August 20, 2014
Pennsylvania Supreme Court declares $75K mandatory fine constitutionally excessive for $200 theft
Thanks to How Appealing, I just saw this fascinating new unanimous ruling by the Supreme Court of Pennsylvania in Pennsylvania v. Eisenberg, No. (Pa. Aug. 19, 2014) (available here). Here is how the lengthy opinion gets started:
The controlling issue in this unusual direct appeal from a conviction arising under the Gaming Act is whether imposition of a mandatory minimum fine of $75,000 for a conviction of a first-degree misdemeanor theft of $200 violates the prohibition of Article I, Section 13 of the Pennsylvania Constitution against excessive fines. For the reasons set forth below, we conclude that, under the circumstances, the fine imposed indeed is unconstitutionally excessive. Accordingly, we vacate that portion of the judgment of sentence involving the mandatory fine and we remand to the trial court to determine, in its discretion, the appropriate fine to be imposed commensurate with appellant’s offense.
The full ruling is worth a full read by anyone interested in constitutional review of sentences, especially because the ruling turns in part on the fact that the punishment here involved a statutory mandatory term. Here is an excerpt from the heart of the opinion's analysis:
In our view, the fine here, when measured against the conduct triggering the punishment, and the lack of discretion afforded the trial court, is constitutionally excessive. Simply put, appellant, who had no prior record, stole $200 from his employer, which happened to be a casino. There was no violence involved; there was apparently no grand scheme involved to defraud either the casino or its patrons. Employee thefts are unfortunately common; as noted, appellant’s conduct, if charged under the Crimes Code, exposed him to a maximum possible fine of $10,000. Instead, because appellant’s theft occurred at a casino, the trial court had no discretion, under the Gaming Act, but to impose a minimum fine of $75,000 – an amount that was 375 times the amount of the theft....
The Commonwealth argues that the mandatory fine is not constitutionally excessive because a fine serves both to punish and to deter, and in the Legislature’s judgment, the amount here was necessary to accomplish both in light of the public perception of the gaming industry and the significant amount of money exchanged in casinos. We acknowledge that all fines serve the twin purposes of punishment and deterrence. At the same time, however, we note that the extension of the mandatory fine to this offense was adopted in 2010, and it was accompanied by no separate legislative statement of purpose. The only statement of purpose is that attending the initial Gaming Act legislation, i.e., the general statement of purpose to protect the public through regulation of the gaming industry. The Commonwealth cites nothing in the later legislation, its legislative history, or logic to explain the sheer amount of this fine for this particular added offense, and the reason for making the offense subject to a mandatory fine....
[T]he Commonwealth’s reliance on cases in which courts have upheld substantial criminal administrative penalties in light of the Legislature’s dual objectives of punishment and deterrence, is misplaced. In those cases, the fines were tailored, scaled, and in the strictest sense, calculated to their offenses. It is undoubtedly within the Legislature’s discretion to categorize theft from a casino differently than other theft crimes in Pennsylvania, and, in turn, to fashion different penalties. However, the prohibition against excessive fines under Article I, Section 13 requires that the Legislature not lose sight of the fact that fines must be reasonably proportionate to the crimes which occasion them. We hold that, as imposed here, the mandatory fine clearly, palpably and plainly violates the Pennsylvania Constitution.
August 20, 2014 at 11:24 AM | Permalink
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So now let us take this case and make one tiny substitution. We shall substitute "money stolen from a casino" with "psychological harm done to a child as a result of being photographed naked."
What say you now Doug? You still think that $1.5 million "restitution" is still does not violate the Excessive Fines clause?
Posted by: Daniel | Aug 20, 2014 1:38:01 PM
"to punish and to deter"
Interesting phrasing. I would take "punishment" to generally include "deterrence."
As to the first comment, the opinion seems to be saying that given the general punishment for theft, the fine here is grossly disproportionate.
It compares apples and oranges to compare that to the psychological harm to children as a result to being involved in child pornography. What is "tiny" about that substitution? It's a rather different crime. Why not insert "killing the child"? Seems the only thing tiny is the words being replaced. Theft and child pornography being so much different.
Posted by: Joe | Aug 20, 2014 4:18:49 PM
Daniel: The point of a restitution penalty is to make the victim whole and the victim gets the monies paid. The point of a fine is to punish the offender, and the state gets paid. Arguably, restitution can never be "excessive" if the amount is definitionally limited to harms caused, at least in part, by the offender. If CP punishments included a $1.5 million fine for downloading a few picture with no link to harms caused, I would agree that the fine is excessive. But what really seems to trouble you is the notion that a CP victim could suffer $1.5 million in damages from downloading.
In this PA case, the victim can (and I assume was) made whole by a $200 restitution award, and the $75K fine was an additional (excessive) punishment. I would be the first to say the same rule should apply if/when a statute required a CP downloader to pay $1.5 million in restitution and than another $150 million to the state.
