From Austin to Pung: Defining the Excessive Fines Clause in the modern era
Drawing on centuries of warnings, the Framers included the Excessive Fines Clause in the Bill of Rights to protect individuals from unrestrained governments wielding monetary penalties that are wildly disproportionate to the offense committed.
The ink on the Bill of Rights has been dry for over 200 years and yet, unlike free speech, due process, or privacy, the Supreme Court has rarely had the opportunity to address the Excessive Fines Clause.
The lack of judicial attention is not because the issue bears less weight than other protections. For much of the nation’s history, financial penalties were relatively modest and rarely posed the kind of constitutional threat that demanded Supreme Court guidance. As a result, cert petitions raising excessive fines issues were exceedingly rare, and when cases were heard, they were overwhelmingly centered on cruel and unusual punishment.
But that all began to change at the end of the 20th century.
Austin v. United States: When forfeitures become fines
When Austin v. United States made it to the Supreme Court in 1993, the Court finally had the opportunity to address the Excessive Fines Clause.
In 1990, Richard Lyle Austin was charged, and pleaded guilty, with possession of drugs with intent to distribute. In addition to criminal penalties, federal authorities also went after his mobile home and autobody shop in a separate civil forfeiture case. Civil forfeiture allows the government to seize property allegedly tied to drug trafficking under a much lower burden of proof than in a criminal case.
Richard argued that the forfeiture of his property was a violation of the Excessive Fines Clause, as it was punitive and went far beyond what was necessary to address his drug charges. The district court and the Eighth Circuit rejected the Eighth Amendment argument, saying that because the forfeiture was civil, and meant to be remedial rather than punitive, it was not a fine in the constitutional sense of the word and was not beholden to the limitations of the Excessive Fines Clause.
The Supreme Court disagreed, holding that a fine is not reliant on criminal context and does not have to be entirely punitive. Because these types of civil property forfeitures were at least partially punitive, they fell within the scope of Eighth Amendment protections.
United States v. Bajakajian: When fines become excessive
Proportionality is at the heart of the Excessive Fines Clause—any fine imposed on someone must be proportioned to the action committed. This principle was put to the test in United States v. Bajakajian.
In 1994, Hosep Bajakajian was stopped at LAX with $357,144 in cash while traveling to Cyprus. The government conceded that the money was not illegally obtained or intended for any illegal use, and that Hosep’s only offense was failing to file the paperwork required for travelers carrying more than $10,000. Yet, the federal government still sought to confiscate every dollar.
Hosep argued that the Excessive Fines Clause barred the federal government from imposing a penalty far beyond what the law recommended for failing to declare his cash. The Supreme Court agreed. In a 5–4 decision, the justices held that seizing the full $357,144 would be “grossly disproportional” to his reporting offense.
Bajakajian established the “gross disproportionality” test—the Court’s first modern Excessive Fines framework for evaluating Excessive Fines claims. Today, Bajakajian remains the only case where the Supreme Court struck down a monetary penalty as unconstitutional under the Excessive Fines Clause.
Timbs v. Indiana: When the Excessive Fines Clause applies to the states
In 2013, Tyson Timbs pled guilty after he was charged with selling $250 of heroin to undercover officers. He was subsequently sentenced to home detention, probation, and court fines, all of which he completed. But Indiana still came after more.
Tyson’s father had recently passed, and he used the life insurance money to buy a $42,000 Land Rover. Indiana moved to seize the vehicle through civil asset forfeiture, the same kind of forfeiture the Court addressed in Austin.
The trial court struck down Indiana’s attempt to take Tyson’s $42,000 Land Rover as excessive and disproportionate to his offense. The Indiana Court of Appeals agreed. But when the case reached the Indiana Supreme Court, the justices reversed—not because they found the forfeiture proportional, but because they held that the Excessive Fines Clause did not apply to the states at all.
The case reached the Supreme Court, where the justices unanimously agreed that the Excessive Fines Clause applies to the states through the Fourteenth Amendment. Justice Ruth Bader Ginsburg underscored the point, calling the protection “fundamental to our scheme of ordered liberty.” The case then returned to the lower courts, which ultimately held that Indiana’s forfeiture of the vehicle was excessive and unconstitutional.
Tyler v. Hennepin County: When the government takes more than it’s owed
By the time the Supreme Court decided Timbs, the modern Excessive Fines framework was finally taking shape. But one major question still lingered—how these protections apply outside the familiar context of drug forfeiture and traditional criminal fines, especially in the growing world of government-administered economic penalties.
