Our Anemic Excessive Fines Clause: Are State Courts Following The Federal Lead?

In 2019, in Timbs v. Indiana, the United States Supreme Court held for the first time that the Eighth Amendment Excessive Fines Clause is incorporated into the Fourteenth Amendment and thus limits the fines that can be imposed by state and local authorities. In its opinion, the Court suggested that the Clause might be used to rein in the controversial and growing reliance of American governments on economic penalties—a practice that is said to warp law-enforcement priorities and shift public expenses from ordinary taxpaying sources to the socioeconomically disadvantaged. However, Timbs was decided against a backdrop of well-established, contrary jurisprudential patterns in the lower federal courts. The federal case law has consistently adopted narrowing interpretations of the Excessive Fines Clause, which have left the Clause largely ineffectual as a matter of federal practice. Timbs seemed to invite state courts to engage differently with the Clause. Have they?

This Article provides the first systematic survey of the post-Timbs state case law on the Excessive Fines Clause. On the whole, state courts are following the federal lead, although the case law in a handful of states holds out the possibility of a more robust understanding of the Clause. In particular, if the emerging case law in Washington proves influential with other states, there remains some possibility that the promise of Timbs will be realized.