Excessive Fines

The Heritage Guide to the Constitution

Excessive Fines

Amendment VIII

...nor excessive fines imposed...

The English Bill of Rights of 1689 also sought to undo the practice of the judges who, favoring the Stuarts, levied fines against the king’s enemies, thus allowing them to be jailed for nonpayment. At the time of the drafting of the Eighth Amendment, a majority of states included the prohibition of excessive fines in their constitutions, and the provision in the amendment induced no debate on the floor of Congress.

In United States v. Bajakajian (1998), the Supreme Court found little in the history of the clause to determine what would constitute an “excessive” fine. It declared that, within the context of judicial deference to the legislature’s power to set punishments, a fine would not offend the Eighth Amendment unless it were “grossly disproportional to the gravity of a defendant’s offense.”

Applying the standard, the Court, through Justice Clarence Thomas, found that a $357,144 civil forfeiture penalty for failing to report a currency transfer of more than ten thousand dollars was grossly disproportionate to the fine for conviction, which would have been only five thousand dollars. In dissent, Justice Anthony Kennedy found the scale of forfeiture quite common and would have deferred to Congress’s determination of the need for and the appropriateness of the forfeiture. But the “grossly disproportionate” standard has also led courts to permit substantial fines. See, e.g., United States v. Blackwell (2006) (upholding a fine of one million dollars for insider trading, in addition to seventy-two months’ imprisonment).

Although the Court had held in Austin v. United States (1993) that a civil forfeiture penalty was included within the protections of the Excessive Fines Clause, it had also declared that a punitive damage award in a purely civil case is not covered by the clause, holding that there must be “a payment to a sovereign as punishment for some offense” for the clause to apply. Browning-Ferris Industries v. Kelco Disposal, Inc. (1989). Thus, in Exxon Shipping Co. v. Baker (2008), the Court ruled that the Excessive Fines Clause does not constrain an award of money damages in a civil suit when the government has neither prosecuted the action nor has any right to receive a share of the damages awarded. The Court, in some highly contested decisions, now reviews punitive damage awards under the Due Process Clause of the Fourteenth Amendment. See, e.g., BMW of North America, Inc. v. Gore (1996).

In Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001), the Court determined that the Fourteenth Amendment’s Due Process Clause had essentially incorporated the Excessive Fines Clause and made it applicable to the states.

David F. Forte

Professor, Cleveland Marshall School of Law

Barry L. Johnson, Purging the Cruel and Unusual: The Autonomous Excessive Fines Clause and Desert-Based Constitutional Limits on Forfeiture after United States v. Bajakajian, 2000 U. ILL. L. REV. 461 (2000)

Calvin R. Massey, The Excessive Fines Clause and Punitive Damages: Some Lessons from History, 40 VAND. L. REV. 1233 (1987)

Brent Skorup, Ensuring Eighth Amendment Protection from Excessive Fines in Civil Asset Forfeiture Cases, 22 GEO. MASON U. C.R. L.J. 427 (2012)

Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257 (1989)

Austin v. United States, 509 U.S. 602 (1993)

BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996)

United States v. Bajakajian, 524 U.S. 321 (1998)

Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001)

United States v. Blackwell, 459 F.3d 739 (6th Cir. 2006)

Exxon Shipping Co. v. Baker, 554 U.S. 472 (2008)