Timbs v. Indiana Brief Amicus Curiae in Support of Petitioners

    No. 17-1091

In The

mpreme Court of tfje Muttetr States?

TYSON TIMBS AND A 2012 LAND ROVER LR2,

Petitioners,
v.

STATE OF INDIANA,

Respondent.

On Writ of Certiorari 
to the Indiana Supreme Court

BRIEF OF AMICUS CURIAE 
NAACP LEGAL DEFENSE & EDUCATIONAL 
FUND, INC. IN SUPPORT OF PETITIONERS

Sherrilyn A. Ifill 
Director-Counsel 

Janai S. Nelson 
Samuel Spital 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street 
5th Floor
New York, NY 10006

September 11, 2018

Daniel S. Harawa* 
NAACP Legal Defense & 

Educational Fund, Inc. 
700 14th St. NW 
Suite 600
Washington, DC 20005 
(202) 682-1300 
dharawa@naacpldf.org

Counsel for Amicus Curiae

* Counsel of Record

mailto:dharawa@naacpldf.org


1

TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................ ii

INTERESTS OF AMICUS CURIAE...........................1

INTRODUCTION..........................................................2

ARGUMENT.................................................................. 5

I. THE FOURTEENTH AMENDMENT WAS
INTENDED TO GUARANTEE IMPORTANT 
RIGHTS TO ALL PEOPLE AND TO ACT 
AS A GUARD AGAINST STATES ABUSING 
THOSE RIGHTS.......................................................5

II. THE FRAMERS WOULD HAVE INTENDED
FOR THE EXCESSIVE FINES CLAUSE TO 
APPLY TO THE STATES..................................... 17

III. THE COURT SHOULD MORE CLOSELY
ALIGN ITS PAST INCORPORATION 
CASES WITH THE HISTORY ANIMATING 
THE FOURTEENTH AMENDMENT................ 22

CONCLUSION.............................................................30

PAGE



TABLE OF AUTHORITIES

PAGE IS)

CASES:

Apodaca v. Oregon,
406 U.S. 404 (1972)............................. 4-5, 23-24, 25

Apprendi v. New Jersey,
530 U.S. 466 (2000).................................................... 5

Brown v. Bd. of Educ. of Topeka,
347 U.S. 483 (1954)..... ,............................................. 1

Browning-Ferris Indus, of Vt., Inc. v.
Kelco Disposal, Inc.,
492 U.S. 257 (1989)......................................   17

The Civil Rights Cases,
109 U.S. 3 (1883).........................................................8

Cooper v. Aaron,
358 U.S. 1 (1958).........................................................1

Cooper Indus., Inc. v. Leatherman Tool Grp., Inc.,
532 U.S. 424 (2001).................................................. 18

District of Columbia v. Heller,
554 U.S. 570 (2008).................................................... 6

Duncan v. Louisiana,
391 U.S. 145 (1968).................................................... 6



Ill

PAGE(S)

Hurtado u. California,
110 U.S. 516 (1884)............................................. 4, 23

In re Winship,
397 U.S. 358 (1970)................................ .................24

Indiana v. Timbs,
84 N.E.3d 1179 (Ind. 2017).................................... 18

Johnson v. Louisiana,
406 U.S. 356 (1972)..................................................24

Loving v. Virginia,
388 U.S. 1 (1967).........................................................1

McDonald v. City of Chicago,
561 U.S. 742 (2010)........................................ passim

Minneapolis & St. Louis R.R. v. Bombolis,
241 U.S. 211 (1916)............................................. 4, 23

Parklane Hosiery v. Shore,
439 U.S. 322 (1979)..................................................23

United States v. Bajakajian,
524 U.S. 321 (1998).................................................. 17

United States v. Booker,
543 U.S. 220 (2005).............................................5, 24

United States v. Louisiana,
225 F. Supp. 353 (E.D. La. 1963)...........................26



IV

AMENDMENTS:

PAGE(S)

U.S. Const, amend. VIII.............................................. 19

OTHER AUTHORITIES:

Jack M. Balkin & Reva B. Siegel, The American
Civil Rights Tradition: Anticlassification or 
Antisubordination,
58 U. Miami L. Rev. 9 (2004).................................. 14

DeNeen L. Brown, When Portland Banned 
Blacks: Oregon’s Shameful History as an 
All-White’ State, WASH. POST (June 7, 2017)...... 27

Pamela Chan, et al., Forced to Walk a Dangerous 
Line: The Causes and Consequences of Debt in 
Black Communities, PROSPERITY Now 
(March 2018), https://prosperitynow.org/sites/
default/files/resources/Forced%20to%20 
Walk%20a%20Dangerous%20Line.pdf................ 21

Douglas L. Colbert, Liberating the Thirteenth 
Amendment,
30 Harv. C.R.-C.L. L. Rev. 1 (1995).........................8

Beth A. Colgan, Reviving the Excessive Fines
Clause, 102 CAL. L. REV. 277 (2014).................... 22

C o n g . G l o b e , 38th Cong., 1st sess. (1864) ............6

Cong. Globe, 39th Cong., 1st sess.
(1866) .............................................. 12, 13, 14, 15, 19

https://prosperitynow.org/sites/


V

CONG. Globe, 42d Cong., 1st sess. (1871)..........16, 29

Council of Economic Advisers Issue Brief,
Fines, Fees, and Bail (Dec. 2015), 
https://obamawhitehouse.archives.gov/sites/ 
default/files/page/files/1215_ceaj:ine_fee_ 
b ail_is sue Jbr ief. p df.................................................. 19

Crim. Justice Policy Program at Harv.
L. Sch., Confronting Criminal Justice Debt: A 
Guide for Policy Reform (Sep. 2016), 
http://cjpp.law.harvard.edu/assets/Confronting- 
Crim-Justice-Debt-Guide-to-Policy-Reform-

PAGE(S)

FINAL.pdf........................................... ...................... 20

Michael Kent Curtis, No State Shall 
Abridge: The Fourteenth Amendment 
and the Bill of Rights (1986)................. 10, 12, 16

Mika’il DeVeaux, The Trauma of the 
Incarceration Experience,
48 Harv. C.R.-C.L. L. Rev. 257 (2013)................. 22

Paul Finkelman, John Bingham and the 
Background to the Fourteenth Amendment,
36 Akron L. Rev. 671 (2003)..........................8, 9, 10

Paul Finkelman, This Historical Context 
of the Fourteenth Amendment,
13 Temp. Pol. & Civ. Rts. L. Rev. 389
(2004)................................................... 7, 8, 11, 12, 16

https://obamawhitehouse.archives.gov/sites/
http://cjpp.law.harvard.edu/assets/Confronting-Crim-Justice-Debt-Guide-to-Policy-Reform-
http://cjpp.law.harvard.edu/assets/Confronting-Crim-Justice-Debt-Guide-to-Policy-Reform-


V I

John Hope Franklin, The Civil Rights Act of 1866 
Revisited, 41 HASTINGS L.J. 1135 (1990)..............12

Guy Gugliotta, New Estimate Raises Civil War 
Death Toll, N.Y. TIMES (Apr. 2, 2012), 
https://www.nytimes.com/2012/04/03/ 
science/civil-war-toll-up-by-20-percent- 
in-new-estimate.html..............................................2

Aliza B. Kaplan & Amy Saack, Overturning 
Apodaca v. Oregon Should Be Easy:
Nonunanimous Jury Verdicts in 
Criminal Cases Undermine the Credibility 
of Our Justice System,
95 OR. L. rev . 1 (2016)......................................27, 28

Dan Kopf, The Fining of Black America, 
PRICEONOMICS (June 24, 2017), 
https://priceonomics.com/the-fining-of-black- 
america/...................................................................... 21

Letter from Jesse Shortess to John Sherman,
John Sherman Papers, Library of Congress, 
Washington, D.C. (Dec. 24, 1865)............... ...............

