Should the fine have to fit the crime?

Summary

Planet Money Episode Summary

Podcast: Planet Money
Host: NPR (Jeff Guo & Sarah Gonzalez)
Episode Title: Should the fine have to fit the crime?
Date: October 24, 2025

---

Overview of the Episode's Main Theme

This episode explores a fundamental question in the American justice system: Should the punishment, specifically economic punishment in the form of fines and forfeitures, have to fit the crime? Using the real-life case of Alaskan bush pilot Ken Jopi—who lost his $95,000 Cessna airplane over transporting a six-pack of beer into a "dry" town—the show delves into the constitutional and legal debates around excessive fines, the Eighth Amendment, and the unintended consequences of how economic punishments are wielded.

---

Key Discussion Points and Insights

1. The Story of Ken Jopi and the Six-Pack Bootlegging Case

• Background ([00:38]–[05:11])
  • Ken Jopi, a bush pilot in Alaska, ran a small air taxi service called Ken Air.
  • In 2012, Ken was preparing for a day of deliveries, which included transporting groceries for a passenger, Helen, to the dry village of Beaver.
  • Alaska State Troopers stopped Ken moments before takeoff, found a six-pack of Budweiser among Helen's groceries. Both Helen and Ken were charged with bootlegging.
  • Despite lacking knowledge of the beer, Ken was convicted because the jury felt he "should have known" about the alcohol ([04:35]).
  • Under Alaska law, Ken had to forfeit his airplane—his livelihood—over this incident.

“The judge sentences Ken to the minimum punishment…But there’s another part…because Ken has been convicted of bootlegging, the judge has no choice but to take away Ken’s plane.”
— Sarah Gonzalez ([05:11])

2. The Excessive Fines Clause and Its (Re)Discovery

• Constitutional Context ([07:04]–[08:38])
  • Michael O’Hare, law professor at Marquette University, reads the Eighth Amendment, stressing the rarely referenced clause on excessive fines.
  • For much of American history, this clause was almost ignored because large economic punishments were less common.

“Even my kids tell me I can’t deprive my kids of access to their iPhones because that would be cruel and unusual punishment. But very few people are familiar with the other two parts of the Eighth Amendment.”
— Michael O’Hare ([07:51])

• The War on Drugs and Forfeiture Boom ([08:47]–[10:45])
  • The 70s–80s saw laws passed to allow the government to seize property connected to crimes, e.g., boats, cars, even homes.

“If there is a boat or a private airplane used to carry drugs across the border, those could be seized…”
— Michael O’Hare ([09:21])

3. A Precedent Case: Hosep Bajikajian and Limits on Economic Punishments

• Bajakajian Supreme Court Decision (1998) ([10:58]–[12:58])
  • Bajikajian faced government forfeiture of $300,000 for failing to declare cash at the airport—a law aimed at drug traffickers, though Bajikajian had no such connections.
  • Supreme Court decided this was an unconstitutionally excessive fine, recognizing constitutional limits to economic punishment for the first time.

“The Supreme Court said that what happened to him was unconstitutional, that taking away his $300,000 in cash over not filling out a form—that was an unconstitutionally excessive fine.”
— Sarah Gonzalez ([14:21])

“The fine has to fit the crime.”
— Jeff Guo ([14:41])

4. Uncertainty and Inconsistency in Applying the “Excessive Fines” Protection

• Vague Standards and Judicial Reluctance ([15:02]–[16:18])
  • The Supreme Court intentionally left the standard vague—fines cannot be “grossly disproportionate,” but what does that mean in practice?
  • Lower courts have generally been reluctant to apply or enforce this clause robustly.

“There was definitely some optimism.”
— Michael O’Hare ([16:01]) “The optimism runs into the reality of lower courts that are not very receptive.”
— Michael O’Hare ([16:09])

5. Ken’s Legal Odyssey and the Current Stakes

• Ken's Challenge, the Legal Landscape, and Sam Gedge’s Crusade ([17:05]–[19:23])
  • Ken’s case went to the Alaska Supreme Court, which said forfeiting his plane was not excessive.
  • Sam Gedge, an attorney from the Institute for Justice and a passionate advocate for the excessive fines clause, took up Ken’s appeal.
  • Gedge argues that most courts rubber-stamp government fines without serious scrutiny, leading to unjust outcomes.

