"What Is An Excessive Fine? Seven Questions to Ask After Timbs"

The title of this post is the title of this new paper authored by Wesley Hottot now available via SSRN.  Here is its abstract:

This Article explains how Timbs v. Indiana does more than hold that the Eighth Amendment’s Excessive Fines Clause applies to state and local authorities.  Timbs also gives definition to those “excessive fines” the Constitution guarantees “shall not be . . . imposed.”

This definition emerges when Timbs is read alongside three other decisions: (1) Austin v. United States — the Supreme Court’s decision holding that forfeitures are “fines” within the meaning of the Excessive Fines Clause; (2) United States v. Bajakajian — the only other case in which the Supreme Court has applied the Excessive Fines Clause; and (3) the Indiana Supreme Court’s decision on remand in Timbs, which surveys all available case law and adopts a helpful framework for determining excessiveness.  Timbs, Austin, and Bajakajian, when combined with examples from federal circuit courts and state high courts, represent a cogent standard for excessiveness.  This emerging standard can be summarized using the familiar “five W’s (and one H).”

There are seven salient questions: Who committed what offense; when and where; what property is the government taking; how was that particular property involved in the offense; and why does the government want it?  By answering these questions based on all the evidence, courts can determine whether a fine or forfeiture is excessive.

Like the five Ws, the seven questions of excessiveness are open-ended by design.  The meaning of “excessive fine” has been open ended and fact-specific for a long time.  The Eighth Amendment’s standard can be traced through centuries of Anglo-American law.  Yet, the standard has never been reduced to strict factors, rigid formulae, or balancing tests. Instead, the “fundamental” and “deeply rooted” right against excessive economic sanctions requires courts to focus on all the circumstances of a particular offense and particular offender.  Each case is viewed holistically, considering what punishments are available, those already imposed, the effect that additional economic penalties will have on the offender and her community, the government’s motivations, examples in case law, and the historical purposes of the protection against excessive fines.  The rich history of that protection, as Timbs makes clear, is key to understanding the meaning of both the Excessive Fines Clause and the Fourteenth Amendment that makes it applicable to state and local government (like virtually all Bill of Rights protections).

Each of the seven questions is explained with reference to the excessiveness standard announced on remand in Timbs, relevant Supreme Court decisions, and examples from lower courts shedding additional light.  The result is an Eighth Amendment excessiveness standard with contours and shape but little in the way of firm boundaries.  Others have proposed a balancing test; this Article proposes an open-ended inquiry that should be allowed to develop on a case-by-case basis.  Put differently, I regard the indeterminate nature of the excessiveness inquiry as a feature, not a bug, of constitutional design.