Amicus Curiae Brief — Kenneth J. Jouppi, Petitioner v. Alaska

No. 25-246

In the Supreme Court of the United States

__________

KENNETH JOHN JOUPPI,

Petitioner,

v.

STATE OF ALASKA,

Respondent.

__________

On Writ of Certiorari to the Supreme Court of Alaska

__________

BRIEF OF THE CATO INSTITUTE AND

FINES AND FEES JUSTICE CENTER AS

AMICI CURIAE IN SUPPORT OF PETITIONER

__________

FINES AND FEES JUSTICE

CENTER

185 W. Broadway, C-538

New York, NY 10013

Dated: September 10, 2026

Matthew P. Cavedon

Counsel of Record

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(706) 309-2859

mcavedon@cato.org

i

QUESTION PRESENTED

Whether, in determining whether a fine

contravenes the Excessive Fines Clause, courts may

consider the gravity of the underlying offense purely

in the abstract or should consider the gravity of the

specific defendant’s wrongdoing.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

TABLE OF CONTENTS.............................................. ii

TABLE OF AUTHORITIES ....................................... iv

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 5

I.

ALASKA’S ABSTRACT STANDARD FOR

EXCESSIVENESS CONTRAVENES THE

EIGHTH AMENDMENT’S ORIGINAL

MEANING.......................................................... 5

A. The Excessive Fines Clause

reflects ancient legal protections. ............. 5

B. Excessiveness was originally

determined with reference to the

individual defendant’s conduct. .................. 7

C. Alaska’s standard departs from the

Excessive Fines Clause’s original

meaning. ..................................................... 9

II. THIS COURT SHOULD OUTLINE A

CLEAR EXCESSIVENESS

STANDARD. .................................................. 10

A. Proportionality to the gravity of the

offense must be based on the

defendant’s actual conduct, not

theoretical or potential harms. ................. 11

iii

B. The standard for assessing personal

economic circumstances should be

whether the fine leaves one unable to

care for oneself or one’s family. .................. 14

III. CIVIL FORFEITURE, IN

PARTICULAR, PRIORITIZES PROFIT

OVER PUBLIC SAFETY. .............................. 18

CONCLUSION .......................................................... 22

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. United States, 509 U.S. 544

(1993) ...................................................................... 12

Austin v. United States, 509 U.S. 602 (1993)...... 12, 13

Browning-Ferris Indus. v. Kelco Disposal,

Inc., 492 U.S. 257 (1989) ........ 3, 5, 6, 7, 8, 11, 12, 16

Commonwealth v. 1997 Chevrolet, 160 A.3d

153 (Pa. 2017) ......................................................... 13

Commonwealth v. Morrison, 9 Ky. 75, 99

(1819) ........................................................................ 4

Harmelin v. Michigan, 501 U.S. 957 (1991) ............. 18

Jouppi v. State, 566 P.3d 943 (Alaska 2025) ............ 16

N.Y. State Rifle & Pistol Ass’n v. Bruen, 597

U.S. 1 (2022) ....................................................... 8, 14

Pimentel v. City of Los Angeles, 115 F.4th

1062 (9th Cir. 2024) ............................................... 15

Sessions v. Dimaya, 584 U.S. 148 (2018) .................. 22

State v. Real Prop., 994 P.2d 1254 (Utah

2000) ....................................................................... 13

State v. Timbs, 134 N.E.3d 12 (Ind. 2019) .... 13, 17, 18

Timbs v. Indiana, 586 U.S. 146 (2019)

.............................. 3, 4, 6, 7, 8, 11, 12, 14, 16, 17, 18

United States v. 6625 Zumirez Drive, 845 F.

Supp. 725 (C.D. Cal. 1994)..................................... 22

United States v. 817 N.E. 29th Drive,

175 F.3d 1304 (11th Cir. 1999) .......................... 9, 14

v

United States v. Bajakajian, 524 U.S. 321

(1998) .................................. 4, 6, 8, 10, 11, 12, 14, 16

United States v. Bikundi, 926 F.3d 761

(D.C. Cir. 2019) ...................................................... 15

United States v. Carpenter, 317 F.3d 618

(6th Cir. 2003) ........................................................ 13

United States v. Levesque, 546 F.3d 78

(1st Cir. 2008) ......................................................... 15

United States v. Smith, 656 F.3d 821

(8th Cir. 2011) ........................................................ 15

United States v. Wagoner Cnty. Real Est.,

278 F.3d 1091 (10th Cir. 2002) .............................. 13

Weems v. United States, 217 U.S. 349 (1910) ............. 7

Other Authorities

Beth A. Colgan & Nicholas M. McLean,

Financial Hardship and the Excessive Fines

Clause: Assessing the Severity of Property

Forfeitures after Timbs, 129 YALE L.J. F.

