Fines are ubiquitous in modern society, and they are imposed for both serious crimes and minor civil wrongs. The U.S. Supreme Court recently recognized that the Constitution’s Excessive Fines Clause applies to the states, but that decision raises previously unexplored questions as to how to enforce the Clause’s protections in the states. A key question is what role, if any, federalism should play in crafting doctrinal rules that apply the Clause’s protections to state and local fines and related property forfeitures. This Article is the first to accord in-depth treatment to that important question.
The extent to which federalism principles should apply does not have an immediate and obvious answer. On the one hand, federalism plays a significant role in the Court’s jurisprudence on the Cruel and Unusual Punishment Clause. The Court therefore generally takes a highly deferential approach in reviewing sentences of imprisonment. Lower courts have applied that same deferential review in the context of the Excessive Fines Clause. On the other hand, fines and forfeitures are unlike other forms of punishment—such as prison—because they are often used as a revenue source for state and local governments, creating a conflict of interest for state and local decision-making bodies.
To address this conundrum, this Article makes the novel argument that the Court should look to the exactions doctrine under the Takings Clause, which often implicates similar concerns of government self-interest and overreaching. Exactions and excessive fines are conceptually similar, but scholars thus far have overlooked the close relationship between them. The exactions doctrine gives minimal weight to federalism concerns, and it applies a heightened-scrutiny standard that is well suited to the excessive fines context. Indeed, differences between federal practice and state and local practices as to fines suggest that state and local discretionary fines should be subject to closer constitutional scrutiny than federal fines. As a recent example illustrates, such heightened scrutiny would ensure that the Excessive Fines Clause is not merely a parchment barrier, while still accounting for variations between states and localities in terms of their communities’ values and needs.
Introduction
The U.S. Supreme Court recently held that the Excessive Fines Clause of the Eighth Amendment is incorporated into the Due Process Clause of the Fourteenth Amendment and, thus, applies to state action.1 1.Timbs v. Indiana, 139 S. Ct. 682, 687 (2019) (holding that the Excessive Fines Clause applied to the states).Show More The expanded applicability of the Excessive Fines Clause may ultimately mean very little, as lower courts generally are highly deferential in their constitutional review of fines and forfeitures.2 2.See infra Subsection I.A.2.Show More Indeed, many courts apply a presumption of constitutionality to a fine or forfeiture below the statutory maximum, rendering illusory the Clause’s protections3 3.See, e.g., Ficken v. City of Dunedin, No. 21-11773, 2022 WL 2734429, at *3 (11th Cir. July 14, 2022); City of Seattle v. Long, 493 P.3d 94, 115 (Wash. 2021); United States v. Suarez, 966 F.3d 376, 387 (5th Cir. 2020); Commonwealth v. Ishankulov, 275 A.3d 498, 505 (Pa. Super. Ct. 2022); Morrow v. City of San Diego, No. 11-cv-01497, 2011 WL 4945015, at *5 (S.D. Cal. Oct. 18, 2011).Show More—even, for example, when someone stands to lose their house for failure to mow their lawn.4 4.See infra Section I.A (discussing Ficken).Show More
This deferential review is consistent with principles of federalism, which generally provide that the federal branches of government, including the judiciary, must respect state and local decision-making.5 5.See infra Sections I.B, II.A.Show More The current Court has fully embraced federalism in many recent decisions, leading one commentator to refer to the Court as “the most ‘federalism’-friendly court in at least a century.”6 6.Sanford V. Levinson, Is the Supreme Court Moving Us Backward, or Back Toward Federalism?, Dall. Morning News (July 29, 2022, 7:00 AM), https://www.dallasnews.com/opinion/commentary/2022/07/31/is-the-supreme-court-moving-us-backward-or-back-toward-federalism/ [https://perma.cc/NNW4-FCZ6]; see also Timothy M. Harris, Backwards Federalism: The Withering Importance of State Property Law in Modern Takings Jurisprudence, 75 Rutgers U. L. Rev. 571, 572–73, 601–06 (2023) (citing Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), and West Virginia v. EPA, 142 S. Ct. 2587 (2022), as recent decisions demonstrating that the Court, overall, is elevating federalism concerns over issues such as abortion rights and climate change).Show More However, neither the Court nor scholars have yet directly addressed the weight federalism concerns carry in the excessive fines context because of the recentness of the Court’s incorporation of the Excessive Fines Clause. I seek to explore that key issue herein.
