Does the Excessive Fines Clause Apply to the States?

You'd think we'd know that by now -- but the Supreme Court hasn't spoken to this. Now an Institute for Justice petition asks the Court to consider the issue, and my students and I have just filed an amicus brief (on behalf of many professors) supporting the petition.


The Bill of Rights, as ratified in 1791, was generally understood as applying only to the federal government. (It begins with "Congress shall …," and while that's in the First Amendment, the other amendments were also generally seen as limited to the federal government; indeed, the First Congress rejected Madison's proposal to include some limited restrictions on states.) The Fourteenth Amendment does limit state government, and thus also local governments; but ever since it was enacted, there has been a controversy about whether it "incorporates" the Bill of Rights against the states. The Court initially said no, then slowly started saying yes to particular provisions (a process called "selective incorporation"). Most recently, in McDonald v. City of Chicago, the Court held that the Second Amendment applies to the states. Thus, right now,

  • all the Bill of Rights provisions in the first eight Amendments are incorporated against the states,
  • except three provisions that the Court has expressly said are not incorporated—the Fifth Amendment's Grand Jury Clause, the requirement of jury unanimity that has been read into the Sixth Amendment's Criminal Jury Clause, and the Seventh Amendment, which provides for civil juries —
  • and two provisions on which the Court hasn't spoken: the Third Amendment, which limits the quartering of soldiers in people's homes, and the Eighth Amendment's Excessive Fines Clause.

The Institute for Justice (one of the public interest law firms that I most respect) has filed a petition asking the Court to decide whether the Excessive Fines Clause is incorporated; the petition reports that two federal circuit courts and at least 14 state high courts say it is, and 3 state high courts and one intermediate court says it isn't. Such a split among lower courts is generally seen as a powerful reason for the U.S. Supreme Court to step in and resolve the matter.

My Scott & Cyan Banister Amicus Brief Clinic students Tyler Hastings, Karen Leung, and Brigid Mahoney and I have just filed an amicus brief supporting the petition, on behalf of my colleague Beth Colgan—one of the top Excessive Fines Clause scholars in the country—and 16 other professors: Chiraag Bains, Kevin Bennardo, Bruce L. Benson, Eric Blumenson, Peter B. Edelman, Frank R. Edwards, Alexes Harris, Wesley G. Jennings, Wayne A. Logan, Cortney E. Lollar, Karin D. Martin, Mitali Nagrecha, Mary Pattillo, Alex R. Piquero, Bryan L. Sykes, and Ronald F. Wright. (The Clinic usually specializes in the First Amendment and related statutes, but this is a rare exception: a case too interesting to pass up.)

The brief deliberately doesn't talk about the split, or the precedents supporting incorporation of the Clause; the IJ petition does an excellent job of that. Instead, it tries to explain why the Clause is practically important to the everyday lives of a vast number of Americans, since the importance of the constitutional question is itself one reason for the Court to agree to hear the case (see Sup. Ct. R. 10(c)).

Here is the meat of the brief, though with most footnotes omitted (you can see them in the PDF version). Recall, of course, that we were the lawyers for the signatories, and the views that the brief expresses are the signatories' and not necessarily the drafters'.

[* * *]

Summary of Argument

State and local governments have been levying greater and greater fines and relying heavily on forfeitures in recent years, often at the expense of people who can least afford to pay. Fines and forfeitures are punishments, but they can also make money for cities and states, which gives governments an incentive to increase these punishments to excessive levels.

The Framers recognized this danger, and included the Excessive Fines Clause in the Bill of Rights to prevent such abuses. But, partly because the Clause has not yet been incorporated against the states, many states and cities are indeed levying excessive fines and forfeitures.

Some fine the poor more often and in greater amounts, and throw those who cannot pay into what has been described as modern-day debtor's prisons. Forfeiture practices also hit financially vulnerable communities particularly hard. And because this is a financially profitable enterprise, it is often also politically profitable: many who bear the brunt of fines and forfeitures lack the political power to resist them. The government knows this, and also knows that raising broadly applicable taxes instead of raising revenue from fines and forfeitures would likely spur a political backlash.