430 (2020) ................................................................. 6

Beth A. Colgan, Reviving the Excessive Fines

Clause, 102 CALIF. L. REV. 277 (2014)

.................................................................. 4, 9, 10, 11

Brian D. Kelly, Fighting Crime or Raising

Revenue? Testing Opposing Views of

Forfeiture, INST. FOR JUST. (2019) .......................... 20

Celine McNicholas et al., Civil Monetary

Penalties for Labor Violations are Woefully

Insufficient to Protect Workers, ECON. POL’Y

INST. (July 15, 2021) ........................................ 20, 21

vi

David J. Fried, Rationalizing Criminal

Forfeiture, 79 J. CRIM. L. & CRIMINOLOGY

328 (1988) ............................................................... 22

David Pimentel, Forfeitures and the Eighth

Amendment: A Practical Approach to the

Excessive Fines Clause as a Check on

Government Seizures, 11 HARV. L. & POL’Y

REV. 541 (2017) ............................................ 5, 13, 20

DEP’T OF LAB., FY 2027 BUDGET IN BRIEF

(2026) ...................................................................... 21

John T. Holden, Exploring the “Excess” in

Excessive: Reimagining the Eighth

Amendment’s Excessive Fines Clause in the

Wake of Stars Interactive, 65 ARIZ. L. REV.

877 (2023) ............................................................. 6, 7

Lisa Knepper et al., Policing for Profit: The

Abuse of Civil Asset Forfeiture, INST. FOR

JUST. (4th ed. 2026) .......................................... 19, 20

Lydia Beyoud, SEC Would See Funding Boost

in Biden’s Budget Plan, BLOOMBERG

(Mar. 28, 2022) ....................................................... 21

Margaret Meriwether Cordray, Contempt

Sanctions and the Excessive Fines Clause,

76 N.C. L. REV. 407 (1998) ....................................... 6

Nicholas M. McLean, Livelihood, Ability to

Pay, and the Original Meaning of the

Excessive Fines Clause, 40 HASTINGS

CONST. L.Q. 833 (2013) .................. 7, 8, 9, 11, 16, 17

NOAH WEBSTER, AN AMERICAN DICTIONARY OF

THE ENGLISH LANGUAGE (1828) ............................... 8

vii

Rebecca Goldstein et al., Exploitative

Revenues, Law Enforcement, and the

Quality of Government Services, URB. AFF.

REV. (2018) ............................................................. 20

SEC, FY 2027 CONGRESSIONAL BUDGET

JUSTIFICATION (2026) ............................................. 21

Sonia A. Steinway, SEC “Monetary Penalties

Speak Very Loudly,” But What Do They

Say? A Critical Analysis of the SEC’s New

Enforcement Approach, 124 YALE L.J. 209

(2015) ...................................................................... 21

U.S. DEP’T OF JUST. CIV. RTS. DIV.,

Investigation of the Ferguson Police

Department (2015).................................................. 19

U.S. DEP’T OF JUSTICE, Investigation of the

Lexington Police Department and the City

of Lexington, Mississippi (2024) ............................ 19

Unopposed Mot. for Prelim. Approval of Class

Settlement Agmt., Colman v. Brookside,

No. 2:22-cv-423-AMM

(N.D. Ala. Feb. 26, 2026)........................................ 20

WILLIAM BLACKSTONE, COMMENTARIES ....................... 9

Wilson Ctr. for Sci. & Just. & Fines & Fees

Just. Ctr., Debt Sentence: How Fines and

Fees Hurt Working Families (2023)....................... 18

Yan Slavinskiy, Protecting the Family Home

by Reunderstanding United States v.

Bajakajian, 35 CARDOZO L. REV. 1619

(2014) ...................................................................... 13

Constitutional Provisions

U.S. CONST. amend. VIII ......................................... 3, 5

1

INTEREST OF AMICI CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Project on

Criminal Justice was founded in 1999, and focuses on

the scope of substantive criminal liability, the proper

and effective role of police in their communities, the

protection of constitutional and statutory safeguards

for criminal suspects and defendants, citizen

participation in the criminal justice system, and

accountability for law enforcement.

The Fines and Fees Justice Center (“FFJC”) is a

national center for advocacy, information, and

collaboration on effective solutions to the unjust and

harmful imposition and enforcement of fines and fees

in state and local courts. FFJC’s mission is to create a

justice system that treats individuals fairly, ensures

public safety, and is funded equitably. As a national

hub for information, resources, and technical

assistance on fines and fees, FFJC works with

impacted communities, researchers, advocates,

legislators, justice system stakeholders, and media

across the nation. FFJC also provides amicus curiae

assistance at the state and federal level in cases where

issues of economic justice intersect with state and

constitutional law.

Amici’s interest in this case arises from their

mission to prevent government overreach and ensure

the protection of constitutional rights. The Eighth

1 Rule 37 statement: No part of this brief was authored by any

party’s counsel, and no person or entity other than amici funded

its preparation or submission.

2

Amendment shields individuals from government

abuse by prohibiting excessive fines. That right must

be protected against government infringement.

3

SUMMARY OF ARGUMENT

For the last 14 years, 83-year-old Ken Jouppi has

been trying to prevent the State of Alaska from forfeiting his airplane. Pet. Br. 4–6. Mr. Jouppi is an Air

Force veteran and has been flying charter planes in

Alaska since the 1970s. Id. Alaska has a number of villages and municipalities that are “dry,” where the sale,

importation, and even possession of alcohol is illegal.

