"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.