Gerard N. Magliocca, The Father of the 14th 
Amendment, N.Y. TIMES (Sept. 17, 2003).............13

PAGE(S)

https://www.nytimes.com/2012/04/03/
https://priceonomics.com/the-fining-of-black-america/
https://priceonomics.com/the-fining-of-black-america/


PAGE(S)

Katherine D. Martin et al., Shackled to Debt: 
Criminal Justice Financial Obligations 
and the Barriers to Re-entry They Create,
Harv. Kennedy Sch. & Nat’l Inst, of 
Justice (Jan. 2017),
http s ://ww w. ncj r s. go v/p dffiles l/nij/249976.pdf....21

Michael Martinez, et al., Policing for Profit:
How Ferguson’s Fines Violated Rights of 
African-Americans, CNN (Mar. 6, 2015), 
https://www.cnn.com/2015/03/06/us/ferguson- 
missouri-racism-tickets-fines/index.html ........20

William E. Nelson,
The Fourteenth Amendment:
From Political Principle to Judicial 
Doctrine (1995)..............................................passim

Roopal Patel & Meghna Philip, Criminal Justice 
Debt, A toolkit for Action,
Brennan Ctr. for Justice (2012),
http s ://www .brennancenter .or g/sites/
default/files/legacy/publications/Criminal
%20Justice%20Debt%20Background%20
for%20web.pdf..........................................................22

John Silard, A Constitutional Forecast:
Demise of the “State Action” Limit on the 
Equal Protection Guarantee,
66 COLUM. L. rev . 855 (1966)................................ 8

https://www.cnn.com/2015/03/06/us/ferguson-missouri-racism-tickets-fines/index.html
https://www.cnn.com/2015/03/06/us/ferguson-missouri-racism-tickets-fines/index.html


V l l l

PAGE(S)

Robert J. Smith & Bidish J. Sarma,
How and Why Race Continues to Influence
the Administration of Criminal Justice
in Louisiana, 72 La . L. Rev. 361(2012)...........25, 26

Speech of John A. Bingham, In Support of the 
Proposed Amendment to Enforce the 
Bill of Rights (Feb. 28, 1866), 
https ://archive .or g/stream/onecountryonecon
00bing#page/nl.........................................................13

Joseph Story, Commentaries on the 
Constitution of the United States 
§ 1896 (1833)............................................................. 17

13th Amendment to the U.S. Constitution:
Abolition of Slavery, America’s Historical 
Documents, N a t ’l  ARCHIVES, 
http s ://www. archives. go v/historical- docs/ 
13th-amendment (last visited Sep. 4, 2018)...........7

U.S. Comm’n on Civil Rights, Targeted 
Fines and Fees Against Communities 
of Color: Civil Rights & Constitutional 
Implications (Sept. 2017), 
https://www.usccr.gov/pubs/docs/ 
Statutory_Enforcement_
Report2017.pdf............................................ 20, 21, 22

https://www.usccr.gov/pubs/docs/


INTERESTS OF AMICUS CURLAE

From its earliest advocacy led by Justice 
Thurgood Marshall, the NAACP Legal Defense and 
Educational Fund, Inc. (“LDF”) has strived to secure 
the constitutional promise of equality for all people. 
Petitioner asks the Court to consider an important 
question about the Fourteenth Amendment’s reach, 
which, more than any other constitutional provision, 
embodies our Nation’s commitment to equal justice 
under the law.

Since its founding close to 80 years ago, LDF has 
been at the forefront of efforts to enforce the 
Fourteenth Amendment’s promise of equality. See, 
e.g., Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 
(1954); Cooper v. Aaron, 358 U.S. 1 (1958); Loving v. 
Virginia, 388 U.S. 1 (1967). LDF submits this brief to 
help the Court decide whether the Fourteenth 
Amendment’s Due Process Clause incorporates the 
Eighth Amendment’s Excessive Fines Clause. LDF 
also submits this brief to propose an approach to 
incorporation that more closely aligns with the anti­
subordination principle at the core of the Fourteenth 
Amendment.1

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus 
curiae state that no counsel for a party authored this brief in 
whole or in part and that no person other than amicus curiae, its 
members, or its counsel made a monetary contribution to the 
preparation or submission of this brief. All parties have 
consented to the filing of this brief.



2
INTRODUCTION

150 years ago, the Nation faced a defining 
moment. A bloody Civil War about whether Southern 
States would be able to continue to enslave Black 
people had torn the country in two. After defeating 
the Confederacy, at a cost of more than 600,000 lives,2 
the Union had to devise a way not only to guarantee 
formerly enslaved Black people equal rights, but also 
to protect these newly-won rights from Southern 
aggression.

Congress began by adopting the Thirteenth 
Amendment to end slavery, which the States ratified. 
The Southern States responded to slavery’s abolition 
by enacting the Black Codes—laws designed to 
repress African Americans and recreate slavery-like 
conditions. To combat the Black Codes, Congress 
passed the Civil Rights Act of 1866, which gave the 
Federal Government power to protect the civil rights 
of Black Americans. But there was a question of the 
Act’s constitutionality, so Congress proposed another 
constitutional amendment to remedy that concern: 
The Fourteenth Amendment.

The Fourteenth Amendment had two important 
purposes. One, it guaranteed equal rights to all people 
in all States, particularly African Americans. Two, it 
provided the Federal Government with the power to 
protect these rights should States try to infringe on

2 See Guy Gugliotta, New Estimate Raises Civil War Death Toll, 
N.Y. Times (Apr. 2, 2012),
https://www.nytimes.com/2012/04/03/science/civil-war-toll-up- 
by-20-percent-in-new-estimate.html.

https://www.nytimes.com/2012/04/03/science/civil-war-toll-up-by-20-percent-in-new-estimate.html
https://www.nytimes.com/2012/04/03/science/civil-war-toll-up-by-20-percent-in-new-estimate.html


3
them. Congress designed the Amendment to radically 
shift the federal-state balance of power. The States 
ratified the Fourteenth Amendment on July 28, 1868.