Id. at 3–4. Mr. Jouppi agreed to fly a customer to one

of these locales, but the plane was stopped by police

before takeoff—the passenger had packed alcohol in

her luggage and carried three cases of Budweiser and

Bud Light onboard to share with her husband on his

birthday. Id. at 5. Mr. Jouppi was convicted of a misdemeanor, sentenced to the minimum three days in

jail, and ordered to pay a $1,500 fine. Id. at 5–6. But

Alaska also mandates forfeiture of any airplane used

in connection with transporting alcohol to dry villages.

Id. at 4, 6. Hence Mr. Jouppi has been fighting for the

past decade and a half to save his $95,000 plane. Id. at

6.

The Eighth Amendment was designed to prevent

this kind of abuse by limiting excessive fines. U.S.

CONST. amend. VIII. Long before the United States

was founded, the common law protected people from

extreme monetary penalties. See Timbs v. Indiana,

586 U.S. 146, 151 (2019) (“The Excessive Fines Clause

traces its venerable lineage back to at least 1215 . . . .”).

The Framers understood the dangers of such abuse.

See Browning-Ferris Indus. v. Kelco Disposal, Inc., 492

U.S. 257, 267 (1989). But the Alaska Supreme Court’s

view is that challenges to excessive fines “should

rarely succeed.” Pet. App. 18a. This dismissive view

led it to conclude that there is nothing excessive about

4

the forfeiture of an airplane worth “only 9.5 times the

maximum fine”—and over 60 times the fine actually

imposed. Id. at 23a; see Pet. Br. 9. The decision below

cannot be reconciled with this Court’s precedent or the

Excessive Fines Clause’s original meaning.

When evaluating a punishment’s excessiveness,

the common law accounted for the circumstances of

both the conduct at issue and the defendant. From

Magna Carta through William Blackstone’s time, the

“concept of proportionality was far broader than just

that between the punishment and severity of the offense.” Beth A. Colgan, Reviving the Excessive Fines

Clause, 102 CALIF. L. REV. 277, 322 (2014). Early

American courts agreed, holding that fines should be

proportioned “to the offense committed, the situation,

circumstances, and character of the offender.” Commonwealth v. Morrison, 9 Ky. 75, 99 (1819). Only ignoring this history allows courts to routinely impose

excessive fines—as happened in this case. By focusing

on “grave societal harms” rather than individual culpability, Alaska endorsed a fine that is undoubtedly

excessive by common law standards. This Court

should reverse.

Beyond the instant case, this Court should outline

a clear standard for future cases. While this Court has

heard a handful of Excessive Fines Clause cases, only

once has it analyzed excessiveness. See United States

v. Bajakajian, 524 U.S. 321 (1998). On the other occasions, it has left this work to a lower court. See, e.g.,

Timbs, 586 U.S. 146. The absence of a clear standard

has resulted in varied—and often incorrect—multifactor tests that pay little attention to precedent or the

original meaning of the Excessive Fines Clause. This

5

Court should take the present case as an opportunity

to outline a clear, common-law standard.

Failing to do so would leave ordinary people at continued risk of government abuse. The Framers “were

aware . . . of the abuses” that arise when a sovereign

collects fines for improper ends. Browning-Ferris Indus., 492 U.S. at 267. These injustices persist. Billions

of dollars have been generated for governments

through civil and criminal forfeitures. David Pimentel,

Forfeitures and the Eighth Amendment: A Practical

Approach to the Excessive Fines Clause as a Check on

Government Seizures, 11 HARV. L. & POL’Y REV. 541,

549 (2017). Because it is expensive and time-consuming for defendants to challenge forfeitures in court,

successfully asserting Eighth Amendment rights is

difficult—but it shouldn’t be. This Court should reverse the decision below.

ARGUMENT

I.

ALASKA’S

ABSTRACT

STANDARD

FOR

EXCESSIVENESS CONTRAVENES THE EIGHTH

AMENDMENT’S ORIGINAL MEANING.

A.

The Excessive Fines Clause reflects ancient

legal protections.

The Eighth Amendment states: “Excessive bail

shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.” U.S. CONST.

amend. VIII. This provision did not spark much discussion or debate when it was proposed, and “the word

‘fine’ was understood to mean a payment to a sovereign

as punishment for some offense.” Browning-Ferris Indus., 492 U.S. at 265. As this Court’s previous analyses

of the Clause have noted, “[f]reedom from excessive

fines was considered ‘indisputably an ancient right.’”

6

Timbs, 586 U.S. at 163 (Thomas, J., concurring). It

“was so well-entrenched that debate was not deemed

necessary when the Amendment was brought to the

floor of Congress.” John T. Holden, Exploring the “Excess” in Excessive: Reimagining the Eighth Amendment’s Excessive Fines Clause in the Wake of Stars Interactive, 65 ARIZ. L. REV. 877, 892 (2023).

Historical analysis has been central to every decision this Court has made regarding the Excessive

Fines Clause. See Browning-Ferris Indus., 492 U.S. at

264; Bajakajian, 524 U.S. at 335; Beth A. Colgan &

Nicholas M. McLean, Financial Hardship and the Excessive Fines Clause: Assessing the Severity of Property

Forfeitures after Timbs, 129 YALE L.J. F. 430, 434

(2020) (“The Court has repeatedly drawn on the

Clause’s historical roots.”). In Alaska, however, history

has been overlooked, undercutting the protection the

Eighth Amendment affords. This Court should reverse

the decision below to ensure that excessiveness is assessed in the way it was originally meant to be.

