Complete Forfeiture and the Excessive Fines Clause: Federal Standards and Case Law

Introduction

The Eighth Amendment’s Excessive Fines Clause declares that “excessive fines” shall not be imposed, but what counts as “excessive” has been a subject of evolving judicial interpretation. In recent years, American governments have increasingly relied on fines, fees, and forfeitures as punitive and revenue-generating measures, heightening the urgency of clear standards for excessiveness.[2†L39-L47] One particularly salient context is complete forfeiture – the government’s seizure of an entire asset or sum of money due to an offense. Such total deprivations raise fundamental questions about proportional punishment: at what point does forfeiting an offender’s property in its entirety become an unconstitutionally excessive fine? This article provides a neutral, scholarly analysis of the federal law governing excessive fines, with a focus on complete forfeitures. It reviews the development of legal standards under the Eighth Amendment, examines leading Supreme Court precedents (such as Austin v. United States and United States v. Bajakajian), and analyzes how courts assess whether a forfeiture is “grossly disproportional” to the gravity of an offense. The doctrinal evolution over the past quarter-century reveals a tension between the promise of the Excessive Fines Clause as a check on draconian economic sanctions and the practice of the lower courts in narrowing that check.[2†L47-L55] Understanding this landscape is critical for legal scholars and policymakers concerned with the limits of punitive forfeiture.

I. The Excessive Fines Clause and Forfeiture: Scope and Purpose

Text and Historical Purpose: The Excessive Fines Clause, part of the Eighth Amendment, traces its lineage to the English Bill of Rights of 1689 and early American colonial grievances against abusive monetary penalties. It was designed to restrain the sovereign’s power to punish by financial exactions. As the Supreme Court has noted, at the time of the Amendment’s adoption “the word ‘fine’ was understood to mean a payment to a sovereign as punishment for some offense.”[24†L51-L59] In other words, the Clause was intended to limit government-imposed punishments that take the form of monetary penalties or forfeitures of property. The prototypical “fine” is a cash penalty assessed by a court, but the Clause’s protections are not limited to cash payments alone. From early on, the Court recognized that it could intervene if a government-imposed financial penalty was “grossly excessive” in relation to its purpose.[20†L69-L77] This gross-excessiveness standard set a high bar, reflecting deference to legislatures’ authority to define penalties while guarding against truly egregious punishments.

Forfeitures as “Fines”: A critical question for the Clause’s scope is which forfeitures count as fines. Many legal penalties involve complete forfeiture of property (real estate, cash, vehicles, etc.) used in or gained from unlawful activities. Historically, some forfeitures were considered civil and remedial – for example, seizing contraband or goods to recover unpaid customs duties – and thus not viewed as punishment. Others, however, serve primarily to punish the owner. In Austin v. United States (1993), the Supreme Court squarely addressed this issue, holding that certain in rem forfeitures under the federal drug laws (21 U.S.C. § 881) are “monetary punishment” subject to the Excessive Fines Clause.[27†L139-L147] The government had sought to forfeit an entire auto body shop and mobile home belonging to a defendant involved in a low-level drug offense. The Court reasoned that the forfeiture, though labeled civil, could not be justified solely as remedial; its purpose and effect were at least partly to punish the offender.[24†L61-L69] The Clause’s applicability thus “did not depend on whether [the proceeding] was civil or criminal, but rather on whether the forfeiture could be seen as punishment.”[24†L61-L69] After Austin, any complete forfeiture imposed by the government as punishment for an offense – whether as part of a criminal sentence or in a civil action – falls within the ambit of the Excessive Fines Clause. This marked a significant doctrinal development, making clear that forfeiture of property is limited by proportionality just as conventional fines are.

It is important to note, however, that purely remedial forfeitures (for example, confiscating contraband or recovering the exact amount of illicit proceeds) may fall outside the Clause because they are not considered punitive “fines.” The line can be blurry, but Austin instructs courts to look at the purpose of the forfeiture statute: if it focuses on the owner’s wrongdoing and exacts more than compensation for a loss, it is at least partially punitive and triggers Eighth Amendment scrutiny.[24†L61-L69] Thus, when the government seeks complete forfeiture of valuable property untethered to purely compensatory aims, the Excessive Fines Clause serves as a vital check.