“I get really, really jazzed about the excessive fines clause. I can’t get enough of it.”
— Sam Gedge ([17:49])

“You didn’t really see them scrutinizing fines and forfeitures all that closely...kind of viewing it as something of a rubber stamp for the government.”
— Sam Gedge ([18:42])

6. Competing Approaches to the Excessive Fines Clause

• Variation in Court Responses and Calls for a Robust Standard ([19:23]–[21:31])
  • Some courts examine economic punishments on a case-by-case basis, notably considering individual circumstances—e.g., a Washington state case where a homeless man’s truck was seized over a parking ticket ([20:03]–[20:37]).
  • Most courts, however, defer to legislative intent and the seriousness of the offense in general, rarely throwing out fines as excessive.

“There are courts that are really kind of grappling seriously with this…tried to think through what this standard should really look like.”
— Sam Gedge ([19:55])

7. Why Courts Resist Stricter Excessive Fines Enforcement

• Three Main Reasons, According to Legal Scholar Michael O’Hare ([21:43]–[24:13])
  1. Practical Concerns: Applying the excessive fines clause thoroughly would bog down the courts in endless debates over every punishment.
  2. Deference to Legislative Intent: Some penalties are meant to be harsh (like Alaska’s bootlegging law), aiming to deter future crime—so courts are hesitant to undermine those purposes.
  3. Economic Incentives: Many justice systems now depend on fines/forfeitures for funding, creating structural resistance to limiting them.

“Mostly, the lower courts have said, no, thank you. We’d rather not enter the brave new world of a robust excessive fines clause.”
— Michael O’Hare ([21:43])

8. The Bigger Picture: Economics Driving Justice

• Potential for Reform and What’s at Stake ([24:13]–[25:20])
  • The government makes money from forfeitures in a way that creates perverse incentives, unlike prison sentences which cost the state.
  • Ken’s case could push the Supreme Court to set clearer, stricter guidelines on what counts as an excessive fine.

“Fines and forfeitures generate money for the government, so there’s an incentive for governments to impose more and more fines...”
— Jeff Guo ([24:13])

---

Timestamps for Important Segments

• [00:38]–[05:41]: Ken Jopi’s story and introduction to the "excessive fine" question.
• [07:04]–[08:38]: The Eighth Amendment and the “excessive fines” clause.
• [08:47]–[10:45]: Background on asset forfeiture laws.
• [10:58]–[12:58]: Bajikajian Supreme Court case.
• [15:02]–[16:18]: Ambiguity and judicial reluctance post-1998.
• [17:05]–[19:23]: The Alaska Supreme Court decision and Sam Gedge’s intervention.
• [19:23]–[21:31]: How courts differ in applying the excessive fines clause.
• [21:43]–[24:13]: Three main reasons courts are reluctant to police excessive fines.
• [24:13]–[25:20]: Economics of fines and what Ken’s case could change.

---

Notable Quotes and Memorable Moments

• Ken Jopi, reflecting on his verdict:

  “When the jury came out and read the verdict, I glanced up at the judge, and he was stunned. He was absolutely stunned to hear that verdict. That's not what he was expecting.”
  ([04:59])

• Michael O’Hare, on the excessive fines clause:

  “Absolutely not. I… don’t think I heard those words uttered while I was a law student in the 1990s.”
  ([08:38])

• Jeff Guo, on Bajikajian’s predicament:

  “Ironically, it sounds like he did end up getting shaken down in a sense.”
  ([12:31])

• Michael O’Hare, on lower courts’ reluctance:

  “Mostly, the lower courts have said, no, thank you. We'd rather not enter the brave new world of a robust excessive fines clause.”
  ([21:43])

• Sarah Gonzalez, on the justice system’s economic incentives:

  “That’s become a big part of the economic model for how criminal justice operates in a lot of places these days.”
  ([23:31])

---

Flow & Tone

The episode blends storytelling with clear legal explanation and offers moments of levity, such as jokes about kids invoking "cruel and unusual punishment" about iPhone restrictions ([07:51]) and the playful closing banter ([25:48]). The tone is informative, curious, and occasionally incredulous about the severity—and sometimes absurdity—of forfeiture laws as applied in real-life circumstances.