But the right to be free from excessive fines and forfeitures[1] is a basic right of all Americans, recognized by the Framers as no less important than its Eighth Amendment siblings, the right to be free from cruel and unusual punishments and from excessive bail (as well as other fundamental rights, such as those secured by the First and Second Amendments). The Excessive Fines Clause and the protection against excessive fines should be recognized as a right secured by the federal Constitution against state transgressions, and as a bulwark against the states' financial and political incentives to increase fines and forfeitures more and more.


I. This case merits the Court's attention because unmanageable fines sharply affect the lives of many Americans

A. Excessive fines particularly harm poor Americans

Fines are the most common form of punishment used by local, state, and federal governments. And their effect is not just broad but deep: they can drive poor Americans into a vicious cycle of growing economic disaster.

A fine that would be bearable (even if constitutionally excessive) to many of us may well be beyond a poor person's ability to pay. People's failure to pay promptly may lead to still greater fees and surcharges, and can harm their credit, which can make it harder for them to find stable housing and employment. The accumulated fees may also lead to jail time for failure to pay, or other penalties such as the loss of a driver's license—which may in turn cost people their jobs, particularly in rural or other areas with limited or no access to public transportation. All this makes it even harder for them to pay their ever-growing debt, a debt that began with the original fine but that continues to climb indefinitely.

Indeed, much of the burden stemming from fines is generally borne by the poorest citizens, who often accrue "poverty penalties" that may sharply exceed the monetary value of the original fine: late fees, interest fees, or administrative fees such as fees for entering into a payment plan. Such poverty penalties are traps—easily stepped over by the majority of citizens who are able to pay, but serious obstacles with real consequences for those who are not. In some cases, debtors have been forced to choose between "basic necessities such as food, hygiene, and housing on the one hand, and making payments against their economic sanctions on the other." In others, debtors are simply unable to pay the fines at all. And these problems also disproportionately affect black and Hispanic communities, as well as the poor of all races.

The various fines, surcharges, fees, and costs that the government may impose in a given case can effectively stack up on each other, exacerbating what was already unmanageable debt. For Harriet Cleveland of Alabama, for example, the stacking of sanctions meant that, despite sustained efforts to pay, she could never overcome the debt imposed by a court for driving without insurance or a license.

The court sentenced her to pay a fine and court costs, and placed her on private probation with a $40 per month supervision fee.[2] Unable to find regular employment, Ms. Cleveland did what she could to pay—including turning her entire income-tax rebate over to the probation company, taking out a title loan on her car, "rent[ing] an empty room in her home to an elderly stranger with dementia," "sift[ing] through neighbors' trash for soda cans to cash in at the scrap yard," and even stealing $50 from her son's backpack and scrap metal from abandoned homes—but her debt still jumped from a few hundred dollars to $4,713 in four years. When the probation company turned her file back over to the state, the state tacked on even more administrative fees and surcharges. Like so many others, Ms. Cleveland had no meaningful ability to extricate herself from this punishment.

Indeed, some states systematically target poor people with fines. ArchCity Defenders, a nonprofit legal aid organization based in St. Louis, Missouri, found that local governments in Ferguson and other municipalities were operating

on the backs of their poorest and most politically vulnerable citizens. The municipalities appeared to be targeting low-income and black communities with these practices. For example, fines were collected at rates more than fifteen times higher in one low-income, majority-black community than in a more affluent neighboring municipality. Ferguson was among the three worst offenders.

Nor are states necessarily deterred by the difficulty of collecting fines (however multiplied through late fees) from the poor: the threat of jail time can often be used to collect the money "from the families and friends of those arrested who wished to save their loved ones from languishing in jail."[3] (You can't get blood from a stone, but maybe from the stone's friends.) And because poor citizens are less likely to vote, and to have access to other forms of political power, governments may find it easier to target fines against them. Meanwhile, as Ms. Cleveland discovered, politically influential private entities play a role in the money-making enterprise, stacking the deck further against the likelihood of meaningful resistance being brought to bear outside the courts.