Excessive fines have been prohibited as far back as

1215, when Magna Carta constrained King John. See

Timbs, 586 U.S. at 151 (majority op.). Magna Carta required amercements (fines) to “‘be proportioned to the

wrong’ and ‘not so large as to deprive [an offender] of

his livelihood.’” Id. (quoting Browning-Ferris Indus.,

492 U.S. at 271). However, Magna Carta’s promise was

not consistently enforced, and excessive fines were regularly imposed during the reign of the Stuart kings,

who “were criticized for using large fines to raise revenue.” Id. at 152. The English Bill of Rights of 1689 responded to this oppression. See Margaret Meriwether

Cordray, Contempt Sanctions and the Excessive Fines

Clause, 76 N.C. L. REV. 407, 420 (1998).

7

By the time the Eighth Amendment was ratified,

most of the States “had some equivalent of the Excessive Fines Clause . . . in their respective Declarations

of Rights or State Constitutions.” Browning-Ferris Indus., 492 U.S. at 264. The Virginia Declaration of

Rights borrowed heavily from the English Bill of

Rights. Timbs, 586 U.S. at 152. In turn, the language

of the Excessive Fines Clause was adopted verbatim

from the Virginia enactment. See Holden, supra, at

893. Even though the prohibition against excessive

fines was already widespread at the Founding, the

Framers had a thorough “distrust of power, and they

insisted on constitutional limitations against its

abuse.” Weems v. United States, 217 U.S. 349, 372

(1910). The Eighth Amendment was ratified because

they “would take no chances.” Id.

The original meaning of the phrase “excessive fines

was—like the phrase ‘cruel and unusual punishments’—understood to be linked in important ways to

the meaning of analogous legal protections in English

history.” Nicholas M. McLean, Livelihood, Ability to

Pay, and the Original Meaning of the Excessive Fines

Clause, 40 HASTINGS CONST. L.Q. 833, 840 (2013). Relevant to this case, the Eighth Amendment incorporates an excessiveness inquiry tailored to the individual defendant’s conduct and circumstances.

B. Excessiveness was originally determined

with reference to the individual defendant’s

conduct.

Historical context makes it clear that excessiveness

should be determined in relation to the defendant’s circumstances, both in terms of conduct and economic

means. Webster’s 1828 Dictionary supplied several

contemporaneous definitions of “excessive.” In United

8

States v. Bajakajian, this Court cited the first of these:

“beyond the common measure or proportion.” Bajakajian, 524 U.S. at 335. The same dictionary contains a second definition: “beyond the bounds of justice, fitness, propriety, expedience, or utility; as excessive indulgence of any kind.” NOAH WEBSTER, AN

AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE

(1828) (italics omitted);2 see also McLean, supra, at 838

n.14. Notably, the example Webster gives for this second definition is the Eighth Amendment. WEBSTER,

supra. “Fitness” and “propriety” suggest a particularized inquiry.

Legal history does, too. Fines were calculated “according to the quantity of [one’s] trespass.” Timbs, 586

U.S. at 161 (Thomas, J., concurring). Courts took into

account both “the magnitude and manner of th[e] offense,” id. as well as the defendant’s ability to pay.

McLean, supra, at 865. The Clause’s protection

against excessive fines has traditionally included the

right to be free from fines that would deprive an offender of his or her livelihood. Browning-Ferris Indus.,

492 U.S. at 271. Considering the defendant’s ability to

pay is a central aspect of a “long unbroken line of common law precedent” stretching from Magna Carta to

early America and Blackstone. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 35 (2022); see McLean,

supra, at 865–70 (describing how a defendant’s ability

to pay was a common consideration in the colonial era).

Encompassing both the conduct and the defendant, excessiveness accounted for particular circumstances.

Commenting on discretionary fines, Blackstone

noted that the amount “of pecuniary fines neither can,

2 Available at https://tinyurl.com/nhkepzj2.

9

nor ought to be, ascertained by any invariable law.” 4

WILLIAM BLACKSTONE, COMMENTARIES *378. To prevent arbitrary punishment, the amount of a fine “must

frequently vary.” Id. The assessment should consider

“the aggravations or otherwise of the offense, the quality and condition of the parties, and . . . innumerable

other circumstances.” Id. Both Blackstone and Magna

Carta understood proportionality to involve an inquiry

“far broader than just that between the punishment

and severity of the offense.” Colgan, supra, at 322.

Common-law courts considered the characteristics of a

specific violation. Id. Early colonial courts likewise

“did, in practice, tend to take into account individual

characteristics of defendants when determining the

level of fines.” McLean, supra, at 867.

A focus on the defendant and his specific violation

pervaded the common-law understanding of the prohibition against excessive fines.

C. Alaska’s standard departs from the Excessive

Fines Clause’s original meaning.

Alaska is one of several jurisdictions that analyze

excessiveness “in relation to the characteristics of the

offense, not in relation to the characteristics of the offender.” United States v. 817 N.E. 29th Drive, 175 F.3d

1304, 1311 (11th Cir. 1999) (emphasis added). This abstract standard ignores the individual defendant, his

characteristics, and his specific violation, looking instead to social harm caused by offenders in the aggregate. Such a method is incompatible with the way the

common law treated excessive fines—and how the

Framers understood the Eighth Amendment.