II. Supreme Court Framework:  Bajakajian and the Gross Disproportionality Standard

After Austin established that the Excessive Fines Clause can restrain forfeitures, a key question remained: how to determine when a fine or forfeiture is “excessive.” The Supreme Court provided guidance in United States v. Bajakajian, 524 U.S. 321 (1998) – the first case in which the Court struck down a punitive forfeiture as unconstitutional. Bajakajianinvolved a complete forfeiture of $357,144 in currency. The defendant, Hosep Bajakajian, failed to report this money to customs when attempting to take it out of the United States, violating a federal law that required declaring currency over $10,000. The government sought to forfeit the entire sum under a statute authorizing forfeiture of any property “involved in” the offense. The trial court found this total forfeiture grossly disproportionate – noting that the money was legally earned, intended to pay a lawful debt, and unrelated to other crimes – and instead ordered a forfeiture of $15,000 (alongside a $5,000 fine and probation). The Ninth Circuit on appeal held that the Excessive Fines Clause imposes a two-pronged test requiring that (1) the property be an “instrumentality” of the offense and (2) the amount of the forfeiture be proportional to the offense.[17†L83-L91] Because Bajakajian’s crime was simply failing to report (a reporting offense not intrinsically tied to the money itself), the appellate court found the currency was not an instrumentality of the crime and thus any forfeiture of it would violate the Clause.

The Supreme Court affirmed the result (invalidating the full $357,144 forfeiture), but it articulated a different standard – one focused primarily on proportionality rather than a rigid instrumentality requirement. Justice Clarence Thomas, writing for the majority, declared: “A punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the offense that it is designed to punish.” This pronouncement established “gross disproportionality” as the touchstone for Excessive Fines analysis in the forfeiture context, aligning the doctrine with the Court’s Eighth Amendment jurisprudence on cruel and unusual punishments (where only extreme disproportionality violates the Constitution). The Court emphasized two considerations guiding this deferential standard: (1) deference to Congress – judgments about appropriate punishment are principally for the legislature to make, and (2) the imprecision of comparing offenses to penalties – there is no exact formula for determining the “gravity” of a crime. These considerations, the Court explained, counsel against courts requiring strict proportionality between a crime and a fine. Instead, only a grossly disproportionate sanction will breach the constitutional line.

Applying that standard, the Bajakajian Court held that full forfeiture of the $357,144 would indeed be “grossly disproportional” to Bajakajian’s offense.[19†L265-L273][19†L273-L281] Several factors drove this conclusion. First, the nature of the offense was essentially technical: “His crime was solely a reporting offense. It was permissible to transport the currency out of the country so long as he reported it.”[19†L265-L273] The failure to report did not make the money itself illegal to possess. Second, the defendant’s culpability was limited and the offense was unrelated to other criminal activity. The courts found (and the government conceded) that the funds were not connected to any additional crime like drug trafficking or money laundering; Bajakajian was transporting the money to pay a lawful debt, and there was no fraud or misrepresentation involved beyond the omission of the customs report.[19†L269-L277][19†L273-L281] He did not fit the profile of offenders Congress was targeting with the forfeiture law (e.g. money launderers, drug kingpins, or tax evaders).[19†L269-L277] Third, the penalty was wildly out of proportion to the legal penalties available for such an offense. Notably, the Sentencing Guidelines recommended at most a $5,000 fine and six months in prison, reflecting the offense’s relative mildness, yet the government sought to take over $350,000 – an amount “dwarfed” by the punishment Congress generally prescribed.[19†L273-L281] Finally, the harm caused by the offense was minimal: the only harm was to the government’s interest in information, and even that harm was slight since no tax or duty was evaded.[19†L273-L281] Failing to file a currency report caused no direct loss to the public fisc or specific victim; as the Court observed, had the violation gone undetected, “the Government would have been deprived only of the information that $357,144 had left the country.”[19†L273-L281] There was thus “no articulable correlation” between the hefty sum and any harm or costs to the government.[19†L273-L281]