Ultimately, I conclude that federalism should play a minimal role as to the Excessive Fines Clause and, relatedly, that heightened scrutiny should instead apply to the review of discretionary state and local fines. This conclusion, however, is in tension with the Court’s current doctrine. Thus far, the Court has relied upon cases involving the Cruel and Unusual Punishment Clause for guidance in shaping the contours of excessive fines doctrine.7 7.See United States v. Bajakajian, 524 U.S. 321, 336–37 (1998).Show More It has done so with little reasoning.8 8.See id. The Eighth Amendment provides in its entirety: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.Show More Federalism principles play a central role in the Court’s cruel and unusual punishment cases, such that the Court takes a highly deferential approach to its review of sentences of imprisonment.9 9.See infra Section II.A.Show More Lower courts have adopted that same deferential approach in the excessive fines context.10 10.See infra Section II.B.Show More
This Article argues that the exactions doctrine within the Takings Clause is a better analogue—at least as to state and local fines. Both the Takings Clause and the Excessive Fines Clause limit government acquisitions of property: takings must be for public use and just compensation must be paid,11 11.U.S. Const. amend. V.Show More and punitive fines and forfeitures must not be excessive.12 12.See Austin v. United States, 509 U.S. 602, 610 (1993); U.S. Const. amend. VIII.Show More State and local governments often rely upon fines and forfeitures as sources of revenue, raising concerns similar to those underlying exactions—that the government is acting out of self-interest, overreaching, and singling out the few to shoulder what should be public burdens.13 13.See infra Sections II.B, III.A. I use the term “self-interest” throughout to refer to government action for the purpose of acquiring funds and other resources to fund the workings of government itself or to use for a public project. Cf. United States v. Winstar Corp., 518 U.S. 839, 896 (1996) (“[W]hen we speak of governmental ‘self-interest,’ we simply mean to identify instances in which the Government seeks to shift the costs of meeting its legitimate public responsibilities to private parties.”). I distinguish this from government action that resolves disputes between private parties or that costs the government money. Although the funds or other property acquired will ultimately serve the public interest when used for public services or projects, the risk of government overreach is heightened when it seeks to expand its resources. See infra Subsection III.C.1.Show More These concerns are generally not present as to sentences of imprisonment, which cost the government money.
To date, scholars have largely overlooked this close relationship between takings and excessive fines. This Article explores the connection and shows how takings jurisprudence—primarily the exactions doctrine—may prove especially useful for the Court as it continues to flesh out the doctrinal details of the Excessive Fines Clause.
In the takings context, the Supreme Court has held that heightened scrutiny applies to exactions, which occur when the government requests private property in exchange for lifting land-use restrictions.14 14.See Lee Anne Fennell, Escape Room: Implicit Takings After Cedar Point Nursery, 17 Duke J. Const. L. & Pub. Pol’y 1, 49–50 (2022) (noting that exactions receive “high scrutiny” and are reviewed under standards “far beyond the usual standard for social and economic legislation”).Show More Specifically, the Court requires the government to show both (1) a nexus between the exaction and the proposed development and (2) that the exaction is roughly proportionate to the impact of the proposed development.15 15.See Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 599, 612 (2013).Show More The Court has explained that its exactions doctrine is a special application of its “unconstitutional conditions doctrine” and has justified the heightened scrutiny with concerns about government self-interest and overreaching.16 16.See infra Paragraph III.B.2.i; Subsection III.C.1.Show More The Court has rejected federalism-based arguments that a more deferential standard should apply to review of state and local exactions.17 17.See infra Subsection III.B.2.Show More