---

Conclusion

This Planet Money episode uses Ken Jopi’s quirky yet serious legal saga to explore a critical legal question with vast implications: Should the fine fit the crime? As Ken now waits to see if the U.S. Supreme Court will take his case, the stakes include not just the fate of Ken’s plane but the future enforcement—and meaningfulness—of the excessive fines clause in the United States. The episode is a primer on the intersection between law, economics, and justice, highlighting the urgent need for clarity and balance when financial penalties and forfeitures are imposed.

Transcript

[Square Announcer]

This message comes from Square. When the bagel shop with the line out the door opens new locations or your favorite boutique adds a cafe. Square has tools to help make it happen. Square banking to fund the next goal. AI powered analytics to make informed decisions and Square point of sale that works for any type of business. Go to square.com go NPR to learn more. Block Inc. Is not a bank. Banking services provided by Square Financial Services Inc. And Sutton bank members. FDIC loans are subject to credit approval.

[Sarah Gonzalez]

This is Planet Money from npr.

[Jeff Guo]

For many years, Ken Jopi ran his own little air taxi service up in Fairbanks, Alaska. He called it Ken Air.

[Ken Jopi]

Most of the villages, the mining camps are totally remote. The only way to get there is by air. So everything that can be transported gets flown in.

[Sarah Gonzalez]

Ken is a bush pilot. He used to skim over the Alaskan wilderness in his Cessna Skywagon, which is those little single propeller airplanes with just six seats.

[Ken Jopi]

The colors that I liked were blue and yellow. The blue and yellow goes good together. So I had a blue and yellow stripe on it, my name up on the tail, big cargo doors in the back and oversized tires so you can land on rough surfaces.

[Jeff Guo]

Pretty much anything you can imagine. Ken has probably tried to jam it in the back of that Cessna at some point. We're talking drums full of gasoline, a partially disassembled atv, a moose from a hunting trip. Once he had a whole team of sled dogs, like seven or eight of them, just loose in the back.

[Ken Jopi]

And these are white dogs. And when they're nervous or shed, there was so much hair in that airplane, I thought every dog was bald by the time we got where we were going.

[Sarah Gonzalez]

But Ken hasn't flown that Cessna with his name up on the tail for a while now. In fact, Ken Eyre went out of business several years ago. And the main reason for that has to do with this incident that happened on an April morning in 2012.

[Jeff Guo]

Yeah, that day, Ken had a bunch of jobs lined up. He was going to deliver a casket for a funeral. Later, he was going to haul some parts and equipment for a mining outfit. But at first, he had a quick job for one of his regulars, a woman named Helen.

[Ken Jopi]

I'm there, you know, getting the airplane ready, getting the covers off the wings and putting gas in. And Helen, the gal and her sister pulled up in a Suburban.

[Sarah Gonzalez]

Helen was going to visit her husband, who lived in a little village called Beaver along the banks of the Yukon River. They were going to celebrate her birthday. Helen had brought along a bunch of supplies, and Ken helped her load those Bags and boxes of supplies into the back of his plane.

[Ken Jopi]

It was groceries, Cardboard box full of groceries. And she had, you know, like, 12 packs of Coke and, you know, things like that. So nothing unusual.

[Jeff Guo]

Ken says he wasn't really in the business of rifling through his customer stuff. So he closes the cargo doors, climbs in the pilot seat. The propeller spinning, the engines roaring away. And just as he's about to pull out onto the Runway, he sees this guy running up to him, and it's an Alaska state trooper asking him to get out of the plane.