In sum, the Supreme Court in Bajakajian found the complete forfeiture in that case unconstitutional because the penalty’s severity was vastly out of proportion to the offense’s gravity. The decision clarified that proportionality – in a broad, gross sense – is the measure of an excessive fine, and it rejected a rigid “instrumentality” rule as a constitutional prerequisite. (The Court noted that the in rem forfeiture cases historically often involved instrumentality or contraband, but here, since the forfeiture was part of the defendant’s criminal punishment, the focus would be on proportionality alone.[19†L240-L248]) However, instrumentality can still enter the analysis as one factor in assessing the relationship between the property and the offense. After Bajakajian, any punitive forfeiture – whether it be a sum of money, real property, or personal property – must pass the gross disproportionality test: the amount forfeited cannot be grossly out of balance with the offense. If it is, it violates the Eighth Amendment.

Notably, Bajakajian was a 5-4 decision, and the dissenting Justices advocated a more government-friendly view (arguing, in essence, that the majority’s proportionality review was too intrusive on legislative power). In the years since, this divide has manifested in how lower courts interpret and apply the ruling – an issue we explore in Part IV. First, though, we examine in more detail how courts determine whether a complete forfeiture is “grossly disproportional” in practice, including the factors considered and the open questions that remain.

III. Assessing Excessiveness: Gross Disproportionality and Relevant Factors

“Grossly Disproportional” in Context: The Eighth Amendment proportionality inquiry is inherently fact-specific and multifaceted. The Supreme Court in Bajakajian did not lay out a rigid formula, but the opinion (and other courts’ applications of it) highlight several key factors that guide the analysis of whether a forfeiture is excessive in relation to the offense. In general, courts undertaking this analysis weigh the severity of the forfeiture against the gravity of the offense, considering factors such as:

• Nature and seriousness of the offense: Courts look to the type of crime and its severity. Is the offense merely a regulatory or reporting violation, or is it an inherently dangerous or pernicious crime (e.g. a drug trafficking, fraud, or a crime of violence)? Offenses that are more grave or pose greater social harm can justify more severe economic penalties. In Bajakajian, this factor cut in the defendant’s favor because the offense was a reporting omission – one of the less serious felonies on the books.[19†L265-L273] Conversely, for a serious drug distribution or money laundering offense, forfeiting a large sum or valuable property might appear more proportionate.

• Whether the defendant falls into the class of persons at which the criminal statute was aimed: This somewhat subjective factor asks if the defendant’s conduct is at the core or at the periphery of the evil the law seeks to combat. In Bajakajian, the Court found it relevant that the defendant was not a money launderer or drug trafficker – the archetypal offenders for whom the forfeiture provision was principally designed.[19†L269-L277] He was, rather, a person transporting his own legally obtained money, albeit in violation of the report requirement. That made the full forfeiture seem more like an anomaly than the statute’s intended target.

• Connections between the property and the offense (Instrumentality): While the Supreme Court rejected a formal “instrumentality” prerequisite, the relationship of the property to the crime is still pertinent. If property was an instrumentality of the offense – for example, a vehicle used to transport contraband or a building used to facilitate a drug operation – courts may view its forfeiture as more justified and less likely excessive (since the property itself played a direct role in the crime). On the other hand, if the property is merely incidental or unrelated to the offense, stripping the offender of it appears more punitive and raises Eighth Amendment concern. This is essentially what troubled the Ninth Circuit in Bajakajian: the money was not the instrument or tool of the crime (the crime was failing to file a form).[17†L85-L93] In many civil forfeiture cases (e.g. seizure of a house or car where a small drug transaction occurred), courts will explicitly consider how integrally the property was used in the offense. Lack of a close nexus may tilt toward a finding of excessiveness, though it is not dispositive on its own after Bajakajian.