Although I do not rely on the unconstitutional conditions doctrine, I argue that heightened scrutiny should apply to discretionary fines due to similar concerns, and despite the federalism principles at play.18 18.Outside of the excessive fines context, scholars have argued that the Court should adopt an inquiry similar to the exactions inquiry to determine whether the public use requirement of the Takings Clause is satisfied with respect to a particular exercise of the power of eminent domain. See Brief for David L. Callies et al. as Amici Curiae Supporting Petitioners at 22–25, Kelo v. City of New London, 545 U.S. 469 (2005) (No. 04-108).Show More State and local fines often directly fund those governments, bringing in millions in revenue.19 19.See, e.g., Ben Wieder, Shirsho Dasgupta & Sheridan Wall, Families Lose Homes After Florida Cities Turbocharge Code Enforcement Foreclosures, Mia. Herald (Sept. 2, 2024, 12:43 PM), https://www.miamiherald.com/news/business/real-estate-news/article273093600.html [https://perma.cc/FSZ9-K98C].Show More By contrast, federal criminal fines are generally not used as a source of revenue.20 20.Federal criminal fines generally do not pose issues of self-interest, as most criminal fines are paid into the Crime Victim Fund. See 34 U.S.C. § 20101(b)(1). Federal forfeitures, however, do implicate issues of government self-interest, as they often function as revenue sources for both the federal government and, through equitable sharing programs, for state and local governments. See Lisa Knepper, Jennifer McDonald, Kathy Sanchez & Elyse Smith Pohl, Inst. for Just., Policing for Profit: The Abuse of Civil Asset Forfeiture 15–17 (3d ed. 2020), https://ij.org/wp-content/uploads/2020/12/policing-for-profit-3-web.pdf [https://perma.cc/JQ2H-YWS8].Show More Further, state and local fines are imposed by judges who often have wide discretion as to the fine amounts and generally are not required by statute to ensure that the fine is proportional to the severity of the offense and the offender’s ability to pay. Federal statutes, however, require federal courts to consider the circumstances of the offense and the offender’s financial circumstances. Concerns of government overreach and singling out are thus particularly acute in the context of state and local discretionary fines, suggesting that they should perhaps be subject to more scrutiny than in the federal context—not more deference on federalism grounds.21 21.See infra Section IV.A.Show More
In analyzing mandatory fines, which are similar in nature to legislative exactions and involve heightened federalism concerns, I rely upon the Supreme Court’s 2024 decision in Sheetz v. County of El Dorado, holding that legislative exactions are not categorically excluded from heightened review.22 22.144 S. Ct. 893, 902 (2024).Show More I ultimately suggest that certain mandatory fines may violate the Excessive Fines Clause to the extent they wholly fail to account for the individualized circumstances of the offense and the offender.
The heightened scrutiny proposed in this Article would be a substantial step toward eliminating the significant governmental abuses that currently occur with respect to discretionary and certain mandatory fines and forfeitures. Fines and forfeitures have a disproportionate impact on impoverished and disadvantaged groups.23 23.For example, a 2023 investigation by the Miami Herald shows that Black-owned heirs’ property was recently the target of “ramped-up foreclosures over unpaid code fines in numerous cities across [Florida].” Amelia Winger, Heirs to Black-Owned Homes Face Ramped-Up Foreclosures. Here’s Who’s Pushing Back, Mia. Herald (Sept. 2, 2024, 7:50 AM), https://www.miamiherald.com/news/business/real-estate-news/article276644691.html [https://perma.cc/ZF46-GFK7].Show More They can result in debtors losing their ability to pay for basic necessities, including rent or housing payments, which also may impact debtors’ families.24 24.Beth A. Colgan, The Excessive Fines Clause: Challenging the Modern Debtors’ Prison, 65 UCLA L. Rev. 2, 67 (2018) [hereinafter Colgan, Debtors’ Prison].Show More Fines often result in property liens, which if foreclosed upon (a common practice in some states) can result in the loss of the debtor’s home.25 25.See Wieder et al., supra note 19; Jayati Ramakrishnan, Analysis Finds Property Owners in Portland’s Most Diverse, Gentrifying Areas Hardest Hit by Code Violation Fines, The Oregonian (Nov. 3, 2021, 6:00 AM), https://www.oregonlive.com/portland/2021/11/analysis-finds-property-owners-in-portlands-most-diverse-gentrifying-areas-hardest-hit-by-code-violation-fines.html [https://perma.cc/9GDQ-7P6D]; Jaelynn Grisso, Code Violations Can Be Double-Edged Sword for Low-Income Residents, Matter News (June 4, 2021), https://matternews.org/community/code-violations-can-be-double-edged-sword-for-low-income-residents/ [https://perma.cc/V87S-PD4X]; Eileen Zaffiro-Kean, Daytona Properties with Unpaid Fines Could Face Foreclosure, Daytona Beach News-J. (May 14, 2017, 3:13 PM), https://www.news-journalonline.com/story/business/real-estate/2017/05/14/daytona-properties-with-unpaid-fines-could-face-foreclosure/21045567007/ [https://perma.cc/VS7N-BUGH]. In some states this practice is very common. In the past eight years, one attorney has filed foreclosure lawsuits against more than 800 properties in nine Florida cities. Ben Wieder, Lawyer Once Helped Debt-Ridden Owners Hang on to Homes. Now He Helps Cities Take Them Away, Mia. Herald (Jan. 26, 2025, 6:35 AM), https://www.miamiherald.com/news/business/real-estate-news/article273093630.html [https://perma.cc/7GP2-M8QP].Show More State and local governments can also use fines and foreclosures on the related liens as a way to acquire property without formally condemning blighted property and paying the just compensation required under the Takings Clause.26 26.See infra Section IV.A.Show More
This Article proceeds as follows: Part I examines key questions about the application of the Excessive Fines Clause that remain after Timbs v. Indiana, which held that the provision applies to the states. It also discusses the role federalism plays both in court opinions and the scholarship addressing the formulation of doctrine to enforce the Bill of Rights. Part II of the Article analyzes the role federalism has played in the Supreme Court’s cruel and unusual punishment cases and how those cases have influenced the Court with respect to its formulation of doctrine to implement the meaning of the Excessive Fines Clause. Part III then turns to the Court’s takings jurisprudence and explores (1) the similarities between takings and excessive fines, (2) the heightened scrutiny that applies in the exactions context, and (3) the federalism arguments against such scrutiny. Part IV argues that the Court should apply its heightened scrutiny to the review of discretionary fines so as to ensure that excessive fines provisions do not remain toothless. This Part further argues that federalism generally has only a minimal role to play in this context. Federalism plays a larger role as to mandatory fines, but as I suggest, certain mandatory fines may themselves be inconsistent with the Excessive Fines Clause. A short Conclusion follows.
- Timbs v. Indiana, 139 S. Ct. 682, 687 (2019) (holding that the Excessive Fines Clause applied to the states). ↑
- See infra Subsection I.A.2. ↑
- See, e.g., Ficken v. City of Dunedin, No. 21-11773, 2022 WL 2734429, at *3 (11th Cir. July 14, 2022); City of Seattle v. Long, 493 P.3d 94, 115 (Wash. 2021); United States v. Suarez, 966 F.3d 376, 387 (5th Cir. 2020); Commonwealth v. Ishankulov, 275 A.3d 498, 505 (Pa. Super. Ct. 2022); Morrow v. City of San Diego, No. 11-cv-01497, 2011 WL 4945015, at *5 (S.D. Cal. Oct. 18, 2011). ↑
- See infra Section I.A (discussing Ficken). ↑
- See infra Sections I.B, II.A. ↑
- Sanford V. Levinson, Is the Supreme Court Moving Us Backward, or Back Toward Federalism?, Dall. Morning News (July 29, 2022, 7:00 AM), https://www.dallasnews.com/opinion/commentary/2022/07/31/is-the-supreme-court-moving-us-backward-or-back-toward-federalism/ [https://perma.cc/NNW4-FCZ6]; see also Timothy M. Harris, Backwards Federalism: The Withering Importance of State Property Law in Modern Takings Jurisprudence, 75 Rutgers U. L. Rev. 571, 572–73, 601–06 (2023) (citing Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), and West Virginia v. EPA, 142 S. Ct. 2587 (2022), as recent decisions demonstrating that the Court, overall, is elevating federalism concerns over issues such as abortion rights and climate change). ↑
- See United States v. Bajakajian, 524 U.S. 321, 336–37 (1998). ↑
- See id. The Eighth Amendment provides in its entirety: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. ↑
- See infra Section II.A. ↑
- See infra Section II.B. ↑
- U.S. Const. amend. V. ↑
- See Austin v. United States, 509 U.S. 602, 610 (1993); U.S. Const. amend. VIII. ↑
