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April 6, 2014

"Reviving the Excessive Fines Clause"

The title of this post is the title of this notable new paper by Beth Colgan now available via SSRN. Here is the abstract:

Millions of American adults and children struggle with debt stemming from economic sanctions issued by the criminal and juvenile courts.  For those unable to pay, the consequences — including incarceration, exclusion from public benefits, and persistent poverty — can be draconian and perpetual.  The Supreme Court has nevertheless concluded that many of these concerns lie outside the scope of the Eighth Amendment’s Excessive Fines Clause. In interpreting the Clause, the Court relied upon a limited set of historical sources to restrict “fines” to sanctions that are punitive in nature and paid exclusively to the government, and to define “excessive” as referring to — either exclusively or primarily — the proportionality between the crime’s gravity and the amount of the fine.

This Article takes the Court at its word by assuming history is constitutionally relevant, but it challenges the Court’s limited use of history by providing the first detailed analysis of colonial and early American statutory and court records regarding fines.  This robust historical analysis belies the Court’s use of history to announce historical “truths” to limit the scope of the Clause, by showing significant evidence that contradicts those limitations.

The Article uses the historical record to identify questions regarding the Clause’s meaning, to assess the quality of the historical evidence suggesting an answer to such questions, and then to consider that evidence — according to its value — within a debate that incorporates contemporary understandings of just punishment.  Under the resulting interpretation, the historical evidence articulated in this Article would support an understanding of a “fine" as a deprivation of anything of economic value in response to a public offense.  “Excessive,” in turn, would be assessed through a broad understanding of proportionality that takes account of both offense and offender characteristics, as well as the effect of the fine on the individual.  The proposed interpretation more faithfully reflects the history and its limitations, and broadens the Clause’s scope to provide greater individual protections.

April 6, 2014 at 10:53 AM | Permalink


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The USSC has did little in respect to the Excessive Fines Clause, so much that it is somewhat debatable if it even was incorporated (Prof. Volokh once flagged this issue at his blog). Justice Thomas, interestingly enough, wrote one of the few recent cases in this area, a 1990s 5-4 ruling that split him from Scalia striking down a fine as "excessive."

As with non-capital "punishments," the USSC overall is loathe to give much judicial teeth here as seen by the "three time loser" rulings. Solem v. Helm itself was 5-4. "Fines" (with a bit of notice in recent years to punitive damages) even more so. In effect, except in extreme cases, it is left in the federal courts as something of a political question. This very well might be problematic to some degree.

Still, the BOR is not merely for the courts. As noted when originally introduced, they are if anything more importantly overall reminders for the people overall, specifically legislatures. So, the discussion in the article and elsewhere also can be instructive in this sense as well. People here repeatedly reject arguments made in court as weak. What courts should decide is an important matter for this blog, obviously. But, the arguments and facts made here go beyond that to policy. I think at times that is forgotten.

Posted by: Joe | Apr 6, 2014 3:07:34 PM

so in other words we have another area where the USSC has pulled it's creative interpretation out of it's ass.

Posted by: rodsmith | Apr 6, 2014 3:20:03 PM

What do you know. If the author is right, it appears Scalia and other self-proclaimed "originalists" on the court are indeed, as Rod suggests, just pulling much of this stuff out of their backsides.

Posted by: John K | Apr 7, 2014 8:37:51 AM

LOL nice john k but your going the wrong way. It's the massive fines and civil forfeitures they use now that they are pulling out of their asses.

during the founders time fines were not lifetime crippling just as 5 min's of stupidity would not bring you 20 diff charges as now.

Posted by: rodsmith | Apr 7, 2014 2:15:13 PM

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