• Other authorized penalties for the offense: A very practical benchmark for proportionality is to compare the forfeiture’s amount to the monetary penalties and prison sentences authorized by the legislature or under sentencing guidelines for the same offense. This factor reflects deference to legislative judgments about punishment severity. If a forfeiture’s value is in line with (or below) the maximum fine or the guideline range for fines, courts are inclined to presume it is not excessive.[19†L273-L281] If it vastly exceeds those benchmarks, it raises a red flag. In Bajakajian, as noted, the maximum fine under the Guidelines was $5,000, whereas the forfeiture sought was over $350,000 – an enormous disparity indicating excessiveness.[19†L273-L281] Many lower courts explicitly consider the statutory maximum fine or the recommended sentencing range as a gauge. For instance, if a defendant faces up to a $250,000 fine for a crime, a forfeiture of property worth $200,000 would not, on its face, seem grossly disproportionate. But if the forfeiture dwarfs the normal penalty (e.g. seizing a $1 million house for a crime usually fined at $50,000), that invites closer scrutiny.[19†L273-L281]

• Extent of harm caused (or sought to be caused) by the offender: Proportionality has an intuitive connection to the harm of the offense. Economic crimes or regulatory violations that cause little tangible harm typically warrant lesser punishment than crimes causing serious injury or loss. In excessive fines analysis, courts ask: what harm (or potential harm) resulted from the offense, and is the forfeiture amount roughly related to that harm? In Bajakajian, the harm was deemed “minimal” – the government was only deprived of information, and there was no financial loss to anyone.[19†L273-L281] Accordingly, a huge forfeiture couldn’t be justified as remedial or punitive relative to harm. Contrast this with, say, a fraud scheme that stole $300,000 from victims: forfeiting an equivalent amount (or even more, for punitive effect) might be proportional to the harm inflicted. This factor overlaps somewhat with looking at whether the forfeiture is confiscating ill-gotten gains. If the property represents the proceeds of crime, its forfeiture is essentially taking away the fruits of the offense – often considered per se proportional (indeed, some courts view forfeiture of illicit proceeds as non-punitive, akin to returning the status quo, and therefore not subject to an excessiveness challenge at all).[19†L284-L293] On the other hand, when the property is legitimately acquired and only incidentally involved, forfeiture serves purely punitive goals and the lack of harm weighs against its magnitude.[19†L273-L281]

• The offender’s personal circumstances and culpability: Although ability to pay is not typically a decisive constitutional factor (the Excessive Fines Clause is mostly offense-focused, unlike some due process concerns about indigency), courts sometimes acknowledge if a forfeiture would be unduly harsh in light of the offender’s situation. For example, if a forfeiture would effectively deprive the defendant of their livelihood or basic property, some judges have noted that as a consideration in the proportionality mix. The Supreme Court itself in Bajakajianmentioned the defendant’s personal story (an immigrant with distrust of government based on experiences) in passing,[25†L92-L100] though it wasn’t a core factor. The focus remains on culpability – e.g., was the offender a minor participant or first-time offender, or a repeat and willful violator? Lower culpability can tip the scales toward finding a severe forfeiture excessive.[25†L92-L100][25†L100-L104] In short, punishment should fit not only the crime but the criminal, and a punishment grossly exceeding what is merited for a particular defendant’s conduct may violate the Clause.

These factors are often applied holistically rather than as a rigid checklist. Different circuits sometimes articulate them in slightly varying ways. For instance, the First Circuit in United States v. Jose enumerated factors such as whether the forfeiture statute was principally punitive, the maximum penalties authorized, and the harm caused by the defendant.[20†L95-L100] In Jose, a case involving bulk cash smuggling similar to Bajakajian, the First Circuit upheld the forfeiture of $114,948 in currency as not excessive, emphasizing that Congress (after Bajakajian) had specifically made bulk cash smuggling a separate offense with forfeiture as a penalty, and finding that amount not grossly disproportional in light of the legislative intent and harm of smuggling large sums.[20†L91-L100] Other circuits have likewise often concluded that forfeiting substantial property can be proportionate for serious crimes (for example, forfeiting a expensive car used to transport narcotics, or significant sums involved in money laundering), especially when the defendant was willfully engaged in felonious conduct.

