The Excessive Fines Clause

States and municipalities are increasingly relying on fines and fees imposed on defendants by criminal courts to fund their court systems and other government operations. Rather than relying on taxes, state and local governments have opted to extract wealth from their poorest and most vulnerable citizens in the form of “criminal legal debt”—financial sanctions imposed as part of the criminal legal system.

These types of penalties are inherently regressive—that is, they have a greater impact on those who are poorer as compared to those who are richer. And such a financial sanction would be difficult for many Americans to bear. A 2020 report issued by the Federal Reserve found that nearly 40 percent of adults would be unable to immediately cover an unexpected $400 expense.

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Public Justice and others challenging the criminalization of poverty have long been focused on constitutional claims designed to halt the jailing of indigent people, relying on the Supreme Court’s decision in Bearden v. Georgia, which held that the government may not fine a person and then “imprison a person solely because he lacked the resources to pay it.”

But debt imposed through the criminal process can have devastating consequences beyond jail. The inability to pay fines can also lead to suspension of a driver’s license, the loss of public benefits, and the deprivation of important civil rights. Individuals who face fines and fees may even forgo basic needs, miss bills, or borrow at high interest rates in ways that will impact future financial stability.

The Bill of Rights contains an express protection against these types of government practices: The Eighth Amendment to the U.S. Constitution protects against “excessive fines imposed,” a constitutional protection commonly referred to as the Excessive Fines Clause. Unfortunately, however, the Excessive Fines Clause’s protections are rarely invoked. The U.S. Supreme Court has addressed whether a fine is “excessive” only once, and few lower courts have addressed how the Excessive Fines Clause might apply to the fines and fees discussed above. Many fines and fees are imposed in situations when a person does not have a right to counsel under the Sixth Amendment. Even when legal counsel is available, the cumulative effect of many fines and fees becomes “excessive” many months after the financial penalties have been imposed, after a public defender is no longer in the picture.

At Public Justice’s Debtors’ Prison Project, we believe that the Excessive Fines Clause has the potential—largely untapped—to be a powerful tool in the fight against unfair fines and fees. We are developing cases to encourage courts to grapple with the Excessive Fines Clause as a protection against unpayable criminal legal debt.

Specifically, We Believe...

The Excessive Fines Clause applies even if the government does not expressly label a financial penalty as a “fine.” The Clause also applies to other kinds of fees and surcharges imposed on criminal defendants, such as:
- “Room and board” fees imposed on people released from jail or prison to recoup the costs of their incarceration;
- Public defender fees, which most states require defendants to pay despite the fact that they were constitutionally entitled to appointed counsel due to their poverty;
- Fees imposed by private companies, including probation fees, fees imposed for towing and impounded vehicles, and fees for drug testing and ankle monitoring.
- When a court sentences a criminal defendant to pay a fine or fee, the court is required to consider whether the fine or fee is excessive under the Excessive Fines Clause.
  - When considering whether a fine is so severe as to be constitutionally excessive, courts must measure severity not only in relation to the underlying offense, but also against a defendant’s personal financial circumstances—that is, whether the defendant has the ability to pay the fine. Common sense tells us that a $400 penalty would be far more severe for a poor person, already struggling to make ends meet, than it would for a person with means.
  - A fine is “excessive” under the clause if (1) it is too severe when compared to the offense being punished; or (2) the fine is so burdensome that a defendant cannot pay for the necessities of life. Or, as the Supreme Court said in its 2019 decision Timbs v. Indiana, a fine is unconstitutional if it is “grossly disproportionate” to the offense or if it “deprives an offender of his livelihood.”

What Public Justice is Doing

Here are a few of our cases:

In City of Seattle v. Long, we filed an amicus brief with the Washington Supreme Court on behalf of Steven Long, a vehicularly housed man who was charged over $500 in towing and impound fees for a minor parking infraction. The lower court held that the fine imposed was not excessive even though Steven was indigent and had only $50 to his name. Our brief argued that, under the Excessive Fines Clause, is necessary to consider a defendant’s individual circumstances such as ability to pay when imposing a fine. In August 2021, the state supreme court agreed with our brief and held in a unanimous decision that the Excessive Fines Clause requires consideration of a defendant’s ability to pay. The Long court was also the first court ever to hold that impoundment and towing fees can constitute a “fine” subject to the Clause’s protections. Learn more on our blog here.
In Johnson v. City of Grants Pass, we filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit defending a decision by a federal court in Oregon holding that a city’s attempts to fine unhoused individuals for sleeping outdoors violated the Excessive Fines Clause. Our brief argued that the lower court properly held that any fine imposed on unhoused individuals for conduct directly stemming from homelessness would violate the Excessive Fines Clause. That case remains pending before the Ninth Circuit.
In Commonwealth v. May, we filed an amicus brief with the Pennsylvania Supreme Court, arguing that a sentencing court erred in failing to consider a defendant’s ability to pay before imposing a fine. Pennsylvania statutory law clearly provides that a sentencing court must consider ability to pay before imposing any fine. But courts have generally interpreted those statutes to apply only to discretionary fines, which leave the fine amount entirely up to the judge, rather than so-called “mandatory” fines, which are set at a fixed amount. Our amicus brief argued that the Excessive Fines Clauses of the U.S. and Pennsylvania Constitutions requires consideration of ability to pay, and an interpretation of a statute that forecloses consideration of ability to pay would raise serious constitutional questions. Because courts are obligated to interpret statutes to avoid constitutional problems, Pennsylvania courts should interpret these statutory protections as covering both mandatory and discretionary fines. In February 2022, a lower court rejected the defendant’s claim in a terse decision relying on outdated case law, and we have joined the defendant asking the state supreme court to review this decision.

We are actively seeking opportunities to raise these and other arguments regarding the Excessive Fines Clause. If you have an idea for a potential case or are interested in partnering with us on this work, please email us at dpp@publicjustice.net.

Resources

This cheat sheet outlines arguments based on the Excessive Fines Clause that public defenders and other advocates might consider making in response to fines and fees.
This slideshow is from a presentation that Public Justice attorneys gave at the National Legal Aid and Defender Association’s 2021 Annual Conference.
The Fines and Fees Justice Center is a national advocacy organization working to create a justice system that does not impose burdensome, unpayable fines and fees.
Professor Beth Colgan, the leading scholar on the Excessive Fines Clause, has written a groundbreaking article explaining why the history of the Clause indicates that the Constitution provides protection against many predatory criminal debt practices that people face today.