[Ken Jopi]

You know, it's like, what? What's going on? You know, I had no idea. So I turned the engine off and got out.

[Sarah Gonzalez]

The trooper tells Ken they have a warrant to search his plane. A couple officers go in the back and start going through Helen's stuff, dumping it on the tarmac. And that is when Ken spots the problem There. Among Helen's groceries, Helen had brought along a six pack of Budweiser.

[Jeff Guo]

And the moment you see that beer, what's going through your mind?

[Ken Jopi]

Oh, well. Oh, you know.

[Jeff Guo]

Yeah. The village of Beaver, where Ken and Helen were headed to, it is a dry town. The few dozen people who live there voted in 2004 to ban all alcohol. A lot of towns in Alaska have banned alcohol because alcohol abuse has been that big of a problem.

[Sarah Gonzalez]

So Helen was in trouble for bootlegging. The state troopers end up finding a couple of cases of beer in her luggage. But Ken. Ken was also in trouble for bootlegging. Prosecutors accuse him of knowingly helping Helen smuggle beer.

[Jeff Guo]

Yeah, the police had been going after bush pilots like Ken. Some of them had a reputation for not asking their passengers too many questions about what was in their luggage. Ken had gotten caught once before when one of his passengers brought alcohol onto his plane, Though that was only a misdemeanor.

[Sarah Gonzalez]

This time, Ken was in trouble for a much bigger crime. Bootlegging is a felony. His case goes to trial, and the jury is like, okay, maybe Ken didn't know about all those, you know, hidden cases of beer. But that six pack, that six pack of Budweiser in a clear plastic bag, yeah, Ken should have known about that. So the jury finds Ken guilty.

[Ken Jopi]

When the jury came out and read the verdict, I glanced up at the judge, and he was stunned. He was absolutely stunned to hear that verdict. That's not what he was expecting.

[Jeff Guo]

The judge sentences Ken to the minimum punishment Under Alaska law. Ken gets three days in jail and a $1,500 fine. But there's another part of Ken's punishment because Ken has been convicted of bootlegging, the judge has no choice but to take away Ken's plane.

[Sarah Gonzalez]

You see, under Alaska law, any plane involved in bootlegging becomes property of the state. So for the crime of helping Helen load a six pack of Budweiser onto his plane, the state orders Ken to forfeit his Cessna.

[Jeff Guo]

And ever since then, for the past dozen years, Ken has been fighting for that plane because, come on, a $95,000 Cessna taken away over a six pack? How. How in the world can this be fair? Right? Hello, and welcome to Planet Money. I'm Jeff Guo.

[Sarah Gonzalez]

And I'm Sarah Gonzalez. A few weeks ago, Ken's case and the controversial question at the heart of it caught the attention of the U.S. supreme Court. It's a question so many courts in the United States right now are struggling with, and the answers could change criminal punishment forever.

[Jeff Guo]

Today on the show, what are the limits when the government tries to take away your money or your property or your plane over a crime? What does the Constitution have to say about these economic punishments? Like, does the fine have to fit the crime? Ken Jopi has been fighting with the state of Alaska for the last 12 years about his Cessna Skywagon, the plane they're trying to take away over a six pack of beer.

[Sarah Gonzalez]

And Ken's lawyers, they are trying to make this very interesting argument. It has to do with one kind of mysterious line in the US Constitution. It's actually just a couple of words, and one of our nation's experts on those couple of words is Michael o'. Hare.

[Michael O'Hare]

Okay, well, I've got the text of the Eighth Amendment right here. I'm ready, ready to read this.

[Jeff Guo]

Michael is a law professor at Marquette University, where he teaches about crime and punishment.

[Michael O'Hare]

This is the 8th amendment. It's one of the shortest provisions of the Constitution. It reads in full, excess of bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

[Jeff Guo]

Now, most people have probably heard of that cruel and unusual punishment part.