Were the federal government to engage in such schemes to raise revenue through excessive fines, the Excessive Fines Clause would bar fines that are "gross[ly] disproportionat[e]" to the severity of the offense. United States v. Bajakajian, 524 U.S. 321 (1998). But when fines are imposed by those states whose courts have refused to incorporate the Clause—or by the many cities or counties within those states—no federal constitutional protection is available.

B. Excessive fines often lead to losses of licenses and other benefits, and to destroyed credit

Excessive, unaffordable fines often lead to the loss of government benefits such as housing assistance, supplemental security payments, and food stamps. Failing to pay fines can also lead to the government revoking one's driver's license. That in turn makes it harder for a person to get to work, to keep a job, and thus to earn money to pay the fines—which will then end up snowballing because of the failure to promptly pay. Nonpayment of criminal debt may also result in the denial of occupational licenses, likewise making it harder to get or keep a job. And ongoing criminal debt can also destroy a debtor's credit, making it difficult to secure stable employment or housing. As the Washington Supreme Court explained,

The court's long-term involvement in [debtor's] lives [during collections] inhibits reentry: legal or background checks will show an active record in superior court for individuals who have not fully paid their [criminal debt]. . . . This active record can have serious negative consequences on employment, on housing, and on finances. [Criminal] debt also impacts credit ratings, making it more difficult to find secure housing.

Excessive fines thus put financially vulnerable people into increasingly precarious circumstances. For many, their criminal debts can be effectively perpetual even for minor offenses.

C. Unmanageable fines often especially burden juvenile offenders

Unmanageable fines particularly harm poor youth and their families. They are assessed poverty penalties just as adults are, but usually lack the resources to pay them; the practical cost is thus often borne by their parents, who are often already burdened with all the expenses of parenthood. Such sanctions thus "cause families difficulty 'surviving on a day to day basis,'" sometimes forcing them to choose between buying groceries and paying their fines. And excessive fines on juveniles may also have spillover effects on the juveniles' siblings. Forced to pay off one child's court fines, families may not have enough money for their other children's school clothes or college tuition.

Excessive fines also appear to increase adolescent recidivism. A recent study found that imposing restitution, imposing higher economic sanctions, and continuing debt even when a case is closed "all significantly increased the odds of a youth recidivating. . . . even after controlling for relevant youth demographics and case characteristics variables." Often, juveniles who fail to pay fines may be jailed, have their driver's license revoked, or be prevented from expunging their records. This traps them in the juvenile justice system, with little hope of getting out.

The lingering effects of failing to pay juvenile fines, which include criminal contempt, probation violations, or additional fees, may even follow the juveniles into adulthood in the form of property liens, ineligibility for expungement, and destroyed credit. And black and Hispanic youth and their families also appear to be disproportionately hurt by the juvenile system's fines. Even when the rate of juvenile crimes is similar among minority youth and white youth, minority youth are more likely than white youth to still owe money at the closure of their case.

II. Like fines, forfeitures are ubiquitous and can be financially devastating

Forfeiture practices are widespread throughout the country—and financially lucrative. Many such seizures come out of "civil asset forfeiture" programs, in which the government secures a forfeiture without first obtaining a conviction, and at times without ever having filed criminal charges. The drive to use forfeiture to raise revenue may incentivize policing of offenses where seizures of cash or property are most likely, to the detriment of policing violent crimes. While this may include seizures of high value items such as family homes, and automobiles, in some jurisdictions police are even seizing small amounts of cash during police encounters.

Like fines, forfeitures can be financially devastating. Forfeiture practices often "target the poor and other groups least able to defend their interests in forfeiture proceedings." A forfeiture may deprive people of cash they need for basic necessities, a vehicle used for transport to work or school, or even the roof over their and their family's heads.

III. Incorporation is necessary because states have strong financial incentives to raise revenue by levying excessive fines and forfeitures

Sovereigns are always thirsty for money, and fines and forfeitures are often an easy way to get this money. Fines and forfeitures are thus especially likely to be abused—which is why the forerunner of the Excessive Fines Clause in Anglo-American law dates back to Magna Carta.[4]

Today, the system of targeting the poor with fines and then imposing "poverty penalties" generates huge sums for states and localities, as do forfeitures. They operate as regressive taxes—where those with the least ability to pay end up paying the most.

