3. 9 Hen. III, ch. 14 (1225), 1 Stat. at Large 6–7 (1762 ed.); Faith Thompson, Magna Carta: Its Role in the Making of the English Constitution, 1300–1629, 10 (1948). ↩︎
4. 3 Edw. 1, ch. 6 (1275). ↩︎
5. McLean, supra at 856. ↩︎
6. Browning–Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 267 (1989) (quoting L. Schwoerer, The Declaration of Rights, 1689, 91 (1981)); Trial of Thomas Pilkington, and others, for a Riot, 9 State Trials 187 (1683); Trial of Sir Samuel Barnardiston, 9 State Trials 1333 (1684)). ↩︎
7. 1 W. & M., ch. 2, sess. 2 (1689), https://perma.cc/F4VX-4229. ↩︎
8. 4 Blackstone 378. ↩︎
9. 11 State Trials 1353; McLean, supra at 861–62. ↩︎
10. McLean, supra at 865–67. ↩︎
11. Beth A. Colgan, Reviving the Excessive Fines Clause, 102 Calif. L. Rev. 277, 323 n.238 (2014). ↩︎
12. Va. Const. of 1776, § 9. ↩︎
13. 2 Farrand’s 637, 649. ↩︎
14. 1 Annals of Cong. 452 (1789); John F. Stinneford, The Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1808 (2008). ↩︎
15. 1 Annals of Cong. 782 (1789). ↩︎
16. McLean, supra at 870–71. ↩︎
17. 492 U.S. 257 (1989). ↩︎
18. Id. at 265. ↩︎
19. Id. at 267. ↩︎
20. Id. at 268. ↩︎
21. 509 U.S. 544, 558 (1993). ↩︎
22. Id. ↩︎
23. 509 U.S. 602, 610 (1993). ↩︎
24. 524 U.S. 321, 334 (1998). ↩︎
25. Id. at 334. ↩︎
26. Id. at 337–40. ↩︎
27. 586 U.S. 146 (2019). ↩︎
28. 509 U.S. 602, 610 (1993). ↩︎
29. 524 U.S. 321, 347 (1998) (Kennedy, J., dissenting). ↩︎
30. McLean, supra; Colgan, supra. ↩︎