Can a traffic ticket, municipal fine, or asset forfeiture rise to the level of being unconstitutional? That’s the question at the heart of Professor Michael M. O’Hear’s recent article, Our Anemic Excessive Fines Clause: Are State Courts Following the Federal Lead? The piece examines how courts around the country are interpreting the Eighth Amendment’s Excessive Fines Clause in the years since Timbs v. Indiana (2019), the Supreme Court decision that extended the Clause’s protections to state and local governments. While the ruling promised new safeguards against overreaching financial penalties, its real-world impact has been uneven—and in many states, still largely unwritten.
Professor O’Hear notes that while most states, including Wisconsin, have produced little case law on the Clause, Washington State has broken new ground. Its courts have ruled that penalties must be judged in light of a person’s circumstances—for example, forfeiting a vehicle may devastate someone of limited means even if the same penalty would be inconsequential to a wealthier defendant. Such holdings highlight potential arguments for lawyers representing clients facing significant economic sanctions.
The issue has only grown more pressing. Economic penalties—fines, fees, forfeitures, and restitution—have expanded dramatically since the 1990s, often falling hardest on those least able to pay. High-profile events, such as the Department of Justice’s investigation in Ferguson, Missouri, revealed how municipal reliance on fines and fees for revenue can fuel distrust and unrest. For advocates, the Excessive Fines Clause offers at least the possibility of limiting these practices, though courts have been hesitant to embrace its full potential.
In his analysis, Professor O’Hear emphasizes that the Clause’s future significance may depend on whether courts are willing to incorporate a defendant’s ability to pay into the constitutional framework. Other areas of law already employ such standards—for example, in determining eligibility for court-appointed counsel or fee waivers. Applying similar reasoning to fines and forfeitures could give the Clause greater practical meaning and provide stronger protections for disadvantaged communities.
A nationally recognized authority on criminal punishment, Professor O’Hear teaches criminal law and related courses at Marquette Law School. He is the author or coauthor of more than eighty scholarly works, including The Failed Promise of Sentencing Reform and Wisconsin Sentencing in the Tough-on-Crime Era. A Yale College and Yale Law School graduate, he joined the Law School’s faculty in 2000 and has since served in leadership and public service roles, including on the Milwaukee Fire and Police Commission. Professor O’Hear is currently the Chair of the Marquette Police Department Advisory Board.