Exploring the “Excess” in Excessive: Reimagining the Eighth Amendment’s Excessive Fines Clause in the Wake of Stars Interactive

Since its inception, the U.S. Supreme Court has only heard a total of five cases interpreting the Excessive Fines Clause of the Eighth Amendment. While the Eighth Amendment’s other clauses—such as the constitutional bar on excessive bail and the ban on cruel and unusual punishment—have been well-litigated and studied, the Excessive Fines Clause has been largely neglected by practitioners and scholars alike. Instead, fines are typically analyzed through a Due Process Clause lens. 

Throughout the Supreme Court’s Excessive Fines Clause jurisprudence, the Court has always adopted a proportionality approach—analyzing cases in the same ratio-like manner as cases involving cruel and unusual punishment. This approach has shortcomings because what has resulted is an imprecise and unpredictable application of ratio analyses leading to vastly disparate results across the country. 

In 2021, uncertainty surrounding the Excessive Fines Clause was finally on the cusp of being resolved when Stars Interactive, owner of an online gaming website called PokerStars, petitioned the Supreme Court for certiorari, challenging a judgment of the Kentucky Supreme Court as violative of the Excessive Fines Clause. Prior to a response brief being filed, however, the parties settled, leaving unresolved the question of when a penalty violates the Eighth Amendment. At the intersection of gaming law and constitutional law and in the Supreme Court’s absence, this Article proposes an answer to when a fine becomes excessive within the meaning of the Eighth Amendment.