The Excessive Fines Clause is one of three separate protections in the Eighth Amendment to the U.S. Constitution. As attorney Sam Gedge explained, the Eighth Amendment contains the protection against cruel and unusual punishments, the right to be free from excessive bail, and the right to be free from excessive fines — that is, protection against the government imposing disproportionate, crippling economic sanctions. It was this final provision that came into focus in the case of Tyson Timbs Awaiting the Verdict in Timbs v. Indiana (2018).
Historical background
The Excessive Fines Clause has a rich history. Bob Zadek traced it to the Magna Carta, where much of the common law and many traditions of liberty originate, and argued that the Founders considered it as fundamental as rights can be. If any government can levy excessive fines, he said, it can destroy a person through excessive fines short of imprisonment — it can do equal harm with property as with the body.
Bill Maurer, an attorney at the Institute for Justice, offered a similar account. He said the clause is based on a restriction in English law dating back to Henry I in the year 1000 or 1100, and that the idea behind it is that government is not supposed to use fines to drive somebody absolutely into the ground. The problem in England, he explained, was that the king was using fines to strip people of everything they owned. The restriction appears in Magna Carta, came into the English Bill of Rights, and was carried into American state and federal constitutions by the founders Abusive Fines and Fees (2022).
Timbs v. Indiana
The case that brought the clause to national attention involved Tyson Timbs, whose $42,000 vehicle was seized by police after his arrest. Gedge recounted that the trial court held that taking Timbs’s most valuable piece of property was so disproportionate to his criminal offense that it was an excessive fine violating the Eighth Amendment’s Excessive Fines Clause. The intermediate court in Indiana agreed. But the Indiana Supreme Court took what Gedge called a really breathtaking position: it said it did not care whether taking Timbs’s car would be an excessive fine under the Eighth Amendment, because the U.S. Supreme Court had never actually told the states that the clause applies to them at all Awaiting the Verdict in Timbs v. Indiana (2018).
Gedge noted that Indiana was not alone in that view. Montana took a similar view, Mississippi took a similar view, and courts in Michigan had gone down that road too. The Indiana Supreme Court’s decision, he said, put into sharp relief a burgeoning split in state and federal courts over whether state and local authorities can excessively sanction people economically under the Eighth Amendment.
The constitutional question turned on the doctrine of incorporation. Zadek explained that the Bill of Rights originally limited only the federal government, and it was not intended to apply to the states when drafted. The Fourteenth Amendment, one of the Civil War amendments, applied the Bill of Rights to the states, but the Supreme Court has decided on a right-by-right basis which specific rights are incorporated. Gedge described this as the “selective incorporation” process — a right-by-right examination of the first eight amendments to determine whether each right is so fundamental to the legal tradition and Anglo-American heritage that it is incorporated into the Fourteenth Amendment and applies to state and local authorities as well.
At the Supreme Court, Gedge said, the case drew about 18 or 19 amicus briefs from an ideologically breathtaking spectrum of groups, including the NAACP, the Southern Poverty Law Center, the Cato Institute, the U.S. Chamber of Commerce, and the ACLU. The oral argument was held on November 28. Gedge’s co-counsel Wesley Hottot argued the case, and Gedge characterized the request as asking the Court to engage in a bit of constitutional housekeeping — an incremental but important step to confirm that the clause applies to the states. He said the justices seemed skeptical of Indiana’s position that the clause does not apply to the states or at least places no constraint on state police and prosecutors forfeiting property Awaiting the Verdict in Timbs v. Indiana (2018).
The 2019 ruling and its aftermath
Maurer, whose Institute for Justice litigated the case, said that in 2019 the Supreme Court held nine to nothing that the Excessive Fines Clause does apply against state and local governments. He noted that prior to the late 1980s there had been only eight Excessive Fines Clause cases at the Supreme Court, and that the clause had been one of the more underutilized aspects of the Bill of Rights. After the ruling, he said, the standards courts were supposed to apply to determine whether a fine was excessive were unclear and oftentimes contradictory, and the Institute for Justice is now going from state to state trying to establish very aggressive protections for Americans against excessive fines Abusive Fines and Fees (2022).
Due process and other tools
Maurer described the Due Process Clause as another tool used against abusive fines and fees. Where the police, the prosecutor, and the judge all have a financial interest in the outcome of a case, he said, that is a tainted system: whether a person is guilty or not, they have not received due process but something that looks like process, with the outcome foreordained. He also described using the media as a tool outside the courtroom, noting that no city council member wants to see their name in the New York Times or the Washington Post talking about how they are abusing their citizens. The Institute for Justice, he said, litigates in court and in the court of public opinion to educate people that this can happen to them and that there are ways to fight back Abusive Fines and Fees (2022).
Across episodes
The topic appears in the 2018 episode previewing Timbs v. Indiana and in the 2022 episode on abusive fines and fees. The earlier treatment, with Gedge, is framed around an undecided case and the incorporation question; the later treatment, with Maurer, treats the 2019 ruling as settled and shifts to the unresolved standards for determining excessiveness and to state-by-state litigation. The excerpts show development from argument to aftermath, with different guests advancing each stage.
What the sources do not cover
The excerpts do not state the outcome of any particular forfeiture proceeding against Tyson Timbs beyond the Supreme Court’s incorporation holding, nor do they describe the specific standards the Court or lower courts have adopted for measuring excessiveness. The excerpts do not name the Indiana civil forfeiture statute, the specific offense that led to Timbs’s arrest, or the state of any city mentioned. They also do not cover how the 2019 decision has been applied in subsequent cases beyond Maurer’s general statement about going state to state.