This Court has held that the first section of the 
Fourteenth Amendment incorporates at least some of 
the Bill of Rights against the States, although there 
has been disagreement over whether incorporation is 
proper under the Amendment’s Due Process Clause 
or Privileges and Immunities Clause. See McDonald 
v. City of Chicago, 561 U.S. 742, 754-767 (2010) 
(recounting the various approaches to incorporation). 
It is almost universally accepted, however, that the 
incorporation analysis must begin by putting the 
Amendment in its historical context and examining 
the intent of the Framers. See, e.g., id. at 778 (looking 
at what the Framers “counted” as a “fundamental 
right []”); id. at 842 (Thomas, J., concurring) (looking 
at what the Framers “understood”); id. at 863 
(Stevens, J., dissenting) (looking at the “historical 
evidence” of what the Framers “thought”); id at 918 
(Breyer, J., dissenting) (taking “account of the 
Framers’ basic reason[ing]”).

The Framers intended the Fourteenth 
Amendment to be a bulwark against States infringing 
on citizens’ civil rights, with special attention to the 
invidious tactics Southern States used to strip African 
Americans of their rights. As a result, a critical 
question that the Court should ask during an 
incorporation inquiry is whether the right at issue 
protects against the kind of tactics Southern States 
used to repress Black people in the post-Civil War



4
period. If the right does, then the Framers would have 
intended for it to be incorporated against the States.

Under this test, the Court should hold that the 
Eighth Amendment Excessive Fines Clause is 
incorporated against the States. The Framers would 
have intended the constitutional protection against 
disproportionate financial punishment to apply 
equally across the country to ensure that States do 
not use debilitating fines and forfeitures as a tool to 
subjugate citizens.

The framework proposed in this brief also opens 
the door to reexamining other aspects of this Court’s 
incorporation doctrine. Given that the Court has 
recognized a shift in its incorporation jurisprudence, 
and has incorporated most of the Bill of Rights, see 
McDonald, 561 U.S. at 764-65 & n.12, the Court 
should take the opportunity in appropriate cases to 
revisit its rulings refusing to incorporate three of the 
Bill of the Rights’ guarantees. See Hurtado v. 
California, 110 U.S. 516 (1884) (refusing to
incorporate Fifth Amendment’s Grand Jury Clause); 
Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 
211 (1916) (same for Seventh Amendment civil jury 
trial right); Apodaca v. Oregon, 406 U.S. 404 (1972) 
(same for Sixth Amendment unanimous jury verdict 
right).

Most pressing is the need for the Court to revisit 
Apodaca—its decision refusing to incorporate the 
Sixth Amendment right to a unanimous jury verdict 
in a criminal trial. Apodaca is inconsistent with this 
Court’s current jurisprudence, as eight of the Justices



5
in Apodaca believed the Sixth Amendment applied to 
the States and the Federal Government equally, and 
the Court has repeatedly held the Sixth Amendment 
requires unanimity in federal criminal trials. See, e.g., 
United States v. Booker, 543 U.S. 220, 230 (2005); 
Apprendi v. New Jersey, 530 U.S. 466, 476 (2000). 
Moreover, the Apodaca plurality opinion was based 
on the notion that there was no “proof’ unanimity was 
needed to protect defendants from prejudice and 
ensure minority jurors have a voice during 
deliberations. Yet Louisiana and Oregon, the only 
states with non-unanimous jury provisions, 
specifically enacted the provisions to silence minority 
jurors and more easily convict minority defendants. 
Applying the incorporation lens proposed in this brief 
confirms that Apodaca was wrongly decided.

ARGUMENT

I. THE FOURTEENTH AMENDMENT WAS 
INTENDED TO GUARANTEE IMPORTANT 
RIGHTS TO ALL PEOPLE AND TO ACT AS 
A GUARD AGAINST STATES ABUSING 
THOSE RIGHTS.

In recent years, when determining whether to 
incorporate a provision of the Bill of Rights, the Court 
has put itself in the shoes of the “Framers and 
ratifiers of the Fourteenth Amendment” and asked 
whether they would have intended to incorporate the 
right against the States to maintain “our system of 
ordered liberty.” McDonald, 561 U.S. at 778. When 
undertaking this inquiry, the Court has considered



6
contemporaneous congressional statements.3 It has 
also placed the Amendment in context by looking at 
the “history that the [framing] generation knew.” 
District of Columbia v. Heller, 554 U.S. 570, 598 
(2008).4 Thus, the starting place for an incorporation 
question is the history of the Fourteenth Amendment.

After the Civil War, “Congress was [called] to 
devise a formula, in which the South would acquiesce, 
‘to secure in a more permanent form the dear bought 
victories achieved in the mighty conflict.”’5 As 
Massachusetts Senator Henry Wilson said, the goal 
was to ensure that “the curse of civil war may never 
be visited upon us again.”6 The Reconstruction 
Congress was determined to secure “lawful liberty”

3 See, e.g., McDonald, 561 U.S. at 772 (quoting statements of Sen. 
Henry Wilson); id. at 775 (quoting statements of Rep. John 
Bingham); id. (quoting statements of Sen. Samuel Pomeroy); 
District of Colum bia v. Heller, 554 U.S. 570, 616 (2008) (quoting 
statements of Sen. Davis and Rep. Nye).
4 See also McDonald, 561 U.S. at 745 (taking a “survey of the 
contemporaneous history” of the Fourteenth Amendment); id. at 
762 (looking at “[e]vidence from the period immediately 
following the ratification of the Fourteenth Amendment”); 
Duncan v. Louisiana, 391 U.S. 145, 155-56 (1968) (looking at the 
“history and experience” of “ [t] hose who wrote our constitutions,” 
when deciding whether the Sixth Amendment jury trial right is 
incorporated against the States).
5 William E. Nelson, The Fourteenth Amendment: From 
Political Principle to Judicial Doctrine 44 (1995) (quoting 
Governor’s Message, Des Moines Iowa State Register, p.3 col. 7 
(Jan. 15, 1868)).
6 CONG. Globe, 38th Cong., 1st sess. 1203 (1864) (statement of 
Sen. Henry Wilson).



7
“in all the states of the Union, and to all the people, 
white and black alike.”7

To that end, almost immediately after the War, 
the country ratified the Thirteenth Amendment, 
abolishing slavery.8 Still, the Southern States were 
unwilling to end the institution. As one Southern 
legislator wrote Ohio Senator John Sherman, the 
South was “determined to do by policy what fit] had 
failed to do with arms.”9 Although many Southern 
whites “conceded that blacks were no longer slaves of 
individual masters,” they “intended to make them 
slaves of society.”10 As a Union Army commander in 
Virginia put it: Southern whites wanted to reduce 
Black people “to a condition which will give the former 
masters all the benefits of slavery, and throw upon 
them none of its responsibilities.”11

7 NELSON, supra note 5, at 43 (quoting The Source of Mr. Steven’s 
Power, N.Y. EVENING POST, p.3 col 1 (Mar. 14, 1866)).
8 See 13th Amendment to the U.S. Constitution: Abolition of 
Slavery, America’s Historical Documents, Nat’L ARCHIVES, 
https://www.archives.gov/historical-docs/13th-amendment (last 
visited Sep. 4, 2018).
9 NELSON, supra note 5, at 41 (Letter from Jesse Shortess to John 
Sherman, JOHN SHERMAN PAPERS, LIBRARY OF CONGRESS, 
Washington, D.C. (Dec. 24, 1865)).
10 Paul Finkelman, This Historical Context of the Fourteenth 
Amendment, 13 Temp. POL. & ClV. RTS. L. Rev. 389, 400 (2004) 
(quotation marks omitted) (“Historical Context”).
11 NELSON, supra note 5, at 43.