Procedure and Burden: In federal forfeiture proceedings, Congress has provided a statutory mechanism to ensure Excessive Fines Clause review. Under 18 U.S.C. § 983(g) (part of the Civil Asset Forfeiture Reform Act of 2000), a property owner in a federal civil forfeiture case can petition the court for a determination whether the forfeiture is constitutionally excessive. Notably, the statute places the burden on the claimant (property owner) to prove excessiveness by a preponderance of the evidence.[32†L11-L18] The court must compare the forfeiture’s value to the offense and make a ruling without a jury.[32†L9-L17] This procedure underscores that the default assumption favors the government (and the law’s penalties) unless the defendant can show an obvious mismatch in severity. Placing the burden on the challenger, along with the “gross disproportionality” threshold, makes clear that findings of excessiveness should be relatively rare – reserved for truly extraordinary cases where the forfeiture amounts to an obvious injustice when viewed against the offense.

In practice, since Bajakajian, successful excessive forfeiture challenges have indeed been uncommon. Courts often note that the Clause is violated only in “the rare case.”[25†L73-L81] The high threshold means that as long as the forfeiture does not shock the conscience by being wildly out of proportion to the crime, it will be upheld. Complete forfeiture of property is frequently sustained when the property was significantly involved in the offense or when the offender’s conduct was particularly blameworthy. For example, forfeitures of homes used as drug distribution centers, or of entire bank accounts containing money laundered from fraud, have withstood Eighth Amendment scrutiny on the rationale that such sanctions, though severe, are not grossly disproportional to very serious offenses. On the other hand, when enforcement goes after property of relatively high value in cases of marginal wrongdoing, courts have occasionally intervened. The Bajakajian case itself stands as a leading example, and on the state side (now that the Clause applies to the states), the well-known case of Timbs v. Indiana – involving the attempted forfeiture of a $42,000 Land Rover for a drug sale of a few hundred dollars – illustrates similar concerns in a state-law context. In Timbs, the U.S. Supreme Court in 2019 unanimously held that the Excessive Fines Clause is incorporated by the Fourteenth Amendment and thus applies to state and local forfeitures.[21†L42-L50] The Court in Timbs signaled the importance of guarding against abusive fines and forfeitures by state authorities, in light of rising critiques that such economic sanctions disproportionately impact the poor and pervert law enforcement incentives.[21†L42-L50] On remand, Indiana’s courts applied a Bajakajian-like analysis to determine that forfeiting the vehicle would indeed be grossly disproportionate to Timbs’s offense (a relatively small drug transaction by a first-time offender).

Summary of the Standard: To summarize, under federal law a complete forfeiture violates the Excessive Fines Clause only if, after weighing all the circumstances, the forfeiture is grossly out of proportion to the offense. This is a stringent standard: courts must accord substantial deference to Congress’s chosen penalties and recognize that proportionality judgments are not exact.[19†L250-L258] The analysis is not purely mechanical – it involves a qualitative judgmentinformed by factors like the offense’s seriousness, the offender’s role and intent, the harm caused, the property’s role, and the comparison of the forfeiture’s magnitude to the penalty framework for that offense.[25†L92-L100][25†L100-L104] If upon consideration of these factors the forfeiture “shocks the conscience” or, in the Court’s phrasing, has only an attenuated relationship to the offense’s gravity, then it crosses the constitutional line. Otherwise, it will be upheld even if it is harsh. As the next section shows, lower courts have generally been reluctant to find forfeitures excessive, often interpreting Bajakajian in a narrow fashion that favors enforcement.

