Jouppi v. Alaska, Excessive Fines, and Natural Justice: Who Decides?

Share

On July 20, 2026, the Supreme Court granted certiorari in Jouppi v. Alaska, which poses the question “whether, in determining whether a fine contravenes the Excessive Fines Clause, courts may consider the gravity of the underlying offense purely in the abstract or should consider the gravity of the specific defendant’s wrongdoing.” The petitioner was convicted of transporting alcohol into a town where it was prohibited, and, as relevant here, forfeited his $95,000 plane as a result. How much beer he was convicted for turns out to be important, as you will see below.

This is a fascinating case because it raises important questions about the relationship between natural justice, the judiciary and the legislature, and the perennial question, “Who decides?” I address some of those issues, and more, below, in what is an unusually lengthy post for me, including making a recommendation for how it seems the Supreme Court should resolve this case.

Factual and Procedural Background

Jouppi has some complicated procedural history and factual disputes, but I will try to paint things as fairly as I can based on the Supreme Court of Alaska’s opinion, which is the relevant judgment under review at the U.S. Supreme Court and presumably the sum total of the record on which the latter can draw for its decision.

Kenneth Jouppi ran an air taxi company in Alaska (travel by small plane is common in Alaska given just how remote some of its locations are). In the first set of proceedings, the evidence at trial showed that Jouppi loaded 72 beers into his airplane for a customer who had chartered a flight to a small village called Beaver. Beaver is a dry town (or “dry village”). That is, consistent with state laws that permit municipalities to regulate and even ban alcohol, Beaver prohibits the importation, sale, and even possession of alcoholic beverages within the village. Jouppi claimed that all the customer’s belongings were in closed boxes and that he never opened them. Some testimony indicated, however, that “at least” one six-pack of beer was visible in a see-through grocery bag, while a state trooper testified that he observed Jouppi opening and closing the boxes as they were loaded onto the airplane, “opin[ing] that Jouppi had to be turning a blind eye to the boxes’ contents” at best. The verdict was apparently a general one, as the jury made no findings about the specific volume of alcohol of which Jouppi was aware. But the jury ultimately convicted Jouppi of “knowingly” sending, transporting, or bringing “less than 12 gallons of malt beverage” into the village of Beaver. So it clearly did not accept all of Jouppi’s testimony and believed he knowingly imported some legally sufficient amount.

Jouppi was sentenced to 180 days in jail, 177 days of which were suspended; a $3,000 fine, $1,500 of which was suspended, and three years probation. His LLC air taxi company was fined $10,000 with $8,500 suspended, and received three years probation. Jouppi and his company were also tagged with various conditions of probation that included not transporting alcohol into any dry village. Most significantly, the court also (reluctantly) ordered that Jouppi and his company forfeit their interests in the $95,000 airplane used. The trial court later reversed its forfeiture on reconsideration, however, on the grounds that the forfeiture statute did not apply because the alcohol was seized before the plane ever left for Beaver. The State appealed and the intermediate appellate court reversed, holding that the statutory requirements were met under the facts of the case and the statute mandated forfeiture, remanding the case for further proceedings.

On remand, Jouppi moved for a declaration that forfeiture was unconstitutional, in violation of the Excessive Fines Clause of the Eighth Amendment. After an evidentiary hearing, the trial court agreed and removed the forfeiture order. The State appealed again, and the court of appeals again vacated and remanded, this time holding that the trial court had erred in its application of the applicable federal standard enunciated in United States v. Bajakajian, 524 U.S. 321 (1998), which ultimately asks, pursuant to a list of factors, whether a forfeiture is “grossly disproportional to the gravity of the offense.” It ordered further fact-finding on remand. But this time Jouppi petitioned the Alaska Supreme Court and the State cross-petitioned, getting the case up to the State’s high court, which upheld the forfeiture of the airplane. We will digress for a moment before getting to the Alaska Supreme Court’s analysis.

The Bajakajian Test

The relevant test for excessive fines comes from Bajakajian. This was the first U.S. Supreme Court case to articulate “a standard for determining whether a punitive forfeiture is constitutionally excessive.” Notably, the opinion was written by Justice Clarence Thomas, joined by the Court’s then liberal wing—Stevens, Souter, Ginsburg, and Breyer. Justice Kennedy, Chief Justice Rehnquist, and Justices O’Connor and Scalia dissented. Interestingly, Justice Thomas recognized that “[t]he constitutional question that we address … is just how proportional to a criminal offense a fine must be, and the text of the Excessive Fines Clause does not answer it. Nor does its history.” So, for an originalist like Justice Thomas, that is an odd position to be in. Justice Thomas formally drew on the Court’s Cruel and Unusual Punishments Clause case law for guidance, ultimately landing on the following standard:

[F]irst … judgments about the appropriate punishment for an offense belong in the first instance to the legislature…. [S]econd … any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise. Both of these principles counsel against requiring strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense, and we therefore adopt the standard of gross proportionality articulated in our Cruel and Unusual Punishments Clause precedents. [In applying this standard de novo, a reviewing court] must compare the amount of the forfeiture to the gravity of the defendant’s offense. If the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense, it is unconstitutional.

