Eighth Amendment: Bail, fines and punishment

The Eighth Amendment has three short clauses: no excessive bail, no excessive fines, no cruel and unusual punishments. For city government, the middle clause is the one to know. It covers not only criminal fines but civil penalties and forfeitures that punish, so a daily-accruing code enforcement penalty can be challenged as excessive. The third clause came to every city's attention in 2024, when the Supreme Court upheld an Oregon city's anti-camping ordinance.

The text

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Source: National Archives transcription Verified1

History

The clause's language comes from the English Bill of Rights of 1689. The excessive fines protection "carries forward protections found in sources from Magna Carta to the English Bill of Rights to state constitutions from the colonial era to the present day" (Timbs v. Indiana, 586 U.S. 146 (2019)) Verified2.

Clause by clause

Excessive bail

"Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is 'excessive' under the Eighth Amendment" (Stack v. Boyle, 342 U.S. 1 (1951)) Verified3. The purpose is assuring the person will appear for trial. Pretrial detention to protect the public, with strong procedures, is not barred (United States v. Salerno, 481 U.S. 739 (1987)) Verified4. California's Article I, §12 has its own bail rules, including the provision that "Excessive bail may not be required" Verified5.

Excessive fines

Applies to states and cities. "The Eighth Amendment's Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment's Due Process Clause" (Timbs) Verified2. Indiana had seized a man's $42,000 Land Rover for a drug offense with a maximum fine far lower. The Court explained why the clause matters: excessive fines "can be used, e.g., to retaliate against or chill" opponents and to raise revenue Verified2.

What counts as a fine. At the founding, a fine meant "a payment to a sovereign as punishment for some offense" (Browning-Ferris Industries v. Kelco Disposal, 492 U.S. 257 (1989)) Verified6. Labels don't control: "the crucial question is whether the forfeiture is monetary punishment" (Austin v. United States, 509 U.S. 602 (1993)) Verified7. A sanction that serves partly to punish is covered even if it's called civil. Punitive damages between private parties aren't covered Verified6.

When it's excessive. "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" (United States v. Bajakajian, 524 U.S. 321 (1998)) Verified8. Bajakajian failed to report $357,144 he was taking out of the country; forfeiting all of it was grossly disproportional.

California: daily penalties. The California Supreme Court reviewed a $100-a-day statutory penalty against a landlord that added up to $17,300 and held "the $17,300 sanction herein imposed was excessive," violating due process under the federal and state constitutions (Hale v. Morgan (1978) 22 Cal.3d 388) Verified9. That reasoning is directly relevant to code penalties that accrue every day a violation continues.

Cruel and unusual punishments

The standard. "The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society" (Trop v. Dulles, 356 U.S. 86 (1958)) Verified10. Later decisions emphasize the original focus on methods of punishment.

Status vs. conduct. California made it a crime to "be addicted to the use of narcotics." The Court struck it down: punishing a status, rather than an act, was cruel and unusual (Robinson v. California, 370 U.S. 660 (1962)) Verified11. Robinson also applied the clause to the states.

Homeless camping: City of Grants Pass v. Johnson (2024). Grants Pass, Oregon fined people for camping on public property, with jail possible after repeat violations. The Ninth Circuit, following its Martin v. Boise decision, had held cities couldn't enforce such laws against homeless people when there weren't enough shelter beds. The Supreme Court reversed: "The enforcement of generally applicable laws regulating camping on public property does not constitute 'cruel and unusual punishment' prohibited by the Eighth Amendment" (City of Grants Pass v. Johnson, 603 U.S. 520 (2024)) Verified12. The clause is directed at "the method or kind of punishment," and fines and short jail terms aren't cruel or unusual methods Verified12.

Inability to pay

These are Fourteenth Amendment due process and equal protection cases, but they're about fines:

• A state can't impose a fine on those able to pay "but to convert the fine to imprisonment for those who are unable to pay it" (Tate v. Short, 401 U.S. 395 (1971)) Verified13.
• Probation can be revoked for nonpayment only if the person "willfully refused to pay" or didn't make "sufficient bona fide efforts"; jailing someone who tried and couldn't pay "through no fault of his own" is "fundamentally unfair" (Bearden v. Georgia, 461 U.S. 660 (1983)) Verified14.

How it reaches Williams

All three clauses bind states and cities through the Fourteenth Amendment: cruel and unusual punishment since Robinson, excessive fines since Timbs Verified11,2. (The bail clause's incorporation is generally assumed; this site hasn't found a Supreme Court holding stating it directly.)

California's own version: "Cruel or unusual punishment may not be inflicted or excessive fines imposed" (Art. I, §17) Verified5. Note "or": California's text bans punishment that is either cruel or unusual.

In Williams

• Administrative fines. State law lets a city make any ordinance violation subject to administrative fines, with procedures set by ordinance; for violations that would otherwise be infractions, the fines "shall not exceed the maximum fine or penalty amounts for infractions" in Gov. Code §36900(b) (Gov. Code §53069.4) Verified15. Infraction fines under §36900(b) start at "a fine not exceeding one hundred dollars ($100) for a first violation" Verified16. See Williams: fines.
• Daily penalties that pile up. A fine that's reasonable per day can become excessive in total. Our reading: Timbs, Bajakajian and Hale v. Morgan together give a resident a real argument when accumulated code penalties are grossly out of line with the harm Verified2,8,9.
• Camping rules. After Grants Pass, the Eighth Amendment doesn't bar Williams from enforcing a generally applicable camping ordinance Verified12. Other limits (due process, state law, California's §17) still apply.
• Can't pay. Jail for an inability to pay a fine violates Tate and Bearden Verified13,14.

Common misconceptions

• "Civil penalties aren't fines." If they punish, they're covered Verified7.
• "The fines clause only limits the federal government." Timbs applied it to the states Verified2.
• "Cities can't enforce camping bans if shelters are full." That was the Ninth Circuit's rule; the Supreme Court rejected it in 2024 Verified12.

Check yourself

Pick an answer for each question. You will see right away if it is right, and why.