IV. Doctrinal Developments and Lower Court Applications Post-Bajakajian

In the quarter-century since Bajakajian, the promise of a robust check on excessive economic sanctions has largely been restrained by the approach of the federal courts. A recent empirical review of federal appellate decisions concluded that “at practically every turn, the circuit courts have adopted narrowing interpretations of Bajakajian”, to the point that the outcomes often “more closely resemble the dissenting… opinion in Bajakajian” than the majority’s.[2†L47-L55] Several trends in the case law illustrate this narrowing:

• Great deference to legislatively mandated forfeitures: If Congress has prescribed forfeiture for a particular offense, courts are extremely hesitant to override that judgment. One striking example is Congress’s response to Bajakajian itself. In 2001, Congress enacted 31 U.S.C. § 5332, creating a new offense of bulk cash smuggling with a penalty of forfeiture of “any property, real or personal, involved in the offense.” This effectively mandated complete forfeiture of unreported cash in such cases.[20†L91-L99] When this law was later applied to offenders like Mr. Jose (in the First Circuit case mentioned earlier), courts upheld full forfeitures by emphasizing Congress’s clear intent and viewing the gravity of smuggling cash (often tied to criminal enterprises) as substantial.[20†L95-L100] In other words, after Bajakajian, the legislature adjusted the law, and courts have largely acquiesced, rarely second-guessing the proportionality of forfeitures under the new regime. This exemplifies a pattern: if the forfeiture amount is within the limits set by statute or the Sentencing Guidelines, most courts presume it is constitutional. The judiciary thus often uses the statutory maximum fine or recommended fine as a safe harbor. Only when a forfeiture goes beyond those benchmarks (as in Bajakajian, where it exceeded the Guideline fine by a factor of 70+) do courts seriously entertain an excessiveness challenge.

• Characterizing forfeitures as remedial or as tied to wrongdoing: Another way circuits have cabined the Excessive Fines Clause is by distinguishing types of forfeiture. Many courts hold that forfeiture of proceeds of crime can never be excessive, since taking away ill-gotten gains merely deprives the offender of unjust enrichment (and arguably isn’t “punishment” so much as restoration of the status quo). Likewise, forfeiture of contraband(e.g. illegal drugs, unregistered firearms) is considered inherently non-punitive – one cannot have a right to keep contraband. By classifying a forfeiture as purely remedial or as an “in rem” action against dangerous property, courts avoid the Eighth Amendment analysis entirely. For example, if a fraudster must forfeit $1 million that he swindled, courts will say this is the disgorgement of proceeds, not a fine – hence no issue of excessiveness even if that sum is large. However, this reasoning has its limits; many forfeitures involve property that is partly legitimate or serves other purposes (like a legitimate home that was also the site of a drug sale). In those cases, the forfeiture is clearly punitive in part, and the Clause applies. Still, by carving out proceeds and contraband, a significant subset of forfeiture cases are effectively immunized from Excessive Fines scrutiny in the lower courts.[19†L284-L293] The Supreme Court in Bajakajian acknowledged that historically, forfeitures of goods to recover customs revenue or other government loss were seen as remedial, not punishment.[19†L284-L293] Lower courts continue to invoke that principle to uphold full forfeitures that align with making the government whole or taking away a criminal’s profits.

• Stringent application of “gross” disproportionality: Even when courts do undertake a proportionality review, they often set an exceedingly high threshold for what counts as “grossly” disproportional. Some courts have analogized the standard to the one used for cruel and unusual punishment claims involving prison terms: only a penalty that is so extreme as to be nearly arbitrary or shocking will violate the Eighth Amendment. For instance, the Fourth Circuit remarked that the forfeiture must be “so grossly disproportionate that it shocks the conscience of the court” to be unconstitutional – a test that is rarely met in practice. In consequence, many economic sanctions pass muster. For example, the Ninth Circuit (which had initially championed the instrumentality requirement in Bajakajian) post-Bajakajian has upheld large forfeitures in drug cases by highlighting the serious nature of the crimes and deferring to Congress’s authorization of forfeiture penalties. The Eleventh Circuit and others have similarly rarely found a fine excessive unless it had an extraordinary fact pattern akin to Bajakajian. The dissent’s influence that Professor O’Hear noted[2†L47-L55] can be seen in decisions that prioritize the punishment’s conformity with legislative intent and a willingness to uphold any penalty short of a patent absurdity. In effect, lower courts often require a manifest imbalance (such as a forfeiture hundreds of times greater than the harm or statutory fine) before intervening.