In holding the fine at issue in Bajakajian unconstitutional, the majority emphasized that the crime there “was solely a reporting offense,” the criminal violation was “unrelated to any other illegal activities,” the “money” he failed to report was “the proceeds of legal activity and was to be used to repay a lawful debt,” the defendant did “not fit into the class of persons for whom the statute was principally designed,” and the maximum sentence available was a $5,000 fine and up to six months in prison, confirming “a minimal level of culpability.” Further, the majority reasoned that the “harm that respondent caused was also minimal,” affecting only “one party” (“the Government” and only “in a relatively minor way”) with no “fraud” at issue and “no loss to the public fisc.” The only harm inflicted was that the Government was deprived of the knowledge that several hundred thousands dollars “had left the country” because the defendant failed to report it.

As discussed further below, I think this test is deeply classical (or at least can and should be understood that way to avoid its pitfalls) and rooted in natural law principles. (One is left wondering if these were actual influences on Justice Thomas, who imported them through controversial Cruel and Unusual Punishments case law rather than by a direct reference to natural law, in order to get a majority on his side.) That said, the test as given does not explicitly answer some important questions, including the question presented in Jouppi: is the “gravity” of the defendant’s offense considered abstractly as to the nature of the crime in se, or does it also or otherwise account for the particular circumstances of the particular defendant’s crime of conviction?

Back to Jouppi

Applying the above framework, the Alaska Supreme Court held that the airplane forfeiture did not violate the Excessive Fines Clause because “it is not grossly disproportional to the gravity of the harm caused by Jouppi’s alcohol importation offense”:

1. The nature and extent of the defendant’s crime and its relation to other criminal activity. While Jouppi was convicted of “only one instance” of importing alcohol “unconnected to other criminal activity,” the court considered “the nature and extent of the crime” to be “more serious” than the mere reporting crime in Bajakajian because: “He knowingly transported a six-pack of alcohol in plain view while acting in his professional capacity as the operator of an air taxi company and the pilot of the airplane. This factor suggests that the forfeiture of his airplane is not grossly disproportional.” Admittedly, this is some underwhelming analysis, and seems a bit more like say-so. I can understand some reasons that could further support this view (such as the fact that Jouppi is licensed by the State to run his business and that air-importation of alcohol is specifically targeted by law puts him in fundamentally more serious position because his private enterprise, private as it is, is affected with a public interest by its nature, thus making his harm to the community for significant than the failure of an individual to report the transfer of money who is not otherwise involved in a business so affected). But the Alaska Supreme Court didn’t say any of that, leaving to inference exactly why Jouppi’s acting in a professional capacity makes this so serious.

2. Whether the defendant falls within the class of persons targeted by the statute. Here, the court had no trouble concluding that the facts at trial established that Jouppi was “clearly within the class of persons targeted by the statute.” The law and the legislative history made clear that it was meant to deal with importation via airplane (among other vehicles) into rural areas of Alaska that prohibited alcohol importation. Jouppi knowingly set out to import at least six beers, being “willfully blind” at best, and in fact there were 72 beers on board. And the statute made aircraft related offenses automatically subject to forfeiture, regardless of whether the underlying crime was a felony or misdemeanor (singling out airplanes in particular). The court went on to say that no remand was necessary on issues like whether Jouppi was criminally culpable for all 72 beers or just the six-pack, because “the legislature determined that the harm from even a six-pack of beer knowingly imported into a dry village is severe enough to warrant forfeiture of an aircraft.”

3. Consideration of other penalties that might be imposed on the defendant in comparison to the value of the forfeiture. Here, the Alaska Supreme Court was contented that, unlike Bajakajian where the forfeiture sought was $357,144 (over “70 times the maximum fine of $5,000), “the value of Jouppi’s airplane is only 9.5 times the maximum fine that could have been imposed.” This admittedly feels like a bit of arbitrariness (reminiscent in some ways of Justice Kennedy’s business-due-process jurisprudence in State Farm and BMW v. Gore).