[Michael O'Hare]

Even my kids tell me I can't deprive my kids of access to their iPhones because that would be cruel and unusual punishment. But very few people are familiar with the other two parts of the eighth Amendment.

[Sarah Gonzalez]

He's talking about the parts of the Eighth Amendment that say, excessive bail shall not be required nor excessive fines imposed. And that last part is known as the excessive fines of clause. And for most of the past century, people weren't really paying much attention to the excessive fines clause, in part because courts weren't really handing out a Lot of huge fines. This was like an obscure part of the Constitution.

[Jeff Guo]

When you were in law school, did you guys learn about the excessive fines clause?

[Michael O'Hare]

Absolutely not. I. I don't think I heard that those words uttered while I was a law student in the 1990s, Michael says.

[Jeff Guo]

What changed everything, what made the excessive fines clause way more relevant started with the war on drugs.

[Sarah Gonzalez]

In the 1970s and 1980s, federal and state governments began to really crack down on drug crimes. They passed laws that forced courts to hand out much harsher prison sentences and much harsher economic punishments, too. Bigger fines and also a special kind of penalty called a forfeiture, where the government would confiscate property just for being related to a crime. That's what happened to Ken, right? The state of Alaska took his plane in a criminal forfeiture.

[Michael O'Hare]

So if there is a boat or a private airplane used to carry drugs across the border, those could be seized. If your house was being used for anything having to do with drug trafficking, the house can be taken. Cars. If you are using your car to transport even a small amount of drugs to a drug transaction, the car can be seized.

[Jeff Guo]

The goal of these forfeiture laws was to punish drug dealers to make it so that crime didn't pay. But these forfeitures were also a way to fund the war on drugs. Like, the police might confiscate a helicopter and turn it into a police helicopter. Or more likely, they would auction it off and use that cash.

[Sarah Gonzalez]

These forfeiture laws led to some pretty extreme situations. Like in one case, police found a joint on a yacht, and so they took the whole yacht.

[Michael O'Hare]

And the defense lawyers, you know, initially, they. They weren't sure what to do, right? Like, what part of the Constitution do we use to fight these asset forfeitures? And there are a number of different theories that are advanced, but it turned out that the thing that stuck was the excessive fines clause.

[Jeff Guo]

Yeah, those couple of words in the Constitution that say that economic punishments can't be excessive. And what really put the excessive fines clause on the map was this one supreme court case from 1998.

[Sarah Gonzalez]

This case was about a guy named Josep Bajikajian. Bajakajian and his family were flying out of LAX one day. Now, whenever you leave the country with more than $10,000 in cash, you were supposed to report it to the government and fill out this official form. Hosep Bajikajian and his family, they were carrying a lot of cash, and they had not reported it.

[Jeff Guo]

But at the airport that day, there was a cash sniffing dog who found that cash in their luggage. They were about to leave the country with more than $300,000, and under federal law, they had to forfeit all of that money to the US Government.

[Sarah Gonzalez]

At the Supreme Court, his lawyers argued that this was an excessive fine because this cash reporting law was created as part of the war on drugs. It was intended to catch drug dealers and cartel money launderers.

[Michael O'Hare]

Bajikazian says, but hey, wait a minute. I'm actually not a drug dealer.

[Sarah Gonzalez]

Okay, but why does he have all this cash?

[Jeff Guo]

He says he was repaying a loan, and he proves that this $300,000 is legitimate money. It has no connection to drugs whatsoever. And the only reason he didn't declare this money was because he says he was scared. He says where he grew up in Syria, there were a lot of problems with government corruption.

[Michael O'Hare]

He comes from a foreign country where if the authorities found out you were traveling with a large amount of cash, the authorities might do a little shakedown. Yeah, right. So Bajikajian says, that's why I didn't want to report the cash. I didn't trust the authorities.

[Jeff Guo]

Well, ironically, it sounds like he did end up getting shaken down in a sense.

[Michael O'Hare]

In a sense.

