The Supreme Court Rightly Cited the Black Codes in Ruling Against Excessive Fines, Fees, and Forfeitures
Last week, the U.S. Supreme Court issued a rare in , holding for the first time that the Eighth Amendment鈥檚 Excessive Fines Clause applies to state and local governments 鈥� not just federal authorities.
The fact that this landmark decision is unanimous is itself remarkable. But it bears noting that in separate opinions, both Justice Ruth Bader Ginsburg and Justice Clarence Thomas acknowledge the historical context for the modern-day protection against excessive fines, fees, and forfeitures: southern states鈥� abuse of fines to enforce white supremacy in the years following the Civil War.
The question presented by Timbs is whether the Excessive Fines Clause is incorporated by the 14th Amendment and therefore applicable to the states. When the Bill of Rights was adopted in 1791, it applied only against the federal government. In the aftermath of the Civil War, the granted citizenship to formerly enslaved people and, among other things, prohibited state governments from depriving people 鈥渙f life, liberty, or property without due process of law.鈥� Since then, the U.S. Supreme Court has held that most of the protections in the Bill of Rights apply to the states because they are incorporated by the 14th Amendment鈥檚 Due Process Clause.
Justice Ginsburg and Justice Thomas both conclude that the protection from excessive fines extends to state and local conduct because this right is 鈥渇undamental to our scheme of ordered liberty鈥� and 鈥渄eeply rooted in this Nation鈥檚 history and tradition.鈥� Both justices trace the roots of the Excessive Fines Clause to the Magna Carta鈥檚 prohibition on monetary penalties that are disproportionate to the offense and so large that they deprive individuals of their livelihood.
Significantly, Justice Ginsburg and Justice Thomas鈥檚 opinions both detail how, after the 14th Amendment was enacted, states across the South used excessive fines to pull recently freed Black people back into involuntary servitude. Justice Ginsburg writes:
Following the Civil War, Southern States enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy. Among these laws鈥� provisions were draconian fines for violating broad proscriptions on 鈥渧agrancy鈥� and other dubious offenses. . . . When newly freed slaves were unable to pay imposed fines, States often demanded involuntary labor instead. . . . Congressional debates over the Civil Rights Act of 1866, the joint resolution that became the Fourteenth Amendment, and similar measures repeatedly mentioned the use of fines to coerce involuntary labor.
Justice Thomas catalogues how Black Codes were used to impose excessive fines and extort free labor from Black people:
For example, under Mississippi law, adult 鈥渇reedmen, free negroes and mulattoes鈥� 鈥渨ithout lawful employment鈥� faced $50 in fines and 10 days鈥� imprisonment for vagrancy. . . . Those convicted had five days to pay or they would be arrested and leased to 鈥渁ny person who will, for the shortest period of service, pay said fine and forfeiture and all costs.鈥� . . .
. . . Florida punished vagrants with 鈥渁 fine not exceeding $500 and imprison[ment] for a term not exceeding twelve months, or by being sold for a term not exceeding twelve months, at the discretion of the court. At the time, such fines would have been ruinous for laborers.
This sordid history is crucial context. Even today, fines and fees perpetuate injustice and drive racial inequality. Our amicus brief in support of the petitioner in Timbs details how the overreliance on fines and fees for government revenue creates powerful incentives to impose excessive financial penalties, with disastrous consequences on people who cannot pay. The impact is especially harsh for people of color due to longstanding racial disparities in and , perpetuating cycles of debt, instability, and criminal legal system involvement that hurts families and the public at large.
Examples abound.
Kevin Thompson, a Black teenager, was unlawfully jailed for five days because he couldn鈥檛 afford to pay more than $800 to a court that sought to raise revenue for DeKalb County, Georgia. Single mothers of color are jailed for up to 57 days and separated from their children because they cannot pay exorbitant fines to the courts of Lexington County, South Carolina. Hundreds of thousands of people, disproportionately of color, are harmed by North Carolina鈥檚 revocation of driver鈥檚 licenses simply for inability to pay court debt.
Justice Ginsburg, writing for seven justices, recognized that monetary penalties must be closely examined for excessiveness precisely because 鈥渇ines are a source of revenue鈥� and are therefore prone to be used 鈥渙ut of accord with the penal goals of retribution and deterrence.鈥� Citing our amicus brief she noted, 鈥淭his concern is scarcely hypothetical.鈥�
Justice Ginsburg and Justice Thomas鈥檚 opinions in this case send a unified message: Our right to be protected from excessive fines, fees, and forfeitures is fundamental. States cannot impose crippling monetary penalties that impoverish individuals and deprive them of their livelihood. Practices that fly in the face of these safeguards have been used to perpetuate racial injustice in the past 鈥� and they have no place in our present.