• Burden on defendants and procedural hurdles: The implementation of § 983(g) (noted above) means that in civil forfeiture cases, the property owner must take the initiative to raise excessiveness and must marshal evidence about the relationship between the forfeiture and the offense. If the owner fails to raise the issue or prove it, courts will not on their own reduce a forfeiture. This procedural posture has likely contributed to few successful challenges – many defendants may not contest excessiveness (perhaps due to lack of resources or counsel), and even when they do, meeting the burden of proof can be difficult. The statute explicitly requires proof by preponderance that the forfeiture is grossly disproportional,[32†L11-L18] underscoring that reasonable minds might differ but the challenger must convince the court that this is one of those extreme cases. Additionally, no jury is involved,[32†L9-L17] meaning the matter is in the judge’s hands, and judges have tended to align with the prevailing narrow view of the Clause’s reach.

• Rare instances of relief: Although uncommon, there have been a few instances where courts found a forfeiture excessive. Aside from Bajakajian itself, one could point to certain state court decisions (after Timbs) or unique fact scenarios. For example, a federal district court might find that forfeiting a family’s home for a small-time drug offense by one family member is unconstitutional where the home’s value is enormously disproportional and the impact on innocent family members would be severe (some courts consider the impact on innocent owners under the Eighth Amendment or under an “innocent owner” defense statutorily). But these cases are outliers. On the whole, the federal courts have rendered the Excessive Fines Clause a largely theoretical protection in forfeiture cases, intervening only in the most egregious situations.[2†L47-L55] Critics argue that this approach has negated much of the Clause’s practical significance,[2†L47-L55] permitting aggressive forfeiture practices to continue with little judicial check. Indeed, the trend in appellate case law often mirrors the fears of the Bajakajiandissent – that courts would be too eager to find any plausible justification to uphold forfeitures due to deference, thereby seldom using the Clause to strike down penalties.

Incorporation and State Practices: With the incorporation of the Excessive Fines Clause in Timbs v. Indiana (2019)[21†L42-L50] there was speculation that state courts might develop a more robust excessiveness review, potentially reinvigorating the Clause’s protections where the federal courts had been “anemic.” The Timbs decision came amid public concern over civil asset forfeiture abuses, where authorities seize property often from individuals not even convicted of crimes. The Supreme Court’s language in Timbs acknowledged the Excessive Fines Clause’s role in curbing government overreach and protecting individuals from fines that could undermine economic security.[21†L42-L50] However, early studies (such as O’Hear’s scholarship) suggest that most state courts have so far followed the federal courts’ lead in adopting a cautious approach, often deferring to legislatures and finding forfeitures proportionate except in obvious cases.[21†L50-L58] A notable exception is emerging in some jurisdictions (e.g., possibly the State of Washington) that have signaled a willingness to scrutinize heavy fines more closely.[21†L54-L60] For present purposes, the main point is that the federal doctrine – as developed by Austin, Bajakajian, and their progeny – sets the baseline: gross disproportionalityremains the constitutional standard for both federal and state fines.

