Most of the fundamental constitutional protections contained in the Bill of Rights, initially aimed at restraining abuses by the federal government, have been applied to states and localities via the post-Civil War 14th Amendment’s due process clause, which was interpreted as “incorporating” these rights. But not every provision of the Bill of Rights has been considered sufficiently fundamental as to merit incorporation. Until today, that was true of the Eighth Amendment’s prohibition against “excessive fines” (attached to the better-known language prohibiting “excessive bail” and “cruel and unusual punishment”).
In an Indiana case involving the seizure of an SUV owned by a low-level drug dealer, the Supreme Court unanimously decided the “excessive fines” prohibition does indeed apply to states and localities via the 14th Amendment. It was the first opinion written (and orally summarized) by Justice Ruth Bader Ginsburg following her return to the Court after multiple health issues. It’s likely, though not yet certain, that the drug dealer in question will get to keep his SUV; the case will return to a state court that will determine if the asset forfeiture levied on him was “excessive.” But the decision could open up a whole new world of federal litigation involving an array of state and local fines, fees, asset seizures, and other questionable revenue measures.
Ginsburg traces concerns over excessive fines all the way back to the Magna Carta, and concludes:
[T]he protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago … Even absent a political motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,” while other forms of punishment “cost a State money.”
Reliance on fines by state and local governments has grown alongside resistance to taxes, and they tend to be even more regressive than taxes. According to one estimate, there are currently 10 million people owing $50 billion in “fines, fees and forfeitures.” This is an issue that has energized both progressive and conservative civil libertarians, and the decision will likely receive widespread applause (outside the ranks of state and local governments, that is).
Justices Neil Gorsuch and Clarence Thomas, who distrust decisions made on “due process” grounds, wrote concurring opinions based on a different clause in the 14th Amendment. But there was no disagreement on the outcome, or the consequences.