https://www.archives.gov/historical-docs/13th-amendment


8
To recreate a slavery-like existence, between 1865 

and 1866,12 Southern States passed “infamous black 
codes,”13 “designed to replicate, as closely as possible, 
the pre-war suppression and exploitation of blacks.”14 
“The Black Codes represented a legalized form of 
slavery in which each southern state perpetuated the 
master-slave relationship by passing apprenticeship 
laws, labor contract laws, vagrancy laws and 
restrictive travel laws . . . denying African Americans 
civil rights and due process of law.”15

For example, Louisiana passed a law resembling 
“antebellum fugitive slave laws,” which made it a 
crime to “persuade or entice away, feed, harbor or 
secret any person who leaves his or her employer.”16

12 See John Silard, A Constitutional Forecast: Demise of the 
“State Action” Limit on the Equal Protection Guarantee, 66 
COLUM. L. REV. 855, 869 (1966).
13 NELSON, supra note 5, at 43.
14 Finkelman, Historical Context, supra note 10, at 402. See also 
The Civil Rights Cases, 109 U.S. 3, 36-37 (1883) (Harlan, J., 
dissenting) (“Recall the legislation of 1865-66 in some of the 
States, of which this court, in the Slaughterhouse Cases, said 
that it imposed upon the colored race onerous disabilities and 
burdens; curtailed their rights in the pursuit of life, liberty, and 
property to such an extent that their freedom was of little value; 
forbade them to appear in the towns in any other character than 
menial servants; required them to reside on and cultivate the 
soil, without the right to purchase or own it; excluded them from 
many occupations of gain; and denied them the privilege of 
giving testimony in the courts where a white man was a party.”).
15 Douglas L. Colbert, Liberating the Thirteenth Amendment, 30 
HARV. C.R.-C.L. L. Rev. 1, 55 n.62 (1995).
16 Paul Finkelman, John Bingham and the Background to the 
Fourteenth Amendment, 36 AKRON L. Rev. 671, 681-82 (2003) 
(quotation marks omitted).



9
Mississippi passed a law requiring Black people to 
“have a lawful home or employment” and then passed 
a vagrancy law that “allowed government authorities 
to auction off . . . any black who did not have a labor 
contract.”17 Georgia passed a vagrancy law that 
allowed “vagrants” to be “arrested and sentenced to 
work on the public roads . . .  or be bound-out for up to 
a year to someone.”18 And Alabama’s vagrancy law 
“allowed for the incarceration in the public workhouse 
of any laborer or servant who loiters away his time, or 
refuses to comply with any contract for a term of 
service without just cause.”19 These laws, and many 
others like them, created a “new system of forced 
labor,” reducing Black people “to a status somewhere 
between that of slaves (which they no longer were) 
and full free people (which most white southerners 
opposed).”20

The Southern campaign to subjugate Black 
people was not limited to repressive laws. It also 
included horrific and widespread violence. To that 
point, in 1866, several U.S. Military leaders testified 
to Congress about the pervasive violence perpetrated 
by whites against Blacks in the former Confederacy. 
Major General Clinton Fisk testified about Southern 
whites pursuing Black people “with vengeance and 
treat[ing] them with brutality.”21 Major General

17 Id. at 683 (quotation marks omitted).
18 Id. (quotation marks omitted).
19 Id. at 684 (quotation marks omitted).
20 Id. at 685 (parentheticals omitted).
21 Id. at 688.



10
Edward Hatch testified that Black people understood 
that they were “not safe from the poor whites,” and 
that if they resisted the “reestablishment of bondage 
then they were liable to be shot.”22 When Lieutenant 
Colonel R.W. Barnard was asked if it was safe to 
remove Union troops from Tennessee, he responded 
by relating what someone else had told him: “I tell you 
what, if you take away the military from Tennessee, 
the buzzards can’t eat up the niggers as fast as we’ll 
kill 'em.”23 Massachusetts Senator Charles Sumner 
received a “box containing the finger of a black man,” 
with a note that read, “‘You old son of a bitch, I send 
you a piece of one of your friends.’”24

White abolitionists and Union sympathizers also 
faced Southern aggression.25 White people were 
“thrown into prison” for telling freed Black people 
“they were rightfully entitled to vote.”26 
Massachusetts Representative Benjamin Butler 
described the dire situation: “Northerners could not 
go South and argue the principles of free government 
without fear of the knife or pistol, or of being 
murdered by a mob.”27

It was against this backdrop the Reconstruction 
Congress was compelled to act. It was clear that the

22 Id. at 687-88. (quotation marks omitted).
23 Id. at 688 (quotation marks omitted).
24 Id. at 685.
25 See, e.g., Michael Kent Curtis, No State Shall Abridge: 
The Fourteenth Amendment and the Bill of Rights 136 
(1986).
26 Id. at 135-36.
27 NELSON, supra note 5, at 42 (quotation marks omitted).



11
Thirteenth Amendment could not sufficiently protect 
the rights of African Americans, and that a shift in 
the federal-state power balance was needed if Black 
people were to be protected. Thus, in December 1865, 
Congress formed the Joint Committee on 
Reconstruction. The Committee consisted of six 
Senators and nine Congressmen, who were charged 
with “investigat[ing] conditions in the South.”28 As 
part of its investigation, the Committee “interviewed 
scores of people—former slaves, former confederate 
leaders and slave owners, United States Army 
officers, and others in the South.”29

Out of this Committee came the country’s first 
attempt to pass a law aimed at remediating the 
abuses perpetrated in the South under the Black 
Codes—the Civil Rights Act of 1866.30 The Act 
declared that “all persons” “of every race and color, 
without regard to any previous condition of slavery or 
involuntary servitude . . . shall have the same right[s] 
in every State and Territory in the United States” and 
“full and equal benefit of all laws and proceedings . . . 
as enjoyed by white citizens.”31

There were widespread concerns with the Act, 
however. Some, including President Andrew Johnson, 
questioned its constitutionality, believing that “the 
Constitution did not confer on Congress the power to

28 Finkelman, Historical Context, supra note 10, at 400.
29 Id.
30 Act of April 9, 1866, ch. 31, 14 Stat. 27.
31 Id. § 1.