4. The nature and extent of the harm caused by the defendant’s offense. The court viewed the nature and extent of the harm to be much more severe than in Bajakajian. Specifically, the court homed in on the attendant social problems of crime, alcoholism, fetal alcohol disorder, death, and substantial public health and administrative costs on the the justice system that alcohol use occasioned, and which Beaver did not want to exist. Thus, according to the court, “[w]ithin this context, it is clear that the illegal importation of even a six-pack of beer causes grave societal harm.”

What to Do With Jouppi at the Supreme Court?

I view this case as more than kind of a mess on multiple levels, and I think it unfortunate the Court granted certiorari in this particular case. The Court (especially libertarian-leaning Justices) could well be tempted to conclude that of course forfeiting a plane for a mere six-pack of beer is “grossly disproportional.” And there also seems a distinct risk that the Court will do so in a way that comes off as, “Well we just think 9.5 times the value of the maximum criminal penalty is just too much, because reasons.” Yet the messy procedural history and the jury’s general verdict and the Alaska Supreme Court’s (boneheaded) decision not to remand for a further hearing on the volume of alcohol of which Mr. Jouppi was aware and the fact that there were not just six beers (as some pundits now trumpeting the case on social media are claiming) but 72 beers, make it unseemly to say the least that the Court might go ahead and strike down this forfeiture law. It all seems very artificial. I would not have suggested granting this case, but alas, here we are.

I want to take the time to lay out how I think the Court could make things better, not ideal necessarily, using both classical legal principles and existing precedents to resolve this case in the least worst way possible.

To begin with, the “proportionality” stuff in the Court’s test could use some actual legal principles behind it. The way these kinds of tests can tend to work are as a free-floating judgment about what the judge thinks the fine is enough or too much (that seems like a near invitation to strike things down). The “originalism” part of the parties’ briefing to date is meager (unsurprising given that it is still cert-stage, not merits stage, and that Thomas recognized in Bajakajian that text and history do not do much here). I think this could be improved upon by a recognition that providentially Bajakajian articulates important classical principles of Western thought about the nature of law and punishment, indeed, foundational principles of our law.

As St. Thomas Aquinas teaches, “[p]unishment is proportionate to sin in point of severity, both in Divine and in human judgments.” ST, I-II Q.87, art. 3. This is a direct reflection of the fact that in dealing with sin and punishment we are dealing with the virtue of justice, iustitia. “[T]he law is the art of goodness and fairness. Of that art, we [jurists] are deservedly called the priests. For we cultivate the virtue of justice and claim awareness of what is good and fair, discriminating between fair and unfair, distinguishing lawful from unlawful, aiming to make men good not only through fear of penalties, but also indeed under allurement of rewards.” Digest 1.1.1. “Iustitia est constans et perpetua voluntas ius suum cuique tribuens,” the unswerving and perpetual determination to render to each his due. Institutes 1.1. A punishment that is undue, that is, unmoored rationally from the nature of the wrongdoing, is unjust, and when that punishment is inscribed in “law” it could run the risk of becoming not law, but mere violence, failing to achieve the proper ends of law. See ST, I-II, Q. 93, art. 3; Q. 95, art. 2.; Q. 96, art. 4. Proportionality is an inherent feature of the concept of iustitia.

As applied to the Bajakajian test, however, this does not cash out to a free-floating principle of proportionality and justice for the Supreme Court or lower courts to examine and apply at will. Bajakajian is better read as not relying on an abstract measuring of incommensurables (as Justice Scalia so famously criticized “proportionality” tests).1 Nor is the pertinent question simply, “Is this punishment just?” Rather, as St. Thomas teaches elsewhere, “[s]ome things are … derived from the general principles of the natural law, by way of conclusions; e.g. that ‘one must not kill’ may be derived as a conclusion from the principle that ‘one should do harm to no man’: while some are derived therefrom by way of determination; e.g. the law of nature has it that the evil-doer should be punished; but that he be punished in this or that way, is a determination of the law of nature.” ST, II-II, Q.95, art. 2. In other words, certain things are wrong in themselves, and we can know they are wrong in themselves (and thus that they violate natural law, or in other words are inherently unjust) as conclusions that following directly from what are typically referred to as natural law’s first principle and primary precepts (to do good, not evil, and several injunctions that follow from reflection on the nature of man such as procreation, self-preservation, education, knowledge, and so forth). As St. Thomas illustrates here, the injunction against murder is one such command of natural law, and we know it as a conclusion derived from the principle of not doing harm to others.