[Jeff Guo]

So here is the argument that Hosep's lawyers made. It boils down to. Come on, guys, clearly there is something wrong here. Look at the 8th amendment. It says that fines can't be excessive. And here we are talking about a $300,000 punishment over not filling out a form like, how. How can this be constitutional?

[Sarah Gonzalez]

And at the time, a lot of people didn't think that Hosa Bajikajian had any shot in this case, because people had already tried to challenge the other harsh laws that were part of the war on drugs, like the laws that imposed long, mandatory prison terms. People were getting sentenced to decades in prison for pretty low level crimes like selling a tiny amount of coke or decades in prison for having just a little bit of marijuana on them if it was like their third offense.

[Jeff Guo]

And back in the 1980s, defense lawyers had tried to argue that some of these prison sentences seemed pretty extreme, pretty cruel and unusual, possibly unconstitutional. But the Supreme Court was like, nope, in general, we're going to be okay with these super harsh prison sentences.

[Michael O'Hare]

So basically, the Supreme Court, before it even got into the whole business of dealing with excessive fines, the Supreme Court had already made pretty clear that the sky is almost the limit when it comes to prison terms.

[Jeff Guo]

So that is the context when in 1998, Hossep's case gets to the Supreme Court, he's asking the court to put a constitutional limit on fines and forfeitures. But if the Supreme Court isn't putting real limits on prison terms, why would it put limits on economic types of punishment?

[Sarah Gonzalez]

Yeah, except that the Supreme Court actually sided with Josep. The Supreme Court said that what happened to him was unconstitutional, that taking away his $300,000 in cash over not filling out a form that was an unconstitutionally excessive fine.

[Jeff Guo]

You know, it's not often you see the birth of a new kind of constitutional argument, but in 1998, that's basically what happened. The Supreme Court said that whenever the police are trying to punish you, taking away your money or your property, there is a limit to those kinds of economic punishments. A constitutional limit. The fine has to fit the crime.

[Sarah Gonzalez]

Yeah, but what does that actually mean? Like, what makes something an excessive fine versus an okay fine? Michael says the Supreme Court kind of left that question open.

[Michael O'Hare]

Yeah, so what the majority said was actually kind of mysterious. The majority said it's okay if a fine is a little bit disproportionate to the severity of the offense. It just can't be grossly disproportionate.

[Jeff Guo]

Okay, what does that mean?

[Michael O'Hare]

But then the court didn't really explain.

[Sarah Gonzalez]

Sounds like the Supreme Court.

[Jeff Guo]

It really does. And okay, some of this vagueness was kind of on purpose. The Supreme Court wanted to see how the lower courts would apply the excessive fines clause. You know, the. Give them a chance to come up with their own ways of balancing the fine against the crime. And at first, defense lawyers were pretty excited about this. They were like, this could be a powerful new tool in our constitutional tool belts to fight back against unfair fines and forfeitures.

[Michael O'Hare]

There was definitely some optimism.

[Jeff Guo]

What ends up happening to all that optimism?

[Michael O'Hare]

The optimism runs into the reality of lower courts that are not very receptive.

[Jeff Guo]

The lower courts are just like rejecting what the Supreme Court says.

[Michael O'Hare]

Well, the Supreme Court's decision had a lot of wiggle room in it after the break.

[Sarah Gonzalez]

How courts have actually been interpreting the excessive fines clause. And how can Jopi's case could change it all?

[Jeff Guo]

It's now been almost three decades since the Supreme Court said that there is a constitutional limit on economic punishment, that fines and forfeitures generally have to fit the crime. But that has not stopped state and local governments from issuing a lot of fines and doing a lot of these extreme sounding forfeitures, like in Ken Jopi's.

[Sarah Gonzalez]

Case, where in 2012 he basically lost his $95,000 airplane over a six pack of Budweiser for the past decade, his lawyers have been arguing that that was an unconstitutionally excessive fine. And recently, Ken's appeal reached the highest court in Alaska, the Alaska Supreme Court. But the judges said, no, Ken's punishment was not excessive.