And these practices are especially politically appealing because they reduce taxes for the wider population, while burdening those who are least likely to push back. The poor, who are most effected by excessive fines and forfeitures, are also among the least likely to vote. They are less likely to acquire political power in other ways, such as through contributing to political campaigns. They are less likely to have friends in high places. And people with a criminal record may often be unable to regain their voting rights if they fail to pay their criminal debts. Laws in thirty-four states allow for continued disenfranchisement due to outstanding criminal debt regardless of whether the would-be voter has any meaningful ability to pay.

Given this political reality, it is not surprising that fines and forfeitures are increasing: For example, Arizona originally imposed an extra 57% felony surcharge based on the combined total of other economic sanctions. In 2012, that surcharge rose to 83%. Similarly, in the past ten years the Department of Justice's asset forfeiture program has involved seizures of money and property totaling over $28 billion—and this excludes forfeitures obtained through local or state proceedings.

And just as state legislatures have an incentive to create laws that lead to excessive fines and forfeitures, state courts have an incentive not to police them. Indeed, fines often fund the courts themselves. Particularly in budget-strapped times, some governments become dependent on revenue from economic sanctions. One report noted that the "Nevada Supreme Court recently went broke because revenue from traffic tickets plummeted, and the city of San Jose, California, lamented the drop in traffic violation revenue." An Oklahoma County District Judge was recently quoted as saying, "Today, we fund probably 90 percent or more of the operation of the courts actually out of the money that the court collects."

Similarly, prosecutors and law enforcement often directly receive forfeiture funds, and this often leads to distorted priorities. For example, earlier this year a bill was filed in Alabama's legislature that would require a conviction prior to forfeiture and that would place revenue from forfeitures in the state's general fund. In response, the presidents of the Alabama District Attorneys Association and Alabama Sheriffs Association publicly stated that, if the bill was passed, prosecutors would file criminal charges in nonviolent and drug-offense cases against people who they otherwise would have believed better served by diversion programs, and law enforcement would stop policing drug and property crimes. Without receiving forfeiture funds, the groups reasoned, "[w]hat incentive would local police and sheriffs have to invest manpower, resources and time in these operations?"

Recognizing the Excessive Fines Clause as limiting state and local action would not cure all these ills. It would only limit excessive fines and forfeitures, which this Court has defined as limited to those that are "gross[ly] disproportionat[e]." Bajakajian, 524 U.S. at 336-37. It would leave governments free to impose serious fines that are not excessive. Understandably, such fines and forfeitures may deliberately cause considerable economic pain, so as to deter and punish misconduct.

But incorporating the Clause would at least require state courts to police the outer boundaries of fines as a matter of federal right—and to recognize that state and local governments' growing appetite for raising money through fines must be subject to some constitutional constraint.


Anglo-American law has long recognized the wrongness of excessive fines and forfeitures, from 1215 to 1689 to 1791. That right is as important as the others that the Bill of Rights protects.

Indeed, for the poor, the right is especially important, because excessive fines and forfeitures can impose harsh burdens on poor defendants, burdens that have effects lasting for years. And revenue from fines and forfeitures tempts governments to constantly increase them, and state courts to neglect scrutinizing them. This Court should grant certiorari and decide whether the Excessive Fines Clause should be enforced against state and local governments—as are the other clauses of the Eighth Amendment, and the great majority of the other parts of the Bill of Rights.

[1] The Court has previously held that forfeitures constitute fines for the purposes of the Excessive Fines Clause. See Austin v. United States, 509 U.S. 602 (1993) (civil forfeitures); Alexander v. United States, 509 U.S. 544 (1993) (criminal forfeitures).

[2] The government benefits financially when partnering with private probation and collections companies, both through collecting more money and because privatization relieves the government of the need to expend tax dollars for privatized services.

[3] Such jailing of people who are unable (rather than unwilling) to pay may be separately unconstitutional under Bearden v. Georgia, 461 U.S. 660 (1983); but if courts are barred from imposing excessive fines in the first place, that would yield much less occasion for such unconstitutional jailing.

