A $95,000 Fine for Transporting a 6-Pack of Beer Defies the Eighth Amendment, a Supreme Court Brief Argues
The history of the Excessive Fines Clause shows why Alaska pilot Ken Jouppi should not lose his airplane simply because he helped a passenger defy a local alcohol ban.
Fourteen years ago, Ken Jouppi, who had operated a charter airplane business in Alaska since the 1970s, agreed to fly a passenger from Fairbanks to Beaver, one of the state's dry jurisdictions. The passenger's luggage included 72 cans of Budweiser and Bud Light, which she planned to share with her husband on his birthday. Although most of the beer was boxed, a six-pack "was packed only in a grocery bag and would have been in plain view to Jouppi as he was loading the airplane," the Alaska Supreme Court noted last year.
State troopers discovered the beer before the plane took off, and Jouppi was convicted of a misdemeanor. The trial court, which concluded that Jouppi had been "willfully blind" to the six-pack, sentenced him to three days in jail and a $1,500 fine. But state law mandated another punishment that was 63 times as severe: forfeiture of Jouppi's $95,000 airplane. Although that penalty seemed grossly disproportionate, the Alaska Supreme Court ruled that it did not violate the Eighth Amendment's ban on excessive fines.
In July, responding to a petition filed by the Institute for Justice, the U.S. Supreme Court agreed to review that decision. It will hear oral argument in Jouppi v. Alaska on December 1. In a brief supporting Jouppi's appeal that it filed last week, the Cato Institute argues that the Alaska Supreme Court erred by failing to consider the gravity of his conduct and the financial consequences of the forfeiture. Both of those factors, Cato attorney Matthew Cavedon says, have been central to the common-law understanding of excessive fines for eight centuries.
"The Eighth Amendment was designed to prevent this kind of abuse by limiting excessive fines," Cavedon writes. "Long before the United States was founded, the common law protected people from extreme monetary penalties. But the Alaska Supreme Court's view is that challenges to excessive fines 'should rarely succeed.' This dismissive view led it to conclude that there is nothing excessive about the forfeiture of an airplane worth 'only 9.5 times the maximum fine'—and over 60 times the fine actually imposed. The decision below cannot be reconciled with this Court's precedent or the Excessive Fines Clause's original meaning."
In weighing the proportionality of the airplane forfeiture, the Alaska Supreme Court thought the relevant consideration was the harm caused by excessive drinking. "Alcohol abuse in rural Alaska leads to increased crime; disorders, such as alcoholism; conditions, such as fetal alcohol spectrum disorder; and death, imposing substantial costs on public health and the administration of justice," Justice Jude Pate wrote in the majority opinion. "Within this context, it is clear that the illegal importation of even a six-pack of beer causes grave societal harm."
That assessment defies logic: For all we know, consumption of those six cans would have caused no measurable problem at all, let alone "grave societal harm." And in conflating Jouppi's actual conduct with a much broader phenomenon, Cavedon says, Pate and his colleagues ignored a principle that has long informed the concept of excessive fines.
Back in 1215, the Magna Carta took aim at disproportionate financial penalties imposed by King John. "For a trivial offence," it said, according to a translation from the National Archives, "a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood." That promise "was not consistently enforced, and excessive fines were regularly imposed during the reign of the Stuart kings, who 'were criticized for using large fines to raise revenue,'" Cavedon notes. "The English Bill of Rights of 1689 responded to this oppression," again condemning "excessive fines," along with "cruel and unusual punishments."
As reflected in William Blackstone's Commentaries on the Laws of England, judges "understood proportionality to involve an inquiry 'far broader than just that between the punishment and severity of the offense,'" Cavedon writes, citing a 2014 California Law Review article by UCLA law professor Beth Colgan. "Early American courts agreed, holding that fines should be proportioned 'to the offense committed, the situation, circumstances, and character of the offender.' Only ignoring this history allows courts to routinely impose excessive fines—as happened in this case. By focusing on 'grave societal harms' rather than individual culpability, Alaska endorsed a fine that is undoubtedly excessive by common law standards."