12
make rules to regulate the acts of states.”32 A 
contingent of congressmen agreed with President 
Johnson and bemoaned this lack of power, 
complaining that “the citizens of the South and of the 
North going South have not hitherto been safe in the 
South, for want of constitutional power in Congress to 
protect them.”33 Others thought that the Act, even if 
constitutional, did not go far enough; that the Act’s 
protections could be easily rescinded should the 
political winds change.34

The Joint Committee thus did not stop with the 
Civil Rights Act. It also proposed a constitutional 
amendment.35 “ [T]he Committee concluded that 
nothing short of a Constitutional amendment—what 
became the Fourteenth Amendment—would protect 
the rights of the former slaves.”36 The Committee 
knew it was “framing an amendment of our 
fundamental law, which may exist for centuries 
without change.”37 The Committee also understood it 
was “making history, and laying foundations for our 
future national building.”38 This was going to be the 
amendment that “securjed] the fruits both of the war 
and of the three decades of antislavery agitation

32 John Hope Franklin, The Civil Rights Act of 1866 Revisited, 
41 Hastings L.J. 1135,1136 (1990).
33 CURTIS, supra note 25, at 138-139.
34 See CURTIS, supra note 25, at 55, 62-63, 86.
35 Finkelman, Historical Context, supra note 10, at 400.
36 Id. at 401.
37 CONG. Globe, 39th Cong., 1st sess. 385 (1866) (statement of 
Rep. Jehu Baker).
38 NELSON, supra note 5, at 45 (quotation marks omitted).



13
proceeding it.”39 To meet these goals, the Framers 
designed the amendment to: (1) guarantee all people, 
especially Black people, the privileges enshrined in 
the Bill of Rights, and (2) protect citizens’ rights from 
potential State abuse.

When debating the proposed amendment, Ohio 
Congressman John Bingham—“The Father” of the 
Fourteenth Amendment40—explained that “the 
States of the Union [] have flagrantly violated the 
absolute guarantees of the Constitution of the United 
States to all its citizens.”41 He therefore declared that 
it was “time that [they] take security for the future, 
so that like occurrences may not again arise to 
distract our people and finally to dismember the 
Republic.”42

Bingham later gave a speech “[i]n support of the 
proposed amendment to enforce the Bill of Rights.”43 
Bingham made clear that an animating feature of the 
proposed amendment was that it would prohibit 
legislation “and practices that reduce groups to the

39 NELSON, supra note 5, at 61.
40 Gerard N. Magliocca, The Father of the 14th Amendment, N.Y.
Times (Sept. 17, 2003),
https://opinionator.blogs.nytimes.com/2013/09/17/the-father-of- 
the-14th-amendment/.
41 CONG. Globe, 39th Cong., 1st sess. 158 (1866) (statement of 
Rep. John Bingham).
42 Id.
43 Id. at 1088; see Speech of John A. Bingham, In Support of the 
Proposed Amendment to Enforce the Bill of Rights (Feb. 28, 
1866),
https://archive.Org/stream/onecountryonecon00bing#page/nl.

https://opinionator.blogs.nytimes.com/2013/09/17/the-father-of-the-14th-amendment/
https://opinionator.blogs.nytimes.com/2013/09/17/the-father-of-the-14th-amendment/
https://archive.Org/stream/onecountryonecon00bing%23page/nl


14
position of a lower or disfavored caste.”44 Bingham 
declared that the amendment was “essential to the 
safety of all people of every State” as it “arm[s] the 
Congress of the United States, by the consent of the 
people of the United States, with the power to enforce 
the bill of rights as it stands in the Constitution 
today.”45

Other key congressmen described the proposed 
amendment similarly. Representative Thaddeus 
Stevens explained that up until that point, the 
“Constitution limit[ed] only the action of Congress, 
and [was] not a limitation on the States. This 
amendment supplies that defect. . .  ,”46 Senator Jacob 
Howard of Michigan pointed out that there was “no 
power given in the Constitution to enforce and to 
carry out any of the [Bill of Rights’] guarantees.”47 
Thus, the “great object” of the proposed amendment 
was “to restrain the power of the States and compel 
them at all times to respect these great fundamental 
guarantees.”48 Illinois Representative Jehu Baker put 
a finer point on why Congress needed to pass the 
amendment, asking, “What business is it of any State

44 Jack M. Balkin & Reva B. Siegel, The American Civil Rights 
Tradition: Anticlassification or Antisuh or dination, 58 U. MIAMI 
L. REV. 9, 9-10 & n.5 (2004).
45 CONG. Globe, 39th Cong., 1st sess. 1088 (1866) (statement of 
Rep. John Bingham).
46 Cong. Globe, 39th Cong., 1st sess. 2459 (1866) (statement of 
Rep. Thaddeus Stevens).
47 Cong. Globe, 39th Cong., 1st sess. 2765 (1866) (statement of 
Sen. Jacob Howard).
48 Id. at 2766.



15
to do things here forbidden [by the Bill of Rights]? [T]o 
rob the American citizen of rights thrown around him 
by the supreme law of the land?”49 Baker went on: 
“When we remember to what an extent this has been 
done in the past, we can appreciate the need of 
putting a stop to it in the future.”50

Representative Bingham eloquently summed up 
the State abuses that made the protections embodied 
in the Fourteenth Amendment necessary:

The States never had the right, though 
they had the power, to inflict wrongs 
upon free citizens by a denial of the full 
protection of the laws . . . .  [T] he States 
did deny to citizens the equal protection 
of the laws, they did deny the rights of 
citizens under the Constitution, and 
except to the extent of the express 
limitations upon the States . . . the citizen 
had no remedy. They denied trial by jury, 
and he had no remedy. They took 
property without compensation, and he 
had no remedy. They restricted the 
freedom of the press, and he had no 
remedy. They restricted the freedom of 
speech, and he had no remedy. They 
restricted the rights of conscience, and he

49 CONG. Globe, 39th Cong., 1st sess. app’x at 256 (1866) 
(statement of Rep. Jehu Baker).
50 Id.



16
had no remedy. They bought and sold 
men who had no remedy. 51

Bingham concluded by explaining that the 
Constitution, with the ratification of the Fourteenth 
Amendment, now provided a remedy against such 
abuses:

Who dare say, now that the Constitution 
has been amended, that the nation 
cannot by law provide against all such 
abuses and denials of right as these in 
States and by States, or combinations of 
persons? 52

In short, the Fourteenth Amendment’s historical 
context shows that the Framers’ “goals were sweeping 
and broad.”53 And, after much debate, the Thirty- 
Ninth Congress adopted the Fourteenth Amendment, 
reflecting discontent “with the protection individual 
liberties had received from the states” and “increased 
concern for the rights of blacks.”54 Congress wanted 
citizens, especially Black citizens, to be “shielded from 
hostile state action.”55 And to achieve these goals, 
Congress, by passing the Fourteenth Amendment, 
“significantly altered our system of government.” 
McDonald, 561 U.S. at 807.

51 CONG. Globe, 42d Cong.. 1st sess. app’x at 85 (1871). 
(statement of Rep. John Bingham).
52 Id.
53 Finkelman, Historical Context, supra note 10, at 409.
54 CURTIS, supra note 25, at 91.
55 Id.



17
II. THE f r a m e r s  w o u l d  h a v e  in t e n d e d

FOR THE EXCESSIVE FINES CLAUSE TO 
APPLY TO THE STATES.

With this history in mind, this Court should hold 
that the Fourteenth Amendment incorporates the 
Excessive Fines Clause. Because the Clause protects 
against abusive governmental practices of the kind 
commonly used to subjugate Black people in the post- 
Civil War period, the Framers would have intended 
its protections to apply against the States.

