Federal excessive fines clause versus state prosecutions

Criminal Procedure

By Timothy P. O’Neill

Timothy P. O’Neill was the Edward T. and Noble W. Lee Chair in Constitutional Law for 2014-15 at The John Marshall Law School in Chicago. Readers are invited to visit his web log and archives at jmls.edu/oneill.

Posted August 1, 2018 1:13 PM

Remember this old chestnut from law school? The professor describes a state prosecution with a plethora of problems surrounding the indictment. She then asks, “How many violations of the Fifth Amendment indictment clause can you identify?”The answer is simple: zero. That’s because the Fifth Amendment’s indictment clause applies only to federal prosecutions. The U.S. Supreme Court has never selectively incorporated that clause to the states through the 14th Amendment due process clause. See, e.g …

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