To justify forfeiture of Mr. Jouppi’s $95,000 airplane over a sixpack of beer, the Alaska Supreme

10

Court saddled him with all of the “grave societal

harm[s]” that stem from alcohol abuse writ large—including alcoholism, fetal alcohol spectrum disorder,

and death. Pet. App. 24a. It also tied his conduct to

“substantial costs on public health and the administration of justice.” Id. But Mr. Jouppi’s own conduct bears

little relation to these effects. Similarly to the petitioner in a previous case before this Court, who was

not a “money launderer [or] drug trafficker,” Mr.

Jouppi is a senior citizen with “a stellar criminal record. Clean.” Pet. Br. 6; Bajakajian, 524 U.S. at 338.

A $95,000 fine bears little to no resemblance to Mr.

Jouppi’s individual culpability. The decision below attempts to justify it based on harm unrelated to his own

offense. That runs contrary to tradition: “early Americans had an expansive understanding of relevant factors when it came to the fair imposition of fines, including . . . the amount of harm caused.” Colgan, supra, at 324 (emphasis added). Alaska’s standard results in fines that lack particularity and so conflict

with the Excessive Fines Clause’s original meaning.

The Alaska Supreme Court’s deliberate indifference concerning Mr. Jouppi’s own conduct—not to

mention its ahistoric deprivation-of-livelihood analysis (discussed below in Part II.B)—led it to endorse a

forfeiture that would have been deemed unlawfully excessive at the Founding. Its decision should be reversed.

II. THIS COURT SHOULD OUTLINE A CLEAR

EXCESSIVENESS STANDARD.

As this Court clarifies Excessive Fines Clause doctrine, it should recognize that this provision requires a

two-pronged consideration: (1) whether the punitive

11

fine is proportional to the gravity of the person’s actions and, if so, (2) whether the punitive fine is proportional to the person’s ability to pay it without depleting

the ability to care for oneself or loved ones.

This is the same standard courts used to interpret

the Virginia Declaration of Rights, from which the

Eighth Amendment was taken verbatim. See Timbs,

586 U.S. at 164–65 (Thomas, J., concurring). The Virginia legislature ultimately codified this two-step approach, requiring that fines “ought to be according to

the degree of the fault, and saving to the offender his

contenement.” McLean, supra at 869–70 (emphasis

added).

A. Proportionality to the gravity of the

offense must be based on the defendant’s

actual conduct, not theoretical or potential

harms.

Despite the Eighth Amendment’s venerable history, it took more than 200 years for this Court to interpret the Excessive Fines Clause. Browning-Ferris

Indus., 492 U.S. at 265. In the handful of excessive

fines cases it has heard, only once has it discussed excessiveness in detail. Bajakajian, 524 U.S. at 334.

However, “the Bajakajian opinion has resulted in

some confusion.” Colgan, supra, at 321. Lower courts

have created various multifactor tests that depart

from Bajakajian and fail to safeguard against excessive fines. This Court should instruct courts to follow

the common-law approach and analyze excessiveness

in relation to the defendant’s particular culpability

and circumstances.

This Court’s Excessive Fines Clause precedent has

focused largely on what that provision covers rather

12

than on how to apply it. In Browning-Ferris Industries,

this Court held that the Clause does not apply to punitive damage awards in cases between private parties.

Browning-Ferris Indus., 492 U.S. at 260. Later, this

Court held that the Clause applies to in rem civil forfeitures and that in personam criminal forfeitures are

no different from traditional fines. Austin v. United

States, 509 U.S. 602, 604 (1993); Alexander v. United

States, 509 U.S. 544, 588–89 (1993). Most recently, in

Timbs v. Indiana, this Court incorporated the Excessive Fines Clause against the states through the Fourteenth Amendment. Timbs, 586 U.S. at 150 (majority

op.). In each case, this Court declined to consider the

nature of excessiveness.

The one exception came in Bajakajian. There, the

government required a man to forfeit over $350,000

because he failed to report the cash he carried when

leaving the country. Bajakajian, 524 U.S. at 324–25.

The Court’s reasoning focused on his specific violation,

consistent with the Eighth Amendment’s original

meaning. Id. at 336–41 (taking into account the harm

caused by the defendant compared to worst-case offenders like “tax evaders, drug kingpins, or money

launderers”).

But the Bajakajian Court did not clearly articulate

the need to look at individual culpability, and jurisprudential confusion has followed. The Alaska Supreme

Court’s abstract standard for excessiveness flouts Bajakajian. One academic has argued that “the embrace

of individual culpability . . . and a probing inquiry of

excessiveness suggested in Bajakajian have been

abandoned by lower courts.” Yan Slavinskiy, Protecting the Family Home by Reunderstanding United

13

States v. Bajakajian, 35 CARDOZO L. REV. 1619, 1642

(2014) (emphasis added).