State constitutions reflected that tradition, and so did the Eighth Amendment, the language of which copied the Virginia Declaration of Rights. In applying the latter provision, Cavedon notes, courts have asked "whether the punitive fine is proportional to the gravity of the person's actions" and, if so, "whether the punitive fine is proportional to the person's ability to pay it without depleting the ability to care for oneself or loved ones." The Virginia legislature "ultimately codified this two-step approach," which Cavedon urges the Supreme Court to adopt.
The Supreme Court's 1998 decision in United States v. Bajakajian acknowledged the relevance of individual culpability. In that case, Hosep Bajakajian was convicted of failing to report the cash he planned to carry on a flight from Los Angeles to Cyprus by way of Italy, and the penalty included forfeiture of the entire sum: $357,144. That was an excessive fine, Justice Clarence Thomas concluded in the majority opinion.
Bajakajian's offense "was unrelated to any other illegal activities," Thomas noted. Bajakajian was "not a money launderer, a drug trafficker, or a tax evader." Rather, "the money was the proceeds of legal activity and was to be used to repay a lawful debt." The maximum penalty under federal sentencing guidelines was six months in jail and a $5,000 fine, which confirmed "a minimal level of culpability."
The harm Bajakajian caused "was also minimal," since it "affected only one party, the Government, and in a relatively minor way," Thomas said. "There was no fraud on the United States, and respondent caused no loss to the public fisc. Had his crime gone undetected, the Government would have been deprived only of the information that $357,144 had left the country."
Jouppi, an 83-year-old Air Force veteran, likewise had no prior criminal record and did not do anything that would justify a $95,000 fine, which "bears little to no resemblance" to his "individual culpability," Cavedon says. The Alaska Supreme Court "attempts to justify" that penalty "based on harm unrelated to his own offense." But that contradicts the tradition that Colgan describes: "Early Americans had an expansive understanding of relevant factors when it came to the fair imposition of fines," including "the amount of harm caused."
The Alaska Supreme Court also should have considered the forfeiture's impact on Jouppi's livelihood, Cavedon argues. "Although this Court has never directly held that
economic circumstances are a necessary part of the Excessive Fines Clause standard, it has recognized that this factor has been a part of the calculation since Magna Carta," he writes. "In Bajakajian, the Court clearly acknowledged that the historical underpinning of the Clause included a prohibition against a fine that was so large that it deprived a defendant of 'his livelihood.'"
The Supreme Court did not consider how forfeiture of $357,144 would affect Bajakajian's livelihood because he "had not raised that issue below and the district court made no factual findings as to it," Cavedon notes. In any event, "the Court had already found that the petitioner's fine was excessive in relation to the offense, so the individualized economic impact analysis was unnecessary." The decision therefore should not be read as foreclosing such an analysis in Jouppi's case, Cavedon says.
The brief quotes Thomas' concurring opinion in the 2019 case Timbs v. Indiana, which extended the Excessive Fines Clause to the states. "To conduct a proportionality analysis at all," Thomas wrote, "we need to consider the punishment's magnitude. And the owner's economic means—relative to the [forfeited] property's value—is an appropriate consideration for determining that magnitude. To hold the opposite would generate a new fiction: that taking away the same piece of property from a billionaire and from someone who owns nothing else punishes each person equally."
That case involved civil asset forfeiture, which the Supreme Court had previously said is constrained by the Excessive Fines Clause. Cavedon argues that the profit motive created by civil forfeiture, which typically supplements the budgets of law enforcement agencies, underlines the need for the Supreme Court's guidance regarding the factors that should figure in determining when a fine is excessive.
"Unlike other forms of punishment, civil forfeiture is 'punitive for those whose property is confiscated' and 'profitable for the government,'" Cavedon says, quoting Timbs. "This creates a perverse incentive for law enforcement to target crimes they know will result in forfeiture—one left unchecked in the absence of Eighth Amendment safeguards." Given that situation, he concludes, "rejecting the abstract excessiveness standard applied below, and setting out the common-law one that should govern in its place, will help protect Americans' vehicles, homes, and money."