[4] The Clause was taken almost verbatim from Virginia's excessive fines clause, which was borrowed from the English Bill of Rights, which in turn dates back to Magna Carta. Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 266-68 (1989). Before Magna Carta, the King often imposed excessive fines on his subjects or political enemies to raise revenue. But under Magna Carta, the King was specifically limited in using fines as a source of royal revenue or as a weapon against his enemies. Furthermore, provisions in Magna Carta explicitly stated that defendants' lives and their ability to maintain a livelihood should not be ruined by fines, and prohibited fines that bankrupted defendants.

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  1. None of these reasons are actual reasons.

    For instance, why does “Excessive fines particularly harm poor Americans” matter for a Constitutional right?

    Rights exist for all, not just poor people.

    The sole reason why the Excessive fines Clause should be incorporated is that it makes no logical or textual sense for it to be treated differently.

    [ok, the real reason is that “incorporation” is just an extra-constitutional power grab by the courts with no basis at all in the Constitution. But that ship sailed a long time ago.]

    1. “why does “Excessive fines particularly harm poor Americans” matter for a Constitutional right?”

      “Excessive” does the work to answer your question.

      1. No, “excessive” means an objective standard.

        A $50 fine may be too much for a homeless person to pay but its not “excessive” for 99% of the population so should not be “excessive” as a matter of law.

        1. Well, that is a complicated question. Beth Colgan in fact argued that the prohibition on excessive fines has long been understood as focusing on fines that are excessive given the particular defendant’s resources; her article goes into all the evidence, but if you want just one piece of evidence — and I realize that it by itself is only suggestive, not dispositive — consider the passage from Magna Carta that formed the basis for the excessive fines clause of the English Bill of Rights, which in turn led to the clause in the Virginia Bill of Rights, which in turn made its way into the U.S. Bill of Rights: “For a trivial offence, 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.”

    2. Even if it’s not a reason why the clause should be incorporated, it’s a reason why the Court should hear the petition.

  2. Prof. Volokh, I recall that you wrote that the excessive six figure fine imposed upon the Oregon baker by the Oregon Court of Appeals was okay.

    1. The $135,000 award in the Oregon case consisted of civil compensatory damages for emotional distress; and the Supreme Court has taken the view that the Excessive Fines Clause doesn’t apply to such civil damages. Indeed, it so held (in Browning-Ferris Industries v. Kelco Disposal (1989)) even as to punitive damages; that would be even more clear as to compensatory damages, including emotional distress damages. One can debate whether or not this is right, but under current law, such awards just aren’t an Excessive Fines Clause matter.

  3. This appears to be fine work for a libertarian cause.

  4. “The Court initially said no, then slowly started saying yes to particular provisions”

    That’s a delicate way of saying, “The Court originally ruled in bad faith to render the 14th amendment moot, and then started gradually and half-heartedly undoing the damage nearly a century later.”

  5. Slow down, cowboys, what’s next, grand juries?

  6. A lot of this is “World end; women and minorities hardest hit.” It saddened me that the drafters believe this approach to be the most effective; it saddens me more they may be right.

    How about “states cannot impose excessive fines BECAUSE THEY ARE EXCESSIVE.”

    “Power over a man’s subsistence amounts to a power over his will.” ? Alexander Hamilton

    “The power to tax is the power to destroy.” ? Daniel Webster

    1. When you are focusing on demonstrating the harm, rather than arguing the merits, why wouldn’t you focus on those that are most harmed? This isn’t a merits brief, it’s an amicus brief supporting a cert petition.

  7. 14A has been used to incorporate the BOR against the states – 14a specifically uses the phrase “All laws”
    The Mcdonald case has a lot of good discussion on incorporation –

    We could use Stevens argument articulated in his Mcdonald dissent to argue that the Courts are free to pick and choose which Rights to incorporate under the theory that some rights are fundamental and some rights are not fundamental.

    We could use the theory espoused by Thomas in the footnote of his concurring McDonald opinion that the BOR were incorporated at incorporation, or Thomas belief that the BoR are incorporated under the P&I clause.