[Jeff Guo]

And almost immediately, that decision catches the attention of a lawyer named Sam Gedge.

[Sam Gedge]

I have an alert system where every day Westlaw, the big law database, automatically sends me a list of every case that's come down in the past day or two with the phrase excessive fines in it.

[Jeff Guo]

Because you are like, the excessive fines guy. Yeah, yeah.

[Sam Gedge]

I mean, I get really, really jazzed about the excessive fines clause. I can't get enough of it.

[Jeff Guo]

Sam is a lawyer at the Institute for Justice. It's this nonprofit law firm that focuses on kind of libertarian issues like private property and free speech. And for years, Sam has been fighting state and local governments, trying to stop the kinds of forfeitures we've been talking about where, you know, the police are taking away people's cars over joints of marijuana.

[Sarah Gonzalez]

Sam is a big believer in the excessive fines clause. A couple years ago, he and his colleagues actually won a big case at the US Supreme Court where the court said that the excessive fines clause doesn't just apply to the federal government, it also applies to every state and local government too.

[Jeff Guo]

But Sam says one thing he's noticed in his years doing this work is that unlike him, a lot of judges were not that jazzed about the excessive fines clause. They weren't really throwing out fines for being unconstitutionally excessive.

[Sam Gedge]

You didn't really see them scrutinizing fines and forfeitures all that closely. You know, a lot of the lower courts were kind of viewing it as something of a rubber stamp for the government.

[Jeff Guo]

So they weren't even, like, applying the excessive fines clause in the Constitution very harshly.

[Sam Gedge]

That's exactly right.

[Ken Jopi]

Yeah.

[Sam Gedge]

We're not really applying it at all.

[Sarah Gonzalez]

And when Sam starts reading the decision in Ken Joby's case, he's like, this is one of the most outrageous examples I've seen of a court not taking this excessive fines clause protection seriously. So Sam gives Ken a call, and pretty soon he's on a flight out to meet him. He's like, ken, we gotta appeal your case to the U.S. supreme Court.

[Jeff Guo]

Right now, the Supreme Court is deciding whether to take Ken's case. And here are the stakes. Sam says, when it comes to the excessive fines clause, they're basically two ends of the spectrum right now, two different ways courts are analyzing whether the fine fits the crime.

[Sarah Gonzalez]

On one end of the spectrum. Some judges have interpreted the excessive fines clause as a really strong protection. They ask questions like, how bad was the crime that you had to take away this person's car or home or plane? And does that punishment make sense in this circumstance?

[Sam Gedge]

So there are courts that are really kind of grappling seriously with this, that have really kind of gotten their hands dirty and tried to think through what this standard should really look like.

[Jeff Guo]

For instance, in Seattle, Washington, there was a case involving a man who was living out of his truck. The man had parked his truck for too long in a city lot, so the city towed it away. They told him that in order to get it back, he had to pay a $500 towing fee.

[Sarah Gonzalez]

This case went up to the highest court in Washington state, which said, hold on, for this man, that fine is unconstitutionally excessive. This man doesn't have a home. He can't afford $500, and you can't take away his only shelter, the only means to get to work over a simple parking violation.

[Jeff Guo]

Sam says more courts need to be doing that kind of analysis. Actually looking at economic punishments on a case by case basis, asking if they're this particular fine fits this particular crime and this particular person.

[Sam Gedge]

If we're talking about a drug crime, for example, are they on the Pablo Escobar end of the spectrum, or are they on the just low level addict end of the spectrum?

[Jeff Guo]

Sure. How bad was the crime? How big is the fine? Seems like that's pretty simple.

[Sam Gedge]

That's exactly right. Now, where some courts are going wrong is that they're just kind of zooming out and saying, well, we don't really care about the facts of this particular case. It's really enough for them to say, well, the crime as a general matter is a serious crime.

[Jeff Guo]

Yeah. So that's the other end of the spectrum. A lot of courts are more hands off. They're not really zooming in on the facts of any particular case, which means they're not finding that many fines or forfeitures to be unconstitutionally excessive.