However, the natural law’s dictates become less clear to us the further those dictates depend, not on conclusions from the first principles of natural law, but on what are called its “secondary precepts.” Of these, there are so many we cannot name them all, as they amount to everything natural law would require in every existing contingent circumstance of life, given the particular facts of that particular situation. Within that realm natural law very much still has a say so, but the application of its principles occurs not by direct conclusions, but rather by way of determinatio. In such matters, human lawmakers can be mistaken, flawed, unclear, or in reasonable disagreement. So long as their determinatio, however, is “an ordinance of reason for the common good, made by him who has care of the community, and promulgated,” ST, I-II, Q.90, art. 4, that determinatio amounts to “law,” and is binding in conscience on everyone within the particular community. Yet there can be broad-based rational disagreement within the realm of determinatio, despite it commanding your allegiance. The standard example in natural law circles of explaining this are laws for which side of the road you drive on. The natural law indeed mandates we protect innocent human life, including motorists, and clearly mandates we do something to order the use of automobiles given their threat to innocent human life and practical utility. Yet the natural law does not really tell us whether the left hand side or right hand side of the road is correct. Either could be correct. And the choice of the sovereign in either case binds us to obey, because the determination was made via law, a rational ordinance for the common good, promulgated by the sovereign.

Aquinas’s lead illustration noted above has obvious application for the discussion of excessive fines. That the criminal merits punishment is a direct conclusion of natural law. He who does wrong warrants punishment. That is a sure and incontrovertible statement as far as is goes. But how he is punished is not something that follows a fortiori, at least that us mere mortals can discern. Therefore, questions of this latter type are subject to determinatio via human law. And the body tasked with promulgating such rational ordinances for the common good of Alaska is the legislature of the State. See Alaska Const., Art. II, sec. 1. The statutory punishments for Mr. Jouppi’s crime, including, forfeiture, clearly fall into the latter category as a general matter. That is, the primary determiner of what natural law’s requirements are in terms of a just punishment fall upon the state legislature and are ordinarily not a matter of which the Supreme Court should take any cognizance. The question of “Who decides?” is readily answered in all or nearly all cases. To declare that a state legislature’s imposition of a particular punishment was contrary to natural law and thus void, it would have to be an extreme deviation from reason and morality, at minimum nudging us closer to contradiction with natural law’s primary precepts, rather than a question of how to sort out the remote conclusions of the secondary precepts by determinatio.

In my view, the Bajakajian test maps onto the above framework rather well even if imperfectly. Bajakajian can reasonably be understood as reading the Excessive Fines Clause along classical natural law and juristic lines. “[J]udgments about the appropriate punishment for an offense belong in the first instance to the legislature.” While penned by Justice Thomas, it could have as easily been penned by St. Thomas. Moreover, given that we are talking about the due punishment, we are in the general realm of the remote conclusions of the secondary precepts of natural law, and thus, “any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise,” as Justice Thomas also properly stated. It is only when a forfeiture is “grossly disproportional” to the offense that it would be constitutionally “excessive,” which is to say (on what I think is the best-grounded reading of Bajakajian) contrary to natural law’s primary precepts. And such instances should be and are exceedingly rare. Thus the “gross disproportionality” issue serves as an extreme backstop, and the Court really should emphasize that based on classical principles that help ground the proportionality test and its relation to legislative determinatio of just punishment in the case of fines.2

Jouppi presents some serious difficulties on the ultimate merits question. On the one hand, if, under Bajakajian, we consider the “nature” of the offense, it is pretty clear that it is not as morally serious, on classical principles, as the Alaska Supreme Court makes it out to be (which is not, emphatically, to say that it is not morally serious!) Why did it matter that in Bajakajian it was a mere “reporting” offense, i.e., he failed to report the transfer of otherwise lawful money? Well, there is a longstanding recognition in law between two categories of offenses: an act malum in se (evil in itself) and an act mala prohibita (evil because prohibited). See District of Columbia v. Colts, 282 U.S. 63 (1930). Alcohol importation is clearly in the latter category, and is not an inherent evil, but rather a matter of prudential prohibition aimed at serious second-order side effects in rural Alaska. Again, this does not mean it is moral for Mr. Jouppi to import alcohol. To the contrary, the law prohibiting his conduct is clearly “law” in the proper sense and binds him in conscience, which he appears to have knowingly violated. All I mean to say here is that relative to something that would be a per se evil, it is at least relevant in the calculus to consider whether we are dealing with, on the one hand, an inherent evil by the defendant (such as murder) or one that is only wrong by affirmative human law prohibition. And on that score, importing alcohol surely is more akin to the failure-to-report money issue in Bajakajian than the lower court was willing to admit. Moreover, the actual punishment Jouppi received (apart from the forfeiture) reflects an extensive amount of clemency: 3 days in jail, a couple thousand in fines, and probation. Hardly the stuff of inherent moral evils. And I have to admit that if, as the Alaska Supreme Court has authoritatively held, that the statute mandates forfeiture automatically for any alcohol importation, one is driven into some ridiculous scenarios. One six pack? How about an airplane sized 1.5 ounce bottle of Jack Daniels? How about a single drop of alcohol? On that account, the ancient maxim de minimis non curat lex would have been wise to consider on the question of actual criminal liability, let alone forfeiture of very valuable property relative to the crime in question.