The Court has explained that the Excessive Fines 
Clause “was taken verbatim from the English Bill of 
Rights of 1689.” United States v. Bajakajian, 524 U.S. 
321, 335 (1998) (citing Browning-Ferris Indus, of Vt., 
Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 266-267 
(1989)). And the Excessive Fines Clause in the 
English Bill of Rights “was a reaction to the abuses of 
the King’s judges during the reigns of the Stuarts.” Id. 
The Founders included the Clause in the U.S. 
Constitution “as an admonition . . . against such 
violent proceedings, as had taken place in England,” 
including “ [ejnormous fines and amercements [that] 
were . . . sometimes imposed.”56 Based on this history, 
this Court emphasized that the “primary focus of the 
[Eighth] Amendment is [to protect against] the 
potential for governmental abuse of its prosecutorial 
power.” Browning-Ferris, 492 U.S. at 266 (emphasis 
added).

56 Joseph Story, Commentaries on the Constitution of the 
United States § 1896, at 750-51 (1833).



18
The goal of the Eighth Amendment was to protect 

against the Government unfairly wielding its power 
to punish citizens. This was also a key concern of the 
Fourteenth Amendment. The Framers were aware of 
the evils that attend the unchecked ability to mete out 
punishment, and therefore intended the Fourteenth 
Amendment to protect against it. The Framers no 
doubt would have wanted the Eighth Amendment’s 
protection against excessive punishment—including 
excessive fines—to extend to the States. Consistent 
with what the Framers intended, the Court has said 
that the Fourteenth Amendment “makes the Eighth 
Amendment’s prohibition against excessive fines and 
cruel and unusual punishments applicable to the 
States.” Cooper Indus., Inc. v. Leatherman Tool Grp., 
Inc., 532 U.S. 424, 433-34 (2001).57

The Framers made their intent of incorporating 
the entire Eighth Amendment clear when debating 
the reach of the Fourteenth Amendment. Throughout 
the debates, congressmen repeatedly highlighted the 
concern of States using exorbitant punishment to 
suppress Black people with no federal recourse. For 
example, as Representative Bingham said when 
closing debate on the Fourteenth Amendment: “cruel 
and unusual punishments have been inflicted under 
State laws within this Union upon citizens not only 
for crimes committed, but for sacred duty done, for 
which and against which the Government of the 57

57 The Indiana Supreme Court believed this was dictum. See 
Indiana u. Timbs, 84 N.E.3d 1179, 1182 (Ind. 2017), cert, 
granted, 138 S. Ct. 2650 (2018) (Mem.).



19
United States had no provided remedy and could 
provide none.”58

The concerns of the Fourteenth Amendment’s 
Framers about States meting out unjust punishment 
did not turn on what form the punishment took. In 
other words, the Framers did not exalt the Eighth 
Amendment’s protection against “cruel and unusual 
punishments” over its protections against “excessive 
bail” or “excessive fines.” See U.S. Const, amend. VIII. 
The Framers believed that all unjust punishment— 
especially punishment targeted at disenfranchising 
Black people—was abhorrent. Bingham did not mince 
words on this point, declaring “ [i]t was an opprobrium 
to the Republic that for fidelity to the United States 
[that citizens] could not by national law be protected 
against the degrading punishment inflicted on slaves 
and felons by State law.”59 The Fourteenth 
Amendment repaired this injustice by “striking] 
down those State rights and investing] all power in 
the General Government.”60

The need for the Excessive Fines Clause to apply 
to the States is underscored by the fact that today, 
state and local governments increasingly use fines to 
punish crime.61 The money from the fines is then used

58 CONG. Globe, 39th Cong., 1st sess. 2542 (1866) (statement of 
Rep. John Bingham) (internal quotation marks omitted).
59 Id. at 2543.
60 Id. at 2500 (statement of Rep. George Shanklin).
61 See Council of Economic Advisers Issue Brief, Fines, 
Fees, and Bail at 2-3 (Dec. 2015),



20
to fund local government.62 As a result, the incentive 
to punish petty crime with excessive fines is greater 
than before.63 And compounding the harm, state and 
local governments are disparately imposing these 
fines against Black Americans and other people of 
color.64 This type of discriminatory punishment is the 
kind of wrong the Framers designed the Fourteenth 
Amendment to protect against.

Last fall, the U.S. Commission on Civil Rights 
issued a report entitled Targeted Fines and Fees 
Against Communities of Color.65 One of the Report’s 
key findings was that “unchecked discretion [and] 
stringent requirements to impose fines or fees can 
lead and have led to discrimination and inequitable 
access to justice when not exercised in accordance 
with protections afforded under [the Constitution] ,”66

https://obamawhitehouse.archives.gov/sites/default/files/page/fil 
es/1215_cea_fine_fee_bail_issue_brief.pdf.
62 Crim. Justice Policy Program at Harv. L. Sch., 
Confronting Criminal Justice Debt: A Guide for Policy 
Reform at 1 (Sep. 2016),
http://cjpp.law.harvard.edu/assets/Confronting-Crim-Justice- 
Debt-Guide-to-Policy-Reform-FINAL.pdf. 
es Id.
64 See, e.g., Michael Martinez, et al., Policing for Profit: How 
Ferguson’s Fines Violated Rights of African-Americans, CNN 
(Mar. 6, 2015), https://www.cnn.com/2015/03/06/us/ferguson- 
missouri-racism-tickets-fines/index.html.
65 U.S. Comm’n on Civil Rights, Targeted Fines and Fees
Against Communities of Color: Civil Rights &
Constitutional Implications (Sept. 2017), 
https://www.usccr.gov/pubs/docs/Statutory_Enforcement_Repor 
t2017.pdf.
66 Id. at 71.

https://obamawhitehouse.archives.gov/sites/default/files/page/fil
http://cjpp.law.harvard.edu/assets/Confronting-Crim-Justice-Debt-Guide-to-Policy-Reform-FINAL.pdf
http://cjpp.law.harvard.edu/assets/Confronting-Crim-Justice-Debt-Guide-to-Policy-Reform-FINAL.pdf
https://www.cnn.com/2015/03/06/us/ferguson-missouri-racism-tickets-fines/index.html
https://www.cnn.com/2015/03/06/us/ferguson-missouri-racism-tickets-fines/index.html
https://www.usccr.gov/pubs/docs/Statutory_Enforcement_Repor


21
The Report noted that since the 1980s, States and 
municipalities have increasingly used fines and fees 
as punishment for “low-level offenses” to “generate 
revenue.”67 The jurisdictions that use fines as a 
revenue source often “have a larger percentage of 
African Americans and Latinos relative to the 
demographics of the median municipality.”68 One 
article that the Report cited found that there was “one 
demographic that was most characteristic of cities 
that levy large amounts of fines on their citizens: a 
large African American population.”69

The amount of criminal debt people face today is 
staggering—“some 10 million people owe more than 
$50 billion from contact with the criminal justice 
system.”70 Failure to pay this debt has debilitating

