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February 6, 2013

"Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause: Rediscovering the Eighth Amendment's 'Economic Survival' Norm"

The title of this post is the title of this interesting-looking new paper now up on SSRN authored by Nicholas McLean. Here is the abstract:

Most modern courts that have been called upon to interpret and apply the Excessive Fines Clause of the Eighth Amendment have concluded that a fine or forfeiture can be unconstitutionally excessive only if it is grossly disproportionate to its associated offense. However, in light of its text, history, and purpose, the Excessive Fines Clause is appropriately understood as encoding both a proportionality principle and a further limiting principle linking penalties to the personal circumstances and economic status of the offender.  This article seeks to address a significant and surprising gap in the extant literature by articulating and systematically developing an account of this second principle, known in traditional English law as salvo contenemento.  This principle is properly understood as signifying an “economic survival” or “livelihood protection” norm inherent in Eighth Amendment jurisprudence.

An emerging academic literature has concluded that the practice of assessing criminal financial penalties without regard to offenders’ personal economic circumstances is both widespread and extremely harmful.  Indeed, the burden of unpayable criminal justice debt can effectively destroy offenders’ capacity to reintegrate into society.  I submit that such practices are not just bad policy, but may be properly seen as constitutionally infirm: a constitutional fines and forfeitures jurisprudence that reflected the original meaning of the Excessive Fines Clause would be significantly more sensitive to the plight of the indigent criminal defendant, and more conducive to the rehabilitative goals of the criminal law.

February 6, 2013 at 11:52 AM | Permalink


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I love it McLean!

My prof., the NY Times, & multitudinous *others swear that Original Intent is undiscoverable or irrelevant
as it pertains to the "Cruel & Unusual" clause, but so dearly "conducive" and relevant
as it pertains to "Excessive Fines".

*e.g. this site -- Posted by: Michael J.Z. Mannheimer | May 11, 2012 10:32:34 PM

Posted by: Adamakis | Feb 6, 2013 1:16:29 PM


can everyone say "NO SHIT!"

Posted by: rodsmith | Feb 6, 2013 7:07:31 PM


It would be quite strange if someone who just finished a substantial work on the original understanding of the Cruel and Unusual Punishments Clause thought that original understanding (or, as you refer to it, original intent) were "undiscoverable or irrelevant." What I have said instead is that looking to the original understanding is crucial but that we need to recognize that there was no SINGLE original understanding in 1791 on a great many issues, though there was on some (e.g., the general acceptability of the death penalty, which was applied by every State in 1791). But just because we cannot pinpoint a specific, single original understanding on every issue does not mean we throw the doors open to federal judges to do as they please.

This is what I say in my article, which perhaps you should read: "A cautionary word is appropriate from the outset. Readers who are expecting definitive proof of what the Cruel and Unusual Punishments
Clause specifically meant in 1791 will be left disappointed. There is strong evidence that the Clause was understood at that time as imposing common-law-type constraints on Congress’s power to punish. Beyond that high level of generality, however, there was perhaps as much consensus in 1791 over the meaning of that provision (and many others) as there is today. Contemporaneous discussions of the Cruel and Unusual Punishments Clause were both sparse and vague. This Article attempts to discern a more specific understanding of the meaning of the Clause in 1791 by situating its language within the historical context, particularly the Anti-Federalist opposition to the Constitution that directly resulted in the adoption of the Bill of Rights. Therefore, the central claim of this Article relates not to the `original understanding' of the Clause, but to one within a range of possible `original understandings.' Yet, it is an understanding that history has overlooked and which is well worth rediscovering."

Posted by: Michael J.Z. Mannheimer | Feb 6, 2013 7:18:25 PM

With sex offenses, the 8th has been routinely ignored, particularly with Internet-related, non-contact offenses.

The first documented case was the forfeiture of a Cadillac in an Internet sting offense (http://articles.chicagotribune.com/2004-11-06/news/0411060238_1_sex-offender-probation-hudson-chat).

Here, a Tennessee law takes away vehicles for RSO's who visit parks (http://www.newschannel5.com/story/17233798/sex-offenders-could-lose-their-ride-under-proposed-bill)

A convicted sex offender loses house in plea bargain (http://jacksonville.com/news/metro/crime/2010-03-13/story/law_disorder_man_pleads_guilty_forfeits_house_in_child_porn_case)

These are a few of several such instances. What was supposed to be a law that dictated that property, which assests were derived from criminal activity (such as drugs), has now morphed into forfeiting LEGALLY-attained property of whose purchase had no bearing with the actual crime.

Posted by: Eric Knight | Feb 8, 2013 6:24:37 PM

I would consider those criminal theft under color of authortiy and have no problem what so ever killing anyone who was trying to take them. They would get a 20 sec warning to back off and leave or DIE!

Posted by: rodsmith | Feb 9, 2013 8:39:16 PM

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