    1. I think the evidence (while not definitive) points toward the P&I clause incorporation theory.

      1. Indeed. It appears to me based on Congressional debate, and the structure of the amendment, that amendments 1-8 were to be incorporated via P&I, along with some rights laid out in the body of the Constitution.

        The problem was that the Slaughterhouse Court set out to render the 14th amendment a nullity.

        The more recent problem is that the Court, rather than acknowledge its earlier perfidy, tried to patch over the Slaughterhouse cases, rather than just overturn them. Thus the incorporation that was supposed to happen via P&I has been accomplished by this invented “substantive due process”. Which warps the 14th’s meaning, because P&I are explicitly restricted to citizens, while everybody within the US is entitled to due process. So the rights got extended to a larger set of people than the amendment specified.

        The other recent problem is that the Court didn’t incorporate wholesale amendments 1-8, as was the intent of the 14th amendment. Instead it has been ‘ordering ala carte’, incorporating the amendments it likes, leaving the ones it doesn’t treasure unincorporated.

        There’s no textual basis for this, the judiciary is just being arbitrary.

        1. There’s no textual basis for any “incorporation”. Use of P & I is just post hoc search for a reason.

          Nothing in the 14th Amendment can be read to excise “Congress” from the text of the 1A.

          1. A bill of rights seems like a good place to look for the start of a list of privileges and immunities which “belong as of right to the citizens of all free governments.”

        2. While there is Supreme Court precedent for your position, Brett, I do not agree that incorporation was “the intent of the 14th Amendment”. An equally plausible and considerably simpler interpretation of that clause was to prevent states from selectively enforcing their laws in a discriminatory manner between their own citizens and the citizens of other states or between groups of their own citizens. Nothing in that reading necessarily requires a state to change its laws.

          In other words, if Alabama allows right turns on red for its own citizens, it cannot create laws penalizing that same behavior for Mississippians and it certainly cannot refuse to recognize Mississippians as citizens of the US. Nor can it say that right-on-red is allowed for right-handers but not for left-handers.

          If the First Amendment is read as a restriction on the Federal government only (as it was prior to and for rather a long time after the 14th Amendment), then it’s up to the States and their own citizens to pass similar restrictions on the State governments. Or not, as they choose.

          I happen to like the results of the incorporation doctrine. But I do not think it is required or was intended by the plain wording of the 14th Amendment.

          1. Rossami – :I happen to like the results of the incorporation doctrine. But I do not think it is required or was intended by the plain wording of the 14th Amendment.”‘I happen to like the results of the incorporation doctrine. But I do not think it is required or was intended by the plain wording of the 14th Amendment.”

            As i stated early, – Thomas’s footnote in McDonald acknowledged the concept of incorporation at ratification. incorporation at ratification under the concept that the constitution is a contract between three groups / parties 1) the States, 2) The Federal Government and 3) the people. The terms of a contract apply to all parties to the contract unless otherwise stated, which therefore binds the states to the terms of the contract (ie incorporates the BoR to the states.

            1. Continued:

              “Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guaranteed by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.”

            2. Finally:

              “Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees. How will it be done under the present amendment? As I have remarked, they are not powers granted to Congress, and therefore it is necessary, if they are to be effectuated and enforced, as they assuredly ought to be, that additional power should be given to Congress to that end. This is done by the fifth section of this amendment, which declares that “the Congress shall have power to enforce by appropriate legislation the provisions of this article.” Here is a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees, a power not found in the Constitution.”

          2. Senator Howard’s Speech (introducing the 14th amendment in the Senate.)

            “Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be?for they are not and cannot be fully defined in their entire extent and precise nature?to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit: the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

          3. See below: The P and I language absolutely was understood to compel incorporation of the first 8 amendments in the Bill of Rights, while it was another section that guaranteed equal protection:

            “The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Is it not time, Mr. President, that we extend to the black man, I had almost called it the poor privilege of the equal protection of the law? Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body?”

          4. I don’t agree with that. The work for that was already done with Article IV, Section 2: “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” The 14th Amendment is clearly aware this is in the Constitution and says something similar but noticeably different: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”

            The first one clearly says citizens of one state is entitled to the same rights as citizens of other states and is very much interpreted as a non-discrimination clause. The latter talks about how all citizens are entitled to the rights of the United States.