Even if this is hyperbole, there is strong evidence

that courts have strayed. They have created a multitude of multifactor tests as they have derived factors

from Bajakajian. See, e.g., State v. Timbs, 134 N.E.3d

12, 26 (Ind. 2019). This has happened despite this

Court expressly declining to adopt a “multifactor test,”

see Austin, 509 U.S. at 622, and Bajakajian itself undertaking a violation-centered analysis. While this

Court “may have hoped that lower courts would sort

out a reasonable and straightforward approach to applying [Bajakajian’s] ‘grossly disproportional’ test,”

they have failed to do so. Pimentel, supra, at 543. The

Tenth Circuit uses a nine-factor test. United States v.

Wagoner Cnty. Real Est., 278 F.3d 1091, 1101 (10th

Cir. 2002). The Sixth Circuit recognizes five factors.

United States v. Carpenter, 317 F.3d 618, 627–28 (6th

Cir. 2003). On remand from this Court, the Indiana

Supreme Court used four factors. Timbs, 134 N.E.3d

at 37. Its holding was largely consistent with the original meaning of the Eighth Amendment and Bajakajian, and Utah and Pennsylvania apply a similar

test. State v. Real Prop., 994 P.2d 1254 (Utah 2000);

Commonwealth v. 1997 Chevrolet, 160 A.3d 153 (Pa.

2017). But the Alaska Supreme Court decision below

uses yet another mélange of factors.

This patchwork of precedent leaves Americans at

risk. In the 15 years after Bajakajian was decided,

“only four courts of appeals applying Bajakajian found

a forfeiture to be excessive.” Pimentel, supra, at 544.

The nation’s courts are supposed to maintain constitutional rights as they were enacted, not develop creative

jurisprudential glosses and regional variations. See

14

Bruen, 597 U.S. at 19 (doing away with lower courts’

innovations in Second Amendment doctrine). Setting a

clear standard will untangle inconsistencies and better protect ordinary people.

The common law provides such a standard, focused

on individual culpability and ability to pay rather than

crime in the abstract.

B. The standard for assessing personal

economic circumstances should be whether

the fine leaves one unable to care for oneself

or one’s family.

Although this Court has never directly held that

economic circumstances are a necessary part of the Excessive Fines Clause standard, it has recognized that

this factor has been a part of the calculation since

Magna Carta. Timbs, 586 U.S. at 151. In Bajakajian,

the Court clearly acknowledged that the historical underpinning of the Clause included a prohibition

against a fine that was so large that it deprived a defendant of “his livelihood.” Bajakajian, 524 U.S. at

335. Yet the Court withheld consideration of how the

fine impacted the petitioner because he had not raised

that issue below and the district court made no factual

findings as to it. Id. at 340 n.15. Moreover, the Court

had already found that the petitioner’s fine was excessive in relation to the offense, so the individualized

economic impact analysis was unnecessary.

As lower courts have struggled to apply Bajakajian, many have refused to consider economic circumstances, misinterpreting Bajakajian as rejecting

their relevance. United States v. 817 N.E. 29th Drive,

175 F.3d 1304, 1311 (11th Cir. 1999) (“The Supreme

Court . . . has made clear that whether a forfeiture is

15

‘excessive’ is determined . . . not by comparing the

amount of the forfeiture to the amount of the owner’s

assets.”); Pimentel v. City of Los Angeles, 115 F.4th

1062, 1072 (9th Cir. 2024) (“We . . . once again decline

to incorporate a means-testing requirement for claims

arising under the Excessive Fines Clause.”); United

States v. Bikundi, 926 F.3d 761, 796 (D.C. Cir. 2019)

(“The Excessive Fines Clause does not make obvious

whether a forfeiture is excessive because a defendant

is unable to pay, and neither the Supreme Court nor

this court has spoken on that issue.”) (internal citations omitted). In each of these instances, the failure

to consider the person’s economic circumstance misunderstands Bajakajian and ignores the clear historical

record indicating that they are a necessary part of the

proportionality calculus.

This Court should not hold merely that courts have

to consider economic circumstances—it should explain

how courts ought to do so. Several lower courts that

have considered the economic circumstances of an individual have done so in a way that strays from the

original public meaning of the Eighth Amendment. At

least two circuit courts, and the Alaska Supreme Court

below, applied Bajakajian’s prohibition on a fine depriving someone of their “livelihood” by asking

whether a fine made the person permanently insolvent

or incapable of working in the future. See United

States v. Levesque, 546 F.3d 78, 85 (1st Cir. 2008) (“a

forfeiture could be so onerous as to deprive a defendant

of his or her future ability to earn a living”); United

States v. Smith, 656 F.3d 821, 828 (8th Cir. 2011)

(“Even if it appears at the time of sentencing that

Smith cannot satisfy the forfeiture in the future, there

is always a possibility that he might legitimately come

into money”); Jouppi v. State, 566 P.3d 943, 958

16

(Alaska 2025) (reasoning that because Mr. Jouppi had

not presented evidence that the forfeiture of his plane

forced him into retirement, he “failed to show that the

forfeiture unconstitutionally burdened his livelihood.”). This is not the standard set by the common

law or the Eighth Amendment.