That question came into focus in Pacific Legal Foundation’s 2023 case, Tyler v. Hennepin County. Geraldine Tyler, a 94-year-old grandmother from Minnesota, lost her home—and all its equity—after the County took it to satisfy an unpaid property tax bill. Geraldine’s tax debt began as roughly $2,000 and grew to about $15,000 with interest and fees. But it was still far less than the value of her home. Even so, the County sold the property for $40,000 and kept every cent.
PLF argued that this was unconstitutional under the Fifth Amendment Takings Clause because while the government may collect what it is owed, it cannot take more. PLF also raised a separate issue: Taking the surplus value above and beyond any amount owed looks a lot like punishment, raising serious concerns under the Excessive Fines Clause.
The Court ruled unanimously in Geraldine’s favor under the Takings Clause, holding that the government cannot take more than it is owed. The Court declined to reach the Excessive Fines question. But in a concurring opinion, Justice Neil Gorsuch, joined by Justice Ketanji Jackson, emphasized that when the government imposes economic penalties that serve—even in part—to punish, they can be “fines by any other name,” and the Constitution prohibits them from being excessive.
History will rightly remember Tyler as a landmark Fifth Amendment case. But it also raised some important Eighth Amendment issues that could potentially be addressed in PLF’s upcoming Supreme Court case, Pung v. Isabella County.
Pung v. Isabella County: When ‘just compensation’ isn’t just at all
Since 2010, Mike Pung has been in a legal battle with Isabella County, Michigan. After the death of his nephew, Timothy “Scott” Pung, in 2005, Mike began managing the estate, which includes the home Scott purchased in 1991. Scott’s son, Marc, resided in the home with his wife and young son.
State law said that so long as the beneficiaries of Scott’s estate resided in the house, as Marc did, the property was exempt from a supplementary property tax. But the County retroactively denied the exemption, claiming that Marc was required to fill out new paperwork to continue his late father’s prior exemption. A tedious legal battle ensued.
Before the legal matter was officially resolved, the County seized the Scott Pung home—worth nearly $200,000—and sold it for just $76,000 to satisfy a disputed $2,200 debt he allegedly owed to satisfy the supplementary property tax.
The County kept every cent. Ultimately, thanks to another Pacific Legal Foundation precedent-setting case, the Michigan Court of Appeals ruled that the County had committed an unconstitutional taking and ordered the $73,766 surplus to be returned to Mike.
But here’s what makes this case even more dangerous than typical home-equity theft.
The County sold the nearly $200,000 property at auction for a fire-sale price of $76,000. The County concedes the home’s actual value. Yet when Mike sued the County for taking more than it was owed, the trial court ordered officials to return only the surplus from the artificially low sale price—not the home’s true value. This is important.
In Tyler, the Supreme Court made clear that when the government takes a home to satisfy a tax debt, the Fifth Amendment requires them to return the surplus as “just compensation.” In regard to real property, “just compensation” has always been understood to mean fair market value. In Tyler, no one disputed the value of the home, so fair market value wasn’t at play. The same cannot be said for Pung, where Mike received far below fair market value.
If counties can evade the Fifth Amendment just by undervaluing the property at auction, then Tyler’s protections—that individuals are guaranteed the right to just compensation if governments take property to satisfy a debt—evaporate.
When the government takes title in a tax foreclosure, the owner is still owed the surplus value of their property—measured by fair market value at the time the government takes title, not a distressed auction price. Under certain circumstances, an auction might produce that fair market value, but it almost certainly will not when a high-value property is sold at a distress sale to cover a minimal debt, leaving lots of equity on the table.
Wasting equity worth more than 50 times the amount allegedly due is punitive and is the kind of abuse the Excessive Fines Clause was written to prevent.
Fortunately, modern Excessive Fines Clause rulings have laid the foundation for the upcoming Pung case. Austin made clear that forfeitures can trigger the Eighth Amendment when they serve—even in part—as punishment. Bajakajian supplied the measuring stick, holding that penalties become unconstitutional when they are “grossly disproportional” to the offense. Timbs confirmed that these protections apply not just to the federal government, but to states and counties too.
A win in Pung won’t just strengthen the Excessive Fines Clause—it will move us closer to ending home equity theft for good, while reinforcing the principle Tyler made clear: The government may take what it is owed, but no more.