Notably, some tax cheats have to pay back taxes evaded plus interest plus a huge penalty. For the Beanie Baby billionaire, he had to pay restitution PLUS an extra $50+ million. I trust you do not think, Daniel, that this multi-million dollar fina is excessive. (Notably, the feds have appealed because the guy did not get jail time on top of all these financial hits.)
Posted by: Doug B. | Aug 21, 2014 9:12:36 AM
In theory I agree with you regarding the distinction between fines and restitution. However, as you know SCOTUS has blurred this area considerably and its debatable whether the distinction has any practical force. You're actually wrong when you claim what concerns me is the total amount of money damages as I believe that in some truly egregious cases such a large amount might be warranted. However, I suspect that my idea of what is truly egregious is vastly different than the average judge. In my state the government pay rate for therapy is $60 an hour--that is what Medicaid etc reimburses. At $60 an hour $1.5 million in restitution represents 25,000 hours of therapy, which comes out to roughly one hour of therapy every day for the next 68 years. Now, I have read some truly sick cases where such an award might be warranted but we are looking at the worst of the worst.
My own view is that justices have shown themselves to be extraordinarily ill equipped to police such restitution because experience has shown that they are guided more by their sympathies rather than any rational calculation. Indeed, you own data on the widely varying punishments giving to those who view child pornography bears this out. SO my ultimate concern is that when judges are guided by their sympathies rather than rationality "restitution" simply becomes a "fine" through the backdoor, an attempt to evade the 8A.
Posted by: Daniel | Aug 21, 2014 12:32:08 PM
I wanted to add one further point. Joe complains that child pornography and robbery are not identical crimes. I think there is more similarity there than he admits to but regardless to the extant they are different that difference tips in favor of us being especially cautious when it comes to psychological harms. One neat thing about money is that it makes fine and restitution calculations easy: it's simple math. People may not agree on what the precise meaning of "excessive" but the terms of the debate are clear: 10X the amount, 100X, 300X etc. With psychological harms it is difficult--some say impossible--to sum up "excessive" in neat numerical terms. What is 10X "sadness"? What is 100x "the blues"? When does therapy become "excessive"? These aren't easy questions to answer and when these hard questions arise it becomes much easier to simply fall back on primal sympathy and not do the difficult work the Constitution requires.
Posted by: Daniel | Aug 21, 2014 12:42:57 PM
Your comments, Daniel, give me a better sense of your concerns, but have you looked at the accounting done by CP victims when seeking millions in restitution? The monies go to a lot more than therapy sessions (including other out-of-pocket expenses connected to the crime), and it seems that you big concern in what CP victims are claiming are economic harms caused by the CP offender.
Rather than urge constitutional rulings here, Daniel, it sounds as through you really just want judges to take a closer look at how much in harm a CP victim claims and how much a CP offender should have to pay. In a sense, this is what SCOTUS told judges to do with its Paroline ruling without giving much attention to the Excessive Fines clause.
Posted by: Doug B. | Aug 21, 2014 4:17:53 PM
"more similarity there than he admits more similarity there than he admits"
A bald statement that might warrant some explanation. Child pornography can symbolically be seen as a form of "robbery" of something intangible (the terms can be debated) but no I still don't readily see much of a "tiny substitution" between the two things.
Prof. Berman covers more ground, usefully, but only underlines for me that question raises a largely different issue, except for the broad sense that "excessive" penalties (of all sorts) is a matter of constitutional concern.
Daniel can raise concerns about psychological harms and that we cannot just fall back to "sympathy." That's fine. I still think we are dealing with significantly different things here. It is not a "tiny substitution" except in a shallow sense of number of words. I hold to my comments there.
Posted by: Joe | Aug 22, 2014 1:06:51 AM
A small potatoes point about restitution: I doubt there was an award here; I don't think effective restitution was possible.
The defendant was a poker dealer who was skimming pots, a dollar or two at a time. The victim was not his employer, the house; rather the victims were the players who won those skimmed pots. It's not practicable to find those players and restore their winnings to them, a few dollars apiece.
If there was a restitution award to the casino, it was a windfall--the casino did not lose that money.
Posted by: Def. Atty | Aug 22, 2014 1:14:04 PM
Doug writes, "Rather than urge constitutional rulings here, Daniel, "
That's my response. The problem is that under our current system of justice there is no way to deal with issues without ultimately turning them into Constitutional claims. You're correct if you surmise I think that's a bad thing. But it is the reality everyone has to deal with. Take the case linked above. There was clear administrative error on the part of the Judiciary though no fault of the defendant. But the only way he has any hope of continued freedom is to make a Federal and Constitutional case out of it. I admit that what happened in that case in Colorado is a difficult resolve as to what should happen now--that isn't my point. My point is that his only hope is to make a Constitutional claim and I think that is the sign of a busted system.
Posted by: Daniel | Aug 22, 2014 2:31:29 PM