The original text of Magna Carta was written in

Latin, with legal scholars and courts using a variety of

translations since then. One version of the relevant

provision this Court has previously quoted reads: “A

free man shall not be amerced for a small fault, but

after the manner of the fault; and for a great fault after

the greatness thereof, saving to him his contenement;”

Timbs, 586 U.S. at 160 (Thomas, J., concurring). The

phrase “saving to him his contenement” has often been

retranslated as not depriving someone of his “livelihood.” Browning-Ferris Indus., 492 U.S. at 271; Bajakajian, 524 U.S. at 335. Timbs recognized that the

term “livelihood” (as used in Browning-Ferris Indus.)

was equivalent to what Blackstone described thus: “no

man shall have a larger amercement imposed upon

him, than his circumstances or personal estate will

bear.” Timbs, 586 U.S. at 151 (majority op.) (emphasis

added). This is in line with what jurists have understood the term to mean. Writing in 1711, Thomas Madox pointed to thirteenth-century understandings of

the phrase as meaning, “Saving the maintenance of

himself, his Wife and Children.” McLean, supra at

856–67. Modern legal historian William McKechnie

wrote of this term as leaving a person with enough

money “sufficient for the sustenance of himself and

those dependent on him.” Id. at 855. Wharton’s Law

Lexicon of 1847 defined “contenement” as “that which

is necessary for the support and maintenance of men,

17

agreeably to their several qualities of life.” Id. at 855

n.80.

Additionally, as Justice Thomas noted in Timbs,

the House of Commons under King Charles II determined that the King’s Bench “most notoriously departed from all Rules of Justice and Equality, in the

Imposition of Fines upon Persons convicted of Misdemeanors without any Regard to the Nature of the Offences, or the Ability of the Persons.” Timbs, 586 U.S.

at 162 (Thomas, J., concurring) (emphasis added). On

remand, the Indiana Supreme Court in that case concluded:

To conduct a proportionality analysis

at all, we need to consider the punishment’s magnitude. And the owner’s

economic means—relative to the property’s value—is an appropriate consideration for determining that magnitude. To hold the opposite would generate a new fiction: that taking away the

same piece of property from a billionaire and from someone who owns nothing else punishes each person equally.

Timbs, 134 N.E.3d at 36.

Because the consequences of not paying a fine associated with criminal or traffic offenses are so great,

those who cannot afford to do so often forgo critical

family needs. One study looking at fine and fee debt

over a ten-year period found that 51% of people with

unpaid sanctions had to cut back on multiple essential

needs: 27% reported housing hardship, 35% discussed

their inability to obtain food, and 14% noted reduced

access to medicine or healthcare. Wilson Ctr. for Sci. &

18

Just. & Fines & Fees Just. Ctr., Debt Sentence: How

Fines and Fees Hurt Working Families (2023).3 These

are the kinds of deprivations that the Framers sought

to avoid.

The historical record is clear as to what contenement (and by extension, livelihood) meant: the present

ability to care for oneself and one’s family.

III. CIVIL FORFEITURE, IN PARTICULAR,

PRIORITIZES PROFIT OVER PUBLIC

SAFETY.

The Constitution prohibits excessive fines “[f]or

good reason.” Timbs, 586 U.S. at 153. All fines, including forfeitures and financial penalties imposed by

courts at sentencing, risk improper profiteering by

governments. “Even absent a political motive, fines

may be employed ‘in a measure out of accord with the

penal goals of retribution and deterrence,’ for fines are

a source of revenue, while other forms of punishment

‘cost a State money.’” Timbs, 586 U.S. at 154 (quoting

Harmelin v. Michigan, 501 U.S. 957, 978–79 & n.9

(1991)); see also id. (quoting Harmelin, 501 U.S. at 978

n.9 (“it makes sense to scrutinize governmental action

more closely when the State stands to benefit”)).

Unlike other forms of punishment, civil forfeiture

is “punitive for those whose property is confiscated;

and profitable for the government.” Timbs, 134 N.E.3d

at 21. “Unfortunately, most states and the federal government give law enforcement, both police and prosecutors, a large financial incentive to seize and forfeit

property, whether civilly or criminally. In 32 states

and at the federal level, between 90% and 100% of

3 Available at https://tinyurl.com/vsy7rds5.

19

proceeds go to funds controlled by law enforcement.

Another 12 states award between 45% and 80% to law

enforcement.” Lisa Knepper et al., Policing for Profit:

The Abuse of Civil Asset Forfeiture, INST. FOR JUST., at

13 (4th ed. 2026) (internal citation omitted).4 This creates a perverse incentive for law enforcement to target

crimes they know will result in forfeiture—one left unchecked in the absence of Eighth Amendment safeguards.

Examples abound. The U.S. Department of Justice’s investigation into Ferguson, Missouri, found that

over three years, the amount of the municipal budget

that came from court-ordered fines and fees nearly

doubled while “City and police leadership pressure[d]

officers to write citations, independent of any public

safety need, and rely on citation productivity to fund

the City budget.” U.S. DEP’T OF JUST. CIV. RTS. DIV.,

Investigation of the Ferguson Police Department, at 10

(2015).5 Similarly, in Lexington, Mississippi, the Department found that “revenue from fines increased

more than sevenfold” in just one year—most of the

money going to fund the police department. U.S. DEP’T

OF JUSTICE, Investigation of the Lexington Police Department and the City of Lexington, Mississippi, at 11

(2024).6 In February 2026, the town of Brookside, Alabama admitted that its police department engaged in

an intentional effort to use fines and forfeitures to

raise revenue for the department that “likely interfered with the Town’s obligation to administer justice

equally under law.” Unopposed Mot. for Prelim.