67 Id. at 7.
68 Id. at 22. One study, after sampling “local governments in nine 
thousand cities,” found that “fines and fees contribute to the 
revenue for roughly 86% of cities and are higher in locales with 
larger Black populations.” Moreover, “[c]ities that have larger 
Black populations generate $12-$ 19 more in revenue from fees 
and fines per person, compared to those with smaller shares of 
Black citizens.” Pamela Chan, et ah, Forced to Walk a Dangerous 
Line: The Causes and Consequences of Debt in Black 
Communities, PROSPERITY Now at 10 (March 2018), 
https://prosperitynow.org/sites/default/files/resources/Forced%2 
0to%20Walk%20a%20Dangerous%20Line.pdf.
69 Dan Kopf, The Fining of Black America, PRICEONOMICS (June 
24, 2017), https://priceonomics.com/the-fining-of-black-america/.
70 Katherine D. Martin et al., Shackled to Debt: Criminal Justice 
Financial Obligations and the Barriers to Re-entry They Create, 
Harv. Kennedy Sch. & Nat’l Inst, of Justice at 5 (Jan. 2017), 
https://www.ncjrs.gov/pdffilesl/nij/249976.pdf.

https://prosperitynow.org/sites/default/files/resources/Forced%252
https://priceonomics.com/the-fining-of-black-america/
https://www.ncjrs.gov/pdffilesl/nij/249976.pdf


22
consequences,71 including “driver license suspension, 
which presents a significant barrier to employment”; 
“bad credit reports that can keep a family from 
renting or purchasing a home”; “and in some cases, 
jail time.”72 And people who are jailed for criminal 
debt must face all the residual effects, including the 
trauma of being “locked in a cage”73 “torn away from 
their communities and families”74; and the difficulty 
of “maintaining employment,” making it harder (if not 
impossible) to survive financially once released.75

Simply, the need for the Eighth Amendment to 
protect citizens from excessive fines is as evident 
today as it was in 1868. In line with the intent of the 
Framers, the Court should hold that the Fourteenth 
Amendment incorporates the Eighth Amendment’s 
Excessive Fines Clause.

III. THE COURT SHOULD MORE CLOSELY 
ALIGN ITS PAST INCORPORATION CASES 
WITH THE HISTORY ANIMATING THE 
FOURTEENTH AMENDMENT.

The Court has recognized that there has been a 
shift in its incorporation jurisprudence. Particularly,

71 See Beth A. Colgan, Reviving the Excessive Fines Clause, 102 
CAL. L. Rev. 277, 290-95 (2014).
72 U.S. COMM’N ON Civil Rights, supra note 65, at 35-36.
73 Mika’il DeVeaux, The Trauma of the Incarceration Experience, 
48 HARV. C.R.-C.L. L. rev . 257, 257 (2013).
74 Roopal Patel & Meghna Philip, Criminal Justice Debt, A 
toolkit for Action, BRENNAN CTR. FOR JUSTICE at 6 (2012), 
http s://www .brennancenter. or g/ sites/default/files/legacy/publica 
tions/Criminal%20Justice%20Debt%20Background%20for%20 
web.pdf.
73 Id.



23
the Court has “shed any reluctance to hold that rights 
guaranteed by the Bill of Rights me[e]t the 
requirements for protection under the Due Process 
Clause.” See McDonald, 561 U.S. at 764-65. This brief 
offers a more uniform approach to incorporation, 
which would also open a door to reexamining prior 
decisions refusing to incorporate certain provisions of 
the Bill of Rights.

When appropriate, the Court should revisit its 
cases refusing to incorporate the Fifth Amendment’s 
Grand Jury Clause and Seventh Amendment civil 
jury trial right. See Hurtado, 110 U.S. 516 (refusing 
to incorporate the Fifth Amendment’s Grand Jury 
Clause); Minneapolis & St. Louis R.R., 241 U.S. 211 
(same for Seventh Amendment civil jury trial right). 
The Founders believed that both rights were critical 
guards against oppressive government power;76 the 
Court should therefore reconsider whether they apply 
against the States.

Even more pressing, the Court should grant 
certiorari in an appropriate case to revisit its decision 
refusing to incorporate the Sixth Amendment’s 
unanimous jury verdict right. Apodaca, 406 U.S. 404

76 See Hurtado, 110 U.S. at 549, 558 (Harlan, J., dissenting) 
(explaining that the Founders “jealously guarded” the grand jury 
right because it “secures [a defendant] against unfounded 
accusation”); Parklane Hosiery v. Shore, 439 U.S. 322, 343 (1979) 
(Rehnquist, J., dissenting) (“The founders of our Nation 
considered the right of trial by jury in civil cases an important 
bulwark against tyranny and corruption, a safeguard too 
precious to be left to the whim of the sovereign, or, it might be 
added, to that of the judiciary.”).



24
(plurality op.).71 Apodaca is no longer compatible with 
this Court’s case law, and it is sharply inconsistent 
with the incorporation framework proposed in this 
brief.

In Apodaca, “eight Justices agreed that the Sixth 
Amendment applies identically to both the Federal 
Government and the States.” McDonald, 561 U.S. at 
766 n.14. And this Court recently reiterated that the 
Sixth Amendment requires unanimity in federal 
criminal trials. See Booker, 543 U.S. at 230 (“It has 
been settled throughout our history that the 
Constitution protects every criminal defendant 
‘against conviction except upon proof beyond a 
reasonable doubt of every fact necessary to constitute 
the crime with which he is charged.’” (quoting In re 
Winship, 397 U.S. 358, 364 (1970)). Thus, if eight of 
the Justices in Apodaca agreed that the Sixth 
Amendment applies identically to both the Federal 
Government and the States, applying the Court’s case 
law, unanimous jury verdicts should also be required 
in state criminal trials. Apodaca does not make sense 
considering this Court’s established law.

The Court should also revisit Apodaca because it 
is inconsistent with the intent of the Framers, who 
were particularly concerned with state practices that 
subjugate African Americans. The Apodaca plurality 
was based on a misapprehension of the protections 
unanimity provides against racial and ethnic 77

77 Apodaca was decided the same day as Johnson v. Louisiana, 
406 U.S. 356 (1972). Johnson held the Fourteenth Amendment 
did not itself require unanimity in state criminal trials.



25
prejudice infecting jury trials. Petitioners in Apodaca 
argued that unanimity protects against the silencing 
of minority jurors, and ensures convictions are based 
on evidence and not animus. See Apodaca, 406 U.S. at 
412-13. The plurality rejected this argument because 
it “simply [found] no proof for the notion that a 
majority will disregard its instructions and cast its 
votes for guilt or innocence based on prejudice rather 
than the evidence.” Id. at 413-14. Nor would the 
plurality “assume that the majority of the jury will 
refuse to weigh the evidence and reach a decision 
upon rational grounds . . .  or that a majority will 
deprive a man of his liberty on the basis of prejudice 
when a minority is presenting a reasonable argument 
in favor of acquittal.” Id.

But the history of Louisiana and Oregon’s non­
unanimity provisions reveals that the plurality was 
mistaken. Both states’ provisions were enacted with 
discriminatory intent and were designed to facilitate 
convictions over the dissent of minority jurors.