            The question is what rights are rights of the United States. The Bill of Rights is a logical starting point. Equally logical would be the rights described in Corfield v. Coryell. I don’t think the Slaughterhouse cases make the most logical argument but they still focused on the right question. Just reading the language of the two clauses make it clear one has the purpose you’re describing, the other is about all citizens, including residents of a state.

  8. Brett – “The other recent problem is that the Court didn’t incorporate wholesale amendments 1-8, as was the intent of the 14th amendment. Instead it has been ‘ordering ala carte’, incorporating the amendments it likes, leaving the ones it doesn’t treasure unincorporated. ”

    Concur – See Stevens dissent in McDonald where he basically stated that the court can pick and choose which ones to incorporate.

    FWIW – I think the P&I clause is the more correct argument for incorporation vs the due process clause.

    FWIW – I realize I am of the minority opinion, but it think there is a good argument for incorporation at ratification. See Thomas’ footnote in McDonald –
    Also incorporation at ratification under the concept that the constitution is a contract between three groups / parties 1) the States, 2) The Federal Government and 3) the people. The terms of a contract apply to all parties to the contract unless otherwise stated, which therefore binds the states to the terms of the contract (ie incorporates the BoR to the states.

  9. I don’t know the facts of the underlying case I assume that since this case it being used in this manner Harriet Cleveland is a fine woman in unfortunate circumstances.

    But, I wonder how society is supposed to react when poor people transgress the law and commit some offense. The current thinking among some seems to be that poor people shouldn’t be fined because they have no money but shouldn’t be sent to jail either. I suppose community service is an option. But if someone continues to avoid their debt to society what do you do? Simply give people a pass?

    1. Send them to Australia, like in the old days.

      1. Make it a Running Man scenario. Send them into the Outback with a change of clothes and a spork. If they get out alive, they’re released, if not, not.

    2. “poor people shouldn’t be fined” is not what they are actually saying.

      What they are saying is that the fine should be appropriate to the crime (not excessive). You shouldn’t lose your $20,000 car because the police found a quarter ounce of marijuana in it – a crime which if discovered while walking would have had a maximum penalty of $250 in that particular jurisdiction.

      They are further saying that the compounding of fees and penalties can turn what was an appropriate fine into a grossly inappropriate one merely because you lacked the assets to pay at that first opportunity.

      To Ms Cleveland’s case – Based on the facts presented above, the proper fine for her crime was “a few hundred dollars”. She owed that money and should not be relieved of her criminal debt until she repays that money. However, the subsequent fees and penalties since have added an extra-judicial penalty of, again based on the data above, an extra $4000. Don’t give her a pass but don’t put extra rocks in her backpack either.

      1. Some are further arguing that the initial penalty ought not to be a flat rate. The article above does not go into this thread but the principle is that a $10,000,000 fine would be a scant deterrent to Bill Gates but a potentially life-ending one for you or me. There ought to be a basis for challenging a fine that is excessive to the proper goals of justice. And accomplishing the goals of justice depend on the totality of circumstances, including the convict’s ability to actually achieve the conditions of the sentence.

      2. “They are further saying that the compounding of fees and penalties can turn what was an appropriate fine into a grossly inappropriate one merely because you lacked the assets to pay at that first opportunity.”

        See, for example, the cities in Riverside County, California, that follow up your fine with a bill for court costs and attonrey’s fees. Although I guess that’s more on the, if you dare challenge their assessment, side of things.

        1. I disagree. While that is not what this suit is saying. The clear thrust of some advocates is that poor people shouldn’t be help responsible for a laundry list of reasons.

          While the piling on of penalties and fees is egregious in some cases, some of the people fined do not make a good faith attempt to pay their debts. I wonder what the remedy is if they can’t be held in contempt and ultimately sanctioned by incarceration.

          In the above brief it is admitted that Ms. Cleveland resorted to theft and burglary to raise money.

  10. Professor Volokh,

    May I suggest an additional argument?