4 Available at https://tinyurl.com/3ncddjw9.

5 Available at https://tinyurl.com/5ewpukn3.

6 Available at https://tinyurl.com/2ymemt89.

20

Approval of Class Settlement Agmt. at 11, Colman v.

Brookside, No. 2:22-cv-423-AMM (N.D. Ala. Feb. 26,

2026).7

Civil forfeiture presents “a conflict of interest, if not

a moral hazard.” Pimentel, supra, at 550. Governments have captured billions of dollars through civil

and criminal forfeiture. Id. Research has found that

“when local budgets are tight, law enforcement agencies may ramp up forfeiture activity.” Knepper et al.,

supra, at 12; see also Brian D. Kelly, Fighting Crime

or Raising Revenue? Testing Opposing Views of Forfeiture, INST. FOR JUST., at 3 (2019).8

Profit incentives have resulted in some law enforcement agencies diverting resources away from “nonfinancial crimes” to “more lucrative drug cases” where

forfeitures are more common and profitable. Id. Researchers have found that a 1% increase in local revenues from fines, fees, and forfeitures is associated with

a 6.1% decrease in the violent crime clearance rate and

an 8.3% decrease in the property crime clearance rate.

Rebecca Goldstein et al., Exploitative Revenues, Law

Enforcement, and the Quality of Government Services,

URB. AFF. REV., at 4 (2018).9

The highest-netting civil forfeitures almost always

involve corporate or financial regulations. Celine

McNicholas et al., Civil Monetary Penalties for Labor

Violations are Woefully Insufficient to Protect Workers,

ECON. POL’Y INST. (July 15, 2021).10 Civil penalties for

7 Available at https://tinyurl.com/n885e359.

8 Available at https://tinyurl.com/vte23wc4.

9 Available at https://tinyurl.com/2pdu68jm.

10 Available at https://tinyurl.com/2f5axy6p.

21

violations under the Consumer Financial Protection

Act “stretch well into the millions of dollars,” whereas

the “maximum penalty for a standard OSHA violation

is well below 1% of the maximum insider trading penalty.” Id. As a result, the government puts more resources toward collecting financial and corporate civil

penalties rather than less-profitable civil penalties

stemming from employment and safety regulations.

See generally Lydia Beyoud, SEC Would See Funding

Boost in Biden’s Budget Plan, BLOOMBERG (Mar. 28,

2022).11 In 2026, the SEC’s enforcement budget was

$607 million while OSHA’s enforcement budget was

just $243 million. Compare SEC, FY 2027 CONGRESSIONAL BUDGET JUSTIFICATION 8 (2026) (hereinafter

“SEC BUDGET”), and DEP’T OF LAB., FY 2027 BUDGET

IN BRIEF 27 (2026). In justifying its request for a larger

enforcement budget in 2027, the SEC pointed to its

success in obtaining monetary penalties and other relief in 85 percent of its enforcement actions. SEC

BUDGET, supra, at 8, 47. The more money agencies collect, the bigger their budgets. They “select targets not

because they are the worst violators, but for improper

reasons such as agency or individual self-aggrandizement.” Sonia A. Steinway, SEC “Monetary Penalties

Speak Very Loudly,” But What Do They Say? A Critical

Analysis of the SEC’s New Enforcement Approach, 124

YALE L.J. 209, 224 (2015).

Forfeiture distorts all levels of the criminal process.

“The dollar value of forfeited property becomes a convenient way to measure the success of enforcement efforts in general and to distinguish between the performance of individual officers.” David J. Fried,

11 Available at https://tinyurl.com/ycket6yb.

22

Rationalizing Criminal Forfeiture, 79 J. CRIM. L. &

CRIMINOLOGY 328, 362 (1988). Prosecutors are not immune to this in making charging decisions—even

though “the appearance of distortion” in this context is

“intolerable.” Id. at 365. As long as the Excessive Fines

Clause is not consistently enforced, the government

has “an incentive to investigate criminal activity in situations involving valuable property” while ignoring

crimes that do not “provide financial gain.” United

States v. 6625 Zumirez Drive, 845 F. Supp. 725, 735

(C.D. Cal. 1994).

Forfeiture leads law enforcement to engage in privateering instead of public safety. It is “routinely imposed and . . . routinely graver than [the] associated . . . misdemeanor crimes.” Sessions v. Dimaya,

584 U.S. 148, 184 (2018) (Gorsuch, J., concurring). The

Eighth Amendment should check this kind of abuse—

whereas the standard followed by Alaska and other jurisdictions effectively neutralizes it.

CONCLUSION

Rejecting the abstract excessiveness standard applied below, and setting out the common-law one that

should govern in its place, will help protect Americans’

vehicles, homes, and money. This Court should reverse.

Respectfully submitted,

FINES AND FEES JUSTICE

CENTER

185 W. Broadway, C-538

New York, NY 10013

Matthew P. Cavedon

Counsel of Record

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(706) 309-2859

Dated: September 10, 2026 mcavedon@cato.org