Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
For years the Supreme Court had little to say about excessive fines. In an early case, it held that it had no appellate jurisdiction to revise the sentence of an inferior court, even though the excessiveness of the fines was apparent on the face of the record.1 Justice Brandeis once contended in dissent that the denial of second-class mailing privileges to a newspaper on the basis of its past conduct, because it imposed additional mailing costs which grew day by day, amounted to an unlimited fine that was an
unprecedented punishment proscribed by the Eighth Amendment.2 The Court has elected to deal with the issue of fines levied upon indigents, resulting in imprisonment upon inability to pay, in terms of the Equal Protection Clause,3 thus obviating any necessity to develop the meaning of
excessive fines in relation to ability to pay. The Court has held the clause inapplicable to civil jury awards of punitive damages in cases between private parties,
when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded.4 The Court based this conclusion on a review of the history and purposes of the Excessive Fines Clause. At the time the Eighth Amendment was adopted, the Court noted,
the word ‘fine’ was understood to mean a payment to a sovereign as punishment for some offense.5 The Eighth Amendment itself, as were antecedents of the clause in the Virginia Declaration of Rights and in the English Bill of Rights of 1689,
clearly was adopted with the particular intent of placing limits on the powers of the new government.6 Therefore, while leaving open the issues of whether the clause has any applicability to civil penalties or to qui tam actions, the Court determined that
the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government.7 The Court has held, however, that the Excessive Fines Clause can be applied in civil forfeiture cases.8
In 1998, however, the Court injected vitality into the strictures of the clause.
The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.9 In United States v. Bajakajian,10 the government sought to require that a criminal defendant charged with violating federal reporting requirements regarding the transportation of more than $10,000 in currency out of the country forfeit the currency involved, which totaled $357,144. The Court held that the forfeiture11 in this particular case violated the Excessive Fines Cause because the amount forfeited was
grossly disproportionate to the gravity of defendant’s offense.12 In determining proportionality, the Court did not limit itself to a comparison of the fine amount to the proven offense, but it also considered the particular facts of the case, the character of the defendant, and the harm caused by the offense.13