Six years ago, in Timbs v. Indiana, Supreme Court Justice Ruth Bader Ginsburg wrote a majority opinion that pointed out the origins of the Eighth Amendment’s Excessive Fines Clause and the original intent that it be a shield for the weakest Americans. Bans on excessive fines, Justice Ginsburg noted, date back to Magna Carta, which required that fines “be proportioned to the wrong” and “not be so large as to deprive” someone “of his livelihood.” Centuries later, legal scholar William Blackstone said this rule forbade imposing fines on a person heftier “than his circumstances or personal estate will bear.” Early Americans quickly adopted their own bans on excessive fines.
President Donald Trump certainly should not be the poster boy for the Excessive Fines Clause.
President Donald Trump certainly should not be the poster boy for the Excessive Fines Clause. Though his half-billion-dollar win in New York courts is dominating the headlines, its protections are most important for more ordinary Americans.
Even so, on Thursday, a New York appellate court, citing that clause, struck down a $500 million fine against the president for filing dishonest business records. Regardless of whether Trump’s case was decided rightly or wrongly, it isn’t typical, and focus on it threatens to obscure the clause’s role in protecting everyday Americans. Blackstone had much more modest circumstances in mind when he wrote that fines could not deprive landowners of their land, merchants of their businesses, or farmers of their animals and equipment. A court imposing a fine had to recognize that what “is ruin to one man’s fortune, may be matter of indifference to another’s” and adjust the amount accordingly. We should all be thankful that such a clause exists and that it prohibits excessive fines — even if in addition to protecting people with average assets, it also protects people with great fortunes.
Though the clause has been in the Constitution since the adoption of the Bill of Rights, worries about excessive fines crushing people with little took on new importance after the Civil War. Unable to legally maintain slavery, Southern states enacted “Black Codes,” tyrannical laws that included imposing draconian fines on emancipated people for violating ill-defined laws, like those banning vagrancy.
To take examples from the Justice Ginsburg opinion in Timbs v. Indiana mentioned above, Mississippi gave unemployed freedmen five days to pay $50 fines or they would be forced into involuntary labor. One congressman accused Alabama of “almost reenacting slavery” using harsh fines, while a senator condemned a $1,000 fine that “sells a negro for his life.” Congress responded to such oppression by passing the 14th Amendment, which applies key constitutional protections to abuses committed by state governments.
Despite this protection, excessive fines have continued to oppress Americans. In the Timbs v. Indiana case, the libertarian Cato Institute (where I work) joined with the Southern Poverty Law Center to file a legal brief explaining that 10 million people currently hold criminal debt, totaling more than $50 billion. Both the total amount of fines and the number of people burdened with paying them have multiplied in recent decades. One study found that the average family of a formerly incarcerated person incurs $13,607 in court-related fines and fees.
The total amount of fines and the number of people burdened with paying them have multiplied in recent decades.
Fines amount to more than just dollars and cents. They push people re-entering society after a conviction into hard choices: pay a fine or keep up with child support? Send a check to a court or secure safe housing? Most troublingly for society — earn lawful wages with garnishments, or turn back to crime? The costs that fines place on individuals spell trouble for entire communities.
For all this, fines hardly repay governments. The federal government collects just $4 billion in criminal debt annually. Still, fines are often a convenient (and not transparent) way to fill budget potholes. Back in the 2010s, around the time it became a focus point for nationwide civil rights protests, the city of Ferguson, Missouri, boasted of fining residents over $100 for weeds/high-grass violations (while other locales fined just $5 for this offense). Local police officers there competed to see who could charge the most fines in every stop they conducted. Governments like Ferguson’s started seeing city residents as piggy banks they could shake down for loose change.
A New York appeals court says the $464 million "disgorgement order" in Trump's civil fraud case violated the Eighth Amendment's ban on "excessive fines." https://t.co/724d1gXeQu These wrongs never fell equally on all Americans. The NAACP called out state and local governments for “disparately imposing these fines against Black Americans and other people of color” — re-enacting the very sort of “discriminatory punishment” that inspired the 14th Amendment 150 years ago. Reversing the fine imposed on President Trump is not a great milestone along the way to uprooting these injustices. But it does confirm that the Excessive Fines Clause has teeth. The clause also has the potential to do more for ordinary Americans, rather than just becoming another tool the richest individuals in the U.S. can use to escape responsibility for their actions. The Supreme Court has yet to adopt Blackstone’s respect for people’s resources and needs as an Eighth Amendment requirement. While the Trump case will hardly be an occasion for it to do so, it is a good occasion to remember that the Excessive Fines clause is meant to protect not just titanic fortunes, but commonplace living — not just the most well-off, but those trying to rebuild from nothing.
Matthew Cavedon
Matthew Cavedon is the director of the Project on Criminal Justice at the Cato Institute. A former public defender, he has previously taught courses in criminal and constitutional law. 