Louisiana adopted its non-unanimity provision 
during the state’s 1898 Constitutional Convention. As 
two scholars summarized: “the sinister purpose of the 
Convention was to create a racial architecture in 
Louisiana that could circumvent the Reconstruction 
Amendments and marginalize the political power of 
black citizens.”78 The Chair of the Convention’s

78 Robert J. Smith & Bidish J. Sarma, How and Why Race 
Continues to Influence the Administration of Criminal Justice in 
Louisiana, 72 La. L. Rev. 361, 374-75 (2012).



26

Judiciary Committee, Judge Thomas Semmes, openly 
declared that the Convention’s purpose was “to 
establish the supremacy of the white race.”79 “The 
Convention of 1898 interpreted its mandate from the 
[Louisiana] people to be, to disfranchise as many 
Negroes and as few whites as possible.” United States 
v. Louisiana, 225 F. Supp. 353, 371 (E.D. La. 1963).

Contemporaneous accounts reveal the purpose of 
the non-unanimous jury provision adopted at the 
Convention was to silence the voices of Black jurors. 
The provision would also make it easier for juries to 
convict Black people. One local newspaper espoused 
that “ [a]s a juror, [a Black person] will follow the lead 
of his white fellows in causes involving distinctive 
white interests; but if a negro be on trial for any 
crime, he becomes at once his earnest champion, and 
a hung jury is the usual result.”80 Another 
“commentator went so far as to claim that criminals 
would simply not be convicted because of the African- 
American presence in the jury box.”81 It was also 
widely believed that Black people were not of “much 
advantage in any capacity in the courts of law” 
because they were “ignorant, incapable of 
determining credibility, and susceptible to bribery.”82

79 Id. at 375 (quoting Official Journal of the Proceedings of the 
Constitutional Convention of the State of Louisiana: Held in New 
Orleans, Tuesday, February 8, 1898, at 374 (1898)).
80 Id. at 375 (quoting Future of the Freedman, DAILY PICAYUNE, 
Aug. 31, 1873, at 5).
81 Id. at 376 (citing The Present Jury System, DAILY PICAYUNE, 
Apr. 20, 1870, at 4). ■
82 Id. at 375-76.



27
These were the sentiments that sparked Louisiana to 
adopt its non-unanimity provision.

The history of Oregon’s non-unanimous jury 
provision is no better. In the late 1920s and early 
1930s, Oregon was in a “deep [] recession and caught 
up in the growing menace of organized crime and the 
bigotry and fear of minority groups.”83 Oregon was a 
“society where racism, religious bigotry, and anti­
immigrant sentiments were deeply entrenched in the 
laws, culture, and social life.”84

Amid all this, there was a high-profile murder 
trial. Jacob Silverman, a Jewish man, was charged 
with shooting Jimmy Walker, a Protestant.85 The jury 
convicted Silverman of manslaughter and hung on 
the murder charge 11-1 in favor of conviction.86 
Silverman was sentenced to three years in prison and 
fined $1000.87

83 Aliza B. Kaplan & Amy Saack, Overturning Apodaca v. Oregon 
Should Be Easy: Nonunanimous Jury Verdicts in Criminal 
Cases Undermine the Credibility of Our Justice System, 95 Or. 
L. REV. 1, 4 (2016) (quotation marks omitted).
84 Id. at 4 (quotation marks and brackets omitted). One stark 
example of Oregon’s bigoted past: Black people were banned 
altogether from the state in the mid-1800s. See DeNeen L. 
Brown, When Portland Banned Blacks: Oregon’s Shameful 
History as an ‘All-White’ State, WASH. POST (June 7, 2017), 
https://www.washingtonpost.eom/news/retropolis/wp/2017/06/0 
7/when-portland-banned-blacks-oregons-shameful-history-as- 
an-all-white-state/?utm_term=.a8d842e8ea01.
85 Kaplan & Saack, supra note 83, at 3.
86 Id. at 3-4.
87 Id. at 5.

https://www.washingtonpost.eom/news/retropolis/wp/2017/06/0


28
In response, the Oregon legislature “proposed a 

constitutional amendment allowing nonunanimous 
verdicts.”88 Articles in the local paper, The Morning 
Oregonian, highlighted the bigoted roots of the 
proposed amendment. One article specifically cited 
the Silverman case as coming “at exactly the right 
time to bring unprecedent pressure to bear upon the 
legislature.”89 Said another article, “Americans have 
learned, with some pain, that many peoples in the 
world are unfit for democratic institutions, lacking 
the traditions of the English-speaking peoples.”90 Yet 
another article lamented the “increased urbanization 
of American life” as “the vast immigration into 
America from southern and eastern Europe, of people 
untrained in the jury system, have combined to make 
the jury of twelve increasingly unwieldy and 
unsatisfactory.”91

Both Louisiana and Oregon’s non-unanimous jury 
provisions were founded in bigotry. These provisions 
therefore perpetuate the very abuses the Fourteenth 
Amendment prohibits. And the Framers considered 
the jury trial right an important right that must be 
fully protected against state abuse. As Representative 
Bingham said: before the Fourteenth Amendment, 
States “denied trial by jury,” but once it passed, the

88 Id. at 5.
89 Id. (quoting Jury Reform Up to Voters, MORNING OREGONIAN 
(Dec. 11, 1933) (quotation marks omitted).
90 Id. (quoting Debauchery of Boston Juries, MORNING 
OREGONIAN (Nov. 3, 1933) (quotation marks omitted).
93 Id. (quoting One Juror Against Eleven, MORNING OREGONIAN 
(Nov. 25, 1933) (quotation marks omitted).



Constitution would “provide against all such abuses 
and denials of right.”92

When presented with a case that raises the issue, 
the Court should revisit Apodaca and incorporate the 
Sixth Amendment’s unanimity requirement.

29

92 Cong. Globe, 42d Cong., 1st sess. 
(statement of Rep. John Bingham).

app’x. at 85 (1871)



30
CONCLUSION

150 years ago, when the Fourteenth Amendment 
was ratified, our Nation made its most significant 
step towards fulfilling the equality promised by the 
Declaration of Independence. The Fourteenth 
Amendment ensured that all citizens—Black and 
white—were guaranteed the rights embodied in the 
Constitution and provided protections should States 
try to deprive citizens of their rights. In accord with 
the Fourteenth Amendment’s purpose and the intent 
of its Framers, the Court should hold that the 
Fourteenth Amendment incorporates the Eighth 
Amendment’s Excessive Fines Clause.

Respectfully submitted,

Sherrilyn A. Ifill 
Director-Counsel 

Janai S. Nelson 
Samuel Spital 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street,
5th Floor
New York, NY 10006

September 11, 2018

Daniel S. Harawa* 
NAACP Legal Defense & 

Educational Fund, Inc. 
700 14th St. NW 
Suite 600
Washington, DC 20005 
(202) 682-1300 
dharawa@naacpldf.org

Counsel for Amicus 
Curiae

* Counsel of Record

mailto:dharawa@naacpldf.org