Conclusion

The federal law of excessive fines, particularly as it concerns complete forfeiture of property, reflects a balance between two fundamental interests: the government’s power to enforce the law through punitive economic sanctions, and the individual’s right to be free from unduly harsh financial punishment. The Eighth Amendment’s Excessive Fines Clause, once dormant, gained new life in the 1990s through Austin and Bajakajian, signaling that even property forfeitures must bear a relationship to the offense’s gravity and cannot be boundless. The Supreme Court established that a punitive forfeiture will violate the Constitution if it is “grossly disproportional to the gravity of the defendant’s offense.”[25†L73-L81] In applying that standard, courts consider multiple factors – the offense’s nature, the penalties authorized, the harm caused, the property’s role, and the offender’s culpability – to judge whether the forfeiture of an entire asset crosses the line from just punishment to unconstitutional excess.[25†L92-L100][25†L100-L104]

In theory, this doctrine provides a meaningful check on forfeiture overreach. In practice, however, the requirement of gross disproportionality and the deference to legislative judgments have made successful challenges quite rare. The lower federal courts have largely hewed to a restrictive view, often upholding complete forfeitures so long as they do not wildly exceed statutory limits or obvious measures of harm.[2†L47-L55] As a result, the Excessive Fines Clause has so far had a limited constraining effect on the broad sweep of modern forfeiture laws – a trend that has prompted commentary about the Clause’s under-enforcement and calls for reinvigoration.[2†L47-L55]

Moving forward, the landscape could evolve. The incorporation of the Clause in Timbs and growing awareness of disproportionate economic sanctions might eventually lead the Supreme Court to revisit how the standard is applied, or lead legislatures to recalibrate penalties to avoid the specter of unconstitutionality. Some have suggested the Court could clarify the test or even adopt a more workable, multi-factored approach that lower courts could enforce more consistently.[2†L51-L57] Others argue that simply reaffirming Bajakajian’s principles in a strong way could prod lower courts to take the Excessive Fines Clause more seriously as a protector of liberty and property rights.[2†L51-L57]

For now, any claimant facing a complete forfeiture must overcome significant hurdles to establish that it is “excessive” under the Eighth Amendment. They must show a truly gross mismatch between the forfeiture and the offense – a rare situation, but not an impossible one, as Bajakajian and a handful of other cases demonstrate. The key takeaway for policymakers is that while the Excessive Fines Clause sets an important outer limit on economic punishments (preventing outlier injustices such as forfeitures that amount to judicial confiscation), it does not forbid vigorous financial penalties per se. Legislatures retain broad discretion to impose even severe fines and forfeitures for serious crimes. The Clause simply requires that punishment by complete forfeiture not be out of all proportion to the offense. Striking that balance remains an ongoing challenge. In an era of widespread forfeiture use, courts and lawmakers must continually ensure that the pursuit of public safety and revenue through property seizures does not eclipse constitutional proportionality. The jurisprudence to date – from Austin and Bajakajian to the present – provides the framework for that endeavor, even as debate continues over whether the framework is being applied robustly enough to fulfill the Excessive Fines Clause’s vital protective role.

Sources

• U.S. Const. amend. VIII (Excessive Fines Clause).

• Austin v. United States, 509 U.S. 602 (1993) (applying Excessive Fines Clause to punitive civil forfeitures).[27†L139-L147][24†L61-L69]

• United States v. Bajakajian, 524 U.S. 321 (1998) (establishing gross disproportionality test and striking down complete forfeiture of $357,144 as excessive).[19†L265-L273][19†L273-L281][25†L92-L100][25†L100-L104]

• Tex. A&M Law Rev., The Excessive Fines Clause in the Federal Courts: A Quarter-Century of Narrowing(Michael O’Hear, 2025) (surveying federal circuit cases and noting narrowing interpretations of Bajakajian).[2†L47-L55]

• Cornell LII, Excessive Fines (Wex Article) (summarizing Bajakajian and factors from lower courts, e.g. United States v. Jose, 1st Cir. 2007).[20†L85-L93][20†L91-L100]

• U.S. DOJ, Criminal Resource Manual § 2218 (discussing 18 U.S.C. § 983(g) procedures for Excessive Fines Clause review in civil forfeiture).[32†L11-L18]

• Timbs v. Indiana, 139 S. Ct. 682 (2019) (incorporating Excessive Fines Clause against the states).[21†L42-L50]

• U.S. Const. Annotated (Congressional Research Service), Excessive Fines Clause (2023) (overview of Clause’s history and application).[25†L73-L81][25†L92-L100][25†L100-L104]