- See infra Sections II.B, III.A. I use the term “self-interest” throughout to refer to government action for the purpose of acquiring funds and other resources to fund the workings of government itself or to use for a public project. Cf. United States v. Winstar Corp., 518 U.S. 839, 896 (1996) (“[W]hen we speak of governmental ‘self-interest,’ we simply mean to identify instances in which the Government seeks to shift the costs of meeting its legitimate public responsibilities to private parties.”). I distinguish this from government action that resolves disputes between private parties or that costs the government money. Although the funds or other property acquired will ultimately serve the public interest when used for public services or projects, the risk of government overreach is heightened when it seeks to expand its resources. See infra Subsection III.C.1. ↑
- See Lee Anne Fennell, Escape Room: Implicit Takings After Cedar Point Nursery, 17 Duke J. Const. L. & Pub. Pol’y 1, 49–50 (2022) (noting that exactions receive “high scrutiny” and are reviewed under standards “far beyond the usual standard for social and economic legislation”). ↑
- See Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 599, 612 (2013). ↑
- See infra Paragraph III.B.2.i; Subsection III.C.1. ↑
- See infra Subsection III.B.2. ↑
- Outside of the excessive fines context, scholars have argued that the Court should adopt an inquiry similar to the exactions inquiry to determine whether the public use requirement of the Takings Clause is satisfied with respect to a particular exercise of the power of eminent domain. See Brief for David L. Callies et al. as Amici Curiae Supporting Petitioners at 22–25, Kelo v. City of New London, 545 U.S. 469 (2005) (No. 04-108). ↑
- See, e.g., Ben Wieder, Shirsho Dasgupta & Sheridan Wall, Families Lose Homes After Florida Cities Turbocharge Code Enforcement Foreclosures, Mia. Herald (Sept. 2, 2024, 12:43 PM), https://www.miamiherald.com/news/business/real-estate-news/article273093600.html [https://perma.cc/FSZ9-K98C]. ↑
- Federal criminal fines generally do not pose issues of self-interest, as most criminal fines are paid into the Crime Victim Fund. See 34 U.S.C. § 20101(b)(1). Federal forfeitures, however, do implicate issues of government self-interest, as they often function as revenue sources for both the federal government and, through equitable sharing programs, for state and local governments. See Lisa Knepper, Jennifer McDonald, Kathy Sanchez & Elyse Smith Pohl, Inst. for Just., Policing for Profit: The Abuse of Civil Asset Forfeiture 15–17 (3d ed. 2020), https://ij.org/wp-content/uploads/2020/12/policing-for-profit-3-web.pdf [https://perma.cc/JQ2H-YWS8]. ↑
- See infra Section IV.A. ↑
- 144 S. Ct. 893, 902 (2024). ↑
- For example, a 2023 investigation by the Miami Herald shows that Black-owned heirs’ property was recently the target of “ramped-up foreclosures over unpaid code fines in numerous cities across [Florida].” Amelia Winger, Heirs to Black-Owned Homes Face Ramped-Up Foreclosures. Here’s Who’s Pushing Back, Mia. Herald (Sept. 2, 2024, 7:50 AM), https://www.miamiherald.com/news/business/real-estate-news/article276644691.html [https://perma.cc/ZF46-GFK7]. ↑
- Beth A. Colgan, The Excessive Fines Clause: Challenging the Modern Debtors’ Prison, 65 UCLA L. Rev. 2, 67 (2018) [hereinafter Colgan, Debtors’ Prison]. ↑
- See Wieder et al., supra note 19; Jayati Ramakrishnan, Analysis Finds Property Owners in Portland’s Most Diverse, Gentrifying Areas Hardest Hit by Code Violation Fines, The Oregonian (Nov. 3, 2021, 6:00 AM), https://www.oregonlive.com/portland/2021/11/analysis-finds-property-owners-in-portlands-most-diverse-gentrifying-areas-hardest-hit-by-code-violation-fines.html [https://perma.cc/9GDQ-7P6D]; Jaelynn Grisso, Code Violations Can Be Double-Edged Sword for Low-Income Residents, Matter News (June 4, 2021), https://matternews.org/community/code-violations-can-be-double-edged-sword-for-low-income-residents/ [https://perma.cc/V87S-PD4X]; Eileen Zaffiro-Kean, Daytona Properties with Unpaid Fines Could Face Foreclosure, Daytona Beach News-J. (May 14, 2017, 3:13 PM), https://www.news-journalonline.com/story/business/real-estate/2017/05/14/daytona-properties-with-unpaid-fines-could-face-foreclosure/21045567007/ [https://perma.cc/VS7N-BUGH]. In some states this practice is very common. In the past eight years, one attorney has filed foreclosure lawsuits against more than 800 properties in nine Florida cities. Ben Wieder, Lawyer Once Helped Debt-Ridden Owners Hang on to Homes. Now He Helps Cities Take Them Away, Mia. Herald (Jan. 26, 2025, 6:35 AM), https://www.miamiherald.com/news/business/real-estate-news/article273093630.html [https://perma.cc/7GP2-M8QP]. ↑
-
See infra Section IV.A. ↑