    I would make an argument similar to the one made in Birckhead, “The New Peonage” 71 W 1595 (2015), which argues that fines create a situation among the poor similar to the debt peonage the Supreme Court found unconstitutional in Bailey v. Alabama and it’s progeny. While the situation is not identical – people are not being forced to work – nonetheless incarcerating people who cannot pay because they are too poor has a function of creating an economic caste system where those caught up in it effectively have no rights and no place in society, and effectively poor people in poverty and prevents them from being able to move out of it.

    The system of unlimited fines and fees and the ability to incarcerate the poor for not paying them, while not exactly slavery, is nonetheless a form of debt peonage representing a kind of badge or incident of it. Since badges and incidents of slavery clearly implicate fundamental rights, things that very closely resemble them in practice do to.

  11. Having said that, this case may not be a good vehicle to raise the question.

    The problem is that Mr. Timbs was convicted of multiple felony counts of selling drugs, and, in addition to forfeiting his car, served a substantial prison sentence. And the Supreme Court has held that a sentence of life imprisonment for simple possession of drugs is not unconstitutional cruel and unusual punishment. Given this, while the trial judge apparently considered the fines and forfeitures imposed excessive, I think it’s quite likely that the Justices would take a different view and would not consider them disproportionate in a felony drug case involving a conviction for drug distribution, not just possession.

    The seriousness of the petitioner’s conduct increases the likelihood they won’t take the case. If the fines aren’t excessive, why decide the matter? If you can’t make a really strong argument the fine here really is excessive, and if the Indiana Supreme Court will forfeiting ones car isn’t excessive for felony drug dealing and get upheld, then an opinion would just be advisory.

    So why not wait for a case with a more sympathetic petitioner, where one can make a more credible argument that the petitioner’s conduct was trivial and the fine is more obviously grossly disproportionate?

    1. At this point, the question is simply whether the Clause applies to the states — the Court isn’t being asked to decide whether this particular fine is excessive. If the Court agrees to take the case, and concludes that the Clause does so apply, then it will likely just send the case back down so the Indiana courts can determine that.

      Nor does it seem likely that the Justices will say, “the penalty in this case is clearly not excessive, so we don’t want to bother with this case.” There is a square split of lower court authority on an important constitutional question — a purely legal question that doesn’t require deciding how a legal rule applies to particular facts. “Why decide the matter?,” you ask: In order to resolve this disagreement for future cases.

      Of course, perhaps despite that the Justices will feel so ill-disposed to this particular petitioner that they won’t want to bother granting cert. in this case — or perhaps feeling well-disposed to a different petitioner might have made it likelier that they’d grant cert. then. But, even if that’s so, not much will be lost: The denial of cert. won’t set a bad precedent, and the briefs will have been written and will be easy enough for future litigants to adapt in future challenges.

      1. Professor Volokh,

        Don’t the minimum federal standing rules have to be met? Doesn’t he have to show that if the court decides in his favor, there is a reasonable likelihood this will result in his obtaining concrete relief?

        The Indiana Supreme Court obviously has jurisdiction to hear his appeal. Since SCOTtUS is the first federal court to hear his claim, doesn’t it have to assure itself, like any federal court, that the elements of standing are likely to be met before it can assert probable jurisdiction and grant cert? In order to do this, doesn’t there have to be a strong likelihood that if SCOTUS rules in his favor on his federal claim, this will ultimately result in his fine being reduced?

        Of course, as you point out if SCOTUS denies certain this case a similar one will arise later.

  12. I want to know if anyone thinks $87,000.00 for a fine for a bogus contempt hearing in a divorce is excessive , after the judge, deputy and another person witnesses one side suborning perjury . He does nothing and drags it out for 9 months while charging you $100.00 a day fines? Then he prevents the deputy from testifying by having my subpoena quashed with the help of the sheriffs dept. motioning to quash my subpoena for the deputy to testify. She was the one who stopped the party from nodding his head to his son on how to answer questions under cross. The judge refused t0 let the first witness to the perjury who was the person who alerted the deputy from testifying too. Then charges me $87,000.00. He denied me the right to have my witnesses to the suborning perjury to testify , The judge admitted to me that day he saw it and noted it. But did noting. This is court without rules.

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