On the other hand, the record, murky as it is, possibly suggests we aren’t really dealing with hard case at all, because—contrary to what a lot of pundits are reporting out there on the internet—there was not just a “six-pack” on board. There were according to the Alaska Supreme Court, 72 beers, multiple gallons (into a small village of less than 100 people). Does anyone really think that it is “grossly disproportionate” (in the sense I’ve set forth here) to forfeit the vehicle in which you ran a substantial amount of illegal alcohol? It is enough for 3/4 of the village to drink, or for one or two persons to drink in an incredibly irresponsible manner (leading directly to the kinds of things Beaver was worried about in the first place). Moreover, legislative judgments on this matter are entitled to exceptional weight, and a local government’s prudential judgments, in the name of public health, safety, welfare, and morals, including with respect to alcohol, are part of a long and traditional recognition of an irreducible and necessary power of any political community. See Stone v. Mississippi, 101 U.S. 814 (1880). They fall within the natural law maxim, “salus populi suprema lex.” Beer Company v. Massachusetts, 97 U.S. 25 (1878) (affirming inherent power of state legislatures to regulate and even ban alcohol in the name of public health). Alaska takes the importation of alcohol into a local community that has lawfully forbidden it very seriously because, in the legislature’s considered judgment, alcohol use in rural communities in Alaska has been deeply harmful and costly to those communities. I myself am even a tad reticent to conclude that it violates the principle of justice for the state to require forfeiture for the six-pack alone, but it is a thorny question fitting in a neatly grey zone (And, again, I think there could and should have been other recourse under state law to avoid this scenario and perhaps not interpret the statute as mandating the forfeiture in these circumstances in order to avoid these difficulties, but here we are).

So what should the Supreme Court do? In my view, they should, in addition to clarifying and bolstering the relevant test with classical principles like those above, which are much more coherent and firmly rooted than the free-wheeling “excessiveness” or “proportionality” that one might interpret into the case law, there is a potential solution to get the Supreme Court out of this mess, and it lies in the question presented itself.

All the Court needs to do here is hold that, insofar as a defendant launches an “as-applied” challenge to a forfeiture under the Excessive Fines Clause, without deciding whether that is what Mr. Jouppi has done here, yes, the reviewing court needs to take account of both the abstract “nature” of the crime (that is its inherent moral blameworthiness versus whether it is a mere crime of prohibition), and the particular relevant facts of the defendant’s commission of that crime. If the inquiry here is to determine whether a legislature’s determinatio of just punishment was so wrong as to take us wholly out of the realm of such determinations and into the realm of violations of clear first order principles of justice (a high bar when it comes to a chosen punishment for crime), that bar cannot be met absent knowledge of the particular facts of a defendant’s conviction. After all, Bajakajian itself took extensive account of what the defendant was actually convicted of and its attendant circumstances, not merely the inherent nature of the crime of conviction. The Court should then stop there and remand the case.

It seems like Mr. Jouppi has implicitly articulated an as-applied challenge, but his briefs both in the Supreme Court to date and in the Alaska Supreme Court are surprisingly not as explicit as one would expect. So the state courts can sort that out on remand. Similarly, it sure seems like there are multiple ways of authoritatively interpreting the jury verdict as rejecting Mr. Jouppi’s testimony and finding that he was at minimum willfully blind to the probable existence of much more alcohol than he was “actually” aware of (Alaska lays out several plausible interpretations in its briefing). If the jury found that he “knew” as a legal matter about all the alcohol, then this case seems to me to come nowhere near the high bar of “gross disproportionality” required. Running “three cases of beer” (Pet.9) into a village of 100 people, I’m sorry, means you forfeit your plane or car or whatever else you illegally ran the alcohol in, and there is nothing unjust about it. But leaving the application of a classically bolstered test (which clarifies the immense deference to the legislative judgments, and high bar for showing an indisputable conflict with natural justice on an as-applied challenge) to the lower courts seems a much more advisable path for the Court to take given the state of the record.

Share