[Sarah Gonzalez]

Michael o', Hare, our expert on crime and punishment, he actually did a study on this recently. He looked at hundreds of cases from state and federal courts to see how they were interpreting the excessive fines clause.

[Michael O'Hare]

Mostly, the lower courts have said, no, thank you. We'd rather not enter the brave new world of a robust excessive fines clause.

[Jeff Guo]

Michael says there are basically three reasons why a lot of courts have been so reluctant to get involved with the excessive fines clause. First, they're just like the practical concerns. If the excessive fines Clause means that judges now need to get into the nitty gritty detail of every defendant's specific question, crime and their life circumstances, and all of that. Every case would take forever, and there would be so many more cases, so many more appeals if people started making a constitutional matter out of every parking ticket.

[Sarah Gonzalez]

The second reason is that courts are trying to respect the intent behind some of these harsh laws with mandatory punishments. That's something that the Alaska supreme court was thinking about a lot. In Ken's case. The court was like, we know that taking away Ken's plain sounds a little extreme, but this bootlegging law exists for a good reason. Our state has a really long and troubled history with alcohol. Villages in Alaska have struggled with alcohol abuse. So, no, we don't think it's excessive to have a law where the state will take your plane if they catch you bootlegging.

[Jeff Guo]

The idea here is that this bootlegging law is harsh on purpose. It's supposed to deter people from breaking the law.

[Michael O'Hare]

If you bring any amount of alcohol into a village that doesn't want it in Alaska, you're going to lose your plane, period. It's a mandatory penalty. I can't try to weasel my way out of the punishment. There's no argument I can make. There's no sob story I can tell the court. And so I'm not going to do the crime because it's an automatic, very severe punishment.

[Sarah Gonzalez]

Now, the final reason why courts might be so reluctant to call a fine unconstitutionally excessive has to do with the bigger picture of the whole justice system. Over the past 20 years, a lot of police departments and prisons and even court systems themselves have started to rely on the money coming in, all the fines they get people to pay, and all the cars and planes and homes that they confiscate and auction off. That's become a big part of the economic model for how criminal justice justice operates in a lot of places these days. If judges really leaned into enforcing the excessive fines clause, they could undermine all of that, the whole economic model.

[Jeff Guo]

But maybe we should be rethinking that economic model. You know, when it comes to the excessive fines clause, there's always been this puzzle. And one argument is that the incentives here are kind of warped, because when the government puts people in prison, that costs the government money. But fines and forfeitures generate money for the government, so there's an incentive for governments to impose more and more fines. Ken and his lawyers say that is what's really at stake in this case. They want the supreme court to step in and set some real rules to push back against this economic model that relies on more fines and more forfeitures. It's a tricky debate, and they're hoping in the next few months to find out if the Supreme Court wants to weigh in. If you want to hear more stories about the weird things that happen when economics meets the law, we've got some episodes you might like. There are false confessions, captive markets, and rescues at sea. You can find links to those episodes in our show Notes. Also, Planet Money has written a book, wow.

[Michael O'Hare]

Wow, wow, wow, wow.

[Jeff Guo]

If you want to pre order it, please do.

[Sarah Gonzalez]

You can go to planetmoneybook.com Today's episode of Planet Money. The show was produced by James Mead and Sam Yellowhorse Kessler, with help from Luis Gallo. It was edited by Just String, Fact Checked by Sierra Juarez and engineered by Ko Takasugi Chernovin, with help from Robert Rodriguez. Our executive producer is Alex Goldmaich.

[Jeff Guo]

A special thanks to Justin Wilson, Michael Greenberg and Donald Soderstrom. I'm Jeff Guo.

[Sarah Gonzalez]

And I'm Sarah Gonzalez. You take it.

[Jeff Guo]

No, you say it. You say it.

[Sarah Gonzalez]

No, you say it.

[Jeff Guo]

No, you have to say it.

[Sarah Gonzalez]

We always do this. This is npr.

[Jeff Guo]

Thanks for listening.