Although the Eighth Amendment is not explicitly limited to criminal cases, its three subjects— bail, fines and punishments — all relate generally to criminal cases. Trump's fine was imposed in what was denominated a civil case. But it was not a traditional civil case between private parties, because no private parties were allegedly damaged by Trump. It was a case brought by the State of New York, which would receive the fine. Moreover, the fine was intended to deter the kind of conduct of which Trump was accused.

These factors make the fine seem closer to the usual attributes of a public criminal case than of a private civil case. A functional analysis of the fine in this case could well conclude that it is really criminal in nature and should be covered by the Eighth Amendment.