Excessive to Whom?: Why Courts Should Adopt a Means-Based Proportionality Framework under the Excessive Fines Clause

Drug Enforcement and Policy Center, No. 17, March 2020

Ohio State Public Law Working Paper No. 536

15 Pages Posted: 12 Mar 2020

See all articles by Stephen Krsacok

Stephen Krsacok

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: March 12, 2020

Abstract

The Excessive Fines Clause of the Eighth Amendment has long been ignored relative to other criminal sentencing protections provided by the Constitution. But the Excessive Fines Clause finally enjoyed renewed attention after the U.S. Supreme Court’s decision in Timbs v. Indiana, where the Court unanimously incorporated the Eighth Amendment’s Excessive Fines Clause protections against the states. Timbs was celebrated as a watershed victory for criminal defendants, but in reality the Court’s decision leaves much to be desired in combatting abusive fines and forfeitures. Timbs fails to provide any clarity on how exactly lower courts should determine whether a fine is “excessive,” continuing to leave that question for lower courts to puzzle over with mixed results. This Essay examines the Supreme Court’s line of Excessive Fines Clause cases leading up to Timbs, the various approaches federal and state appellate courts have adopted to determine “excessiveness,” and ultimately advocates for an approach that links “excessiveness” to an individualized consideration of the means of a criminal defendant at sentencing. This individualized approach best squares with both basic rationales of punishment theory and the original understanding of the Excessive Fines Clause.

Keywords: Excessive Fines Clause, excessive fines, Timbs, Eighth Amendment, Bajakajian, asset forfeiture

Suggested Citation

Krsacok, Stephen, Excessive to Whom?: Why Courts Should Adopt a Means-Based Proportionality Framework under the Excessive Fines Clause (March 12, 2020). Drug Enforcement and Policy Center, No. 17, March 2020, Ohio State Public Law Working Paper No. 536, Available at SSRN: https://ssrn.com/abstract=3553292 or http://dx.doi.org/10.2139/ssrn.3553292

Stephen Krsacok (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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