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October 19, 2022

"Inflation and the Eighth Amendment"

The title of this post is the title of this new paper recently posted to SSRN and authored by Meara Maccabee, a student at The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by OSU's Drug Enforcement and Policy Center, and here is its abstract:

As inflation pushes the prices of goods higher and higher, the monetary thresholds that separate misdemeanor thefts from felony thefts deflate.  This paper argues that deflated felony thresholds provide courts a unique opportunity to wade into what is typically 'properly within the province of legislatures': sentence proportionality.  Because inflated thresholds are the result of a natural economic event, rather than legislative enactment, courts have more deference to find felony sentences disproportionate when the underlying theft would have constituted a misdemeanor absent inflation.

October 19, 2022 at 01:08 PM | Permalink


I would note that inflation has the opposite effect on fines. While reasonable people can disagree on what is an appropriate maximum fine for a particular offense, when the fine schedule is adopted, it has a certain purchasing power equivalent (dinner and a movie, taking the family to a ball game, a vacation, a new car, etc.) But over time what might have been the equivalent of a vacation is now the equivalent of taking a family to a ball game or dinner for two at a chain casual dining restaurant.

To use my state as an example, prior to our last revision, the maximum fine had stayed the same for almost 40 years. When originally enacted, the maximum fine for a felony was about the average price of a new car. By the time that we adopted the last batch of revisions, that maximum fine was only about one-fifth of the price of a new car. (And we only bumped up the maximum fine to about one-half of the price of a new car.)

Obviously, whether we are talking fine schedules or the thresholds used for various degrees of certain offenses, the legislature is drawing a bright line that it hopes to reflect a certain purchasing power. But, outside of the type of indexing that would create serious legal issues related to adequate notice, the only real solution is some automated legislative review of those values on a periodic basis. I am not sure courts are well-suited to determine when things have gotten too far out of whack.

Posted by: tmm | Oct 19, 2022 3:45:48 PM

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