By Siobhan Allen
Over the last decade, the United States has seen a dramatic increase in both homelessness and the laws that criminalize it. This Note contends that the Eighth Amendment’s Excessive Fines Clause is a powerful but underutilized tool available to end the criminalization of homelessness.
Part I reviews the history of civil and criminal punishment of homelessness in the United States and of the Excessive Fines Clause. Part II explores the weaknesses of other Eighth Amendment doctrines in their application to people experiencing homelessness. Part III explores the Excessive Fines Clause as a constitutional protection against civil punishment for people experiencing homelessness. This Part also evaluates what constitutes “excessive” and “fine” within the meaning of the Clause, and how proportionality between perpetrator, action, and the amount of a fine factors into the “excessiveness” analysis. Finally, Part IV discusses the benefits and drawbacks of applying the Excessive Fines Clause in conjunction with other Eighth Amendment doctrines as a constitutional framework for people experiencing homelessness. The Note concludes by arguing that the Excessive Fines Clause should be used as a tool to stop the criminalization of homelessness.