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January 23, 2023

Justice Gorsuch dissents from denial of cert in "civil" tax case involving Excessive Fines challenge

The new SCOTUS order list released this morning appears to relist again (re-relist?) the set of acquitted conduct cases that I have been following closely (some background here and here).  In addition to that notable news, the order list also including an intriguing short dissent from the denial of cert in Toth v. US, a case involving a woman who failed to disclose a foreign bank account being "assessed a civil penalty of $2.1 million — half of the balance of Ms. Toth’s account — plus another $1 million in late fees and interest."   The First Circuit turned back an Excessive Fines challenge, and Justice Gorsuch explained why he found this troublesome (with some cites removed): 

It held that the Constitution’s protection against excessive fines did not apply to Ms. Toth’s case because the IRS’s assessment against her was “not tied to any criminal sanction” and served a “remedial” purpose.

This decision is difficult to reconcile with our precedents. We have recognized that the Excessive Fines Clause “traces its venerable lineage” to Magna Carta and the English Bill of Rights. Timbs v. Indiana, 586 U. S. ___, ___–___ (2019) (slip op., at 4–5).  We have held that “[p]rotection against excessive punitive economic sanctions” is “‘fundamental’” and “‘deeply rooted in this Nation’s history and tradition.’” Id., at ___ (slip op., at 7).  And all that would mean little if the government could evade constitutional scrutiny under the Clause’s terms by the simple expedient of fixing a “civil” label on the fines it imposes and declining to pursue any related “criminal” case.  Far from permitting that kind of maneuver, this Court has warned the Constitution guards against it.  See Austin v. United States, 509 U. S. 602, 610 (1993) (“[T]he question is not, as the United States would have it, whether [a monetary penalty] is civil or criminal, but rather whether it is punishment.”)....

Nor is a statutory penalty beneath constitutional notice because it serves a “remedial” purpose. Really, the notion of “nonpunitive penalties” is “a contradiction in terms.” United States v. Bajakajian, 524 U. S. 321, 346 (1998) (Kennedy, J., dissenting).  Just take this case.  The government did not calculate Ms. Toth’s penalty with reference to any losses or expenses it had incurred.  The government imposed its penalty to punish her and, in that way, deter others.  Even supposing, however, that Ms. Toth’s penalty bore both punitive and compensatory purposes, it would still merit constitutional review.  Under our cases a fine that serves even “in part to punish” is subject to analysis under the Excessive Fines Clause.  Austin, 509 U. S., at 610 (emphasis added).

Ms. Toth and her amici identify still more reasons to worry about the First Circuit’s decision.  They say it clashes with the approach many other courts have taken in similar cases.  Pet. for Cert. 18–25 (collecting cases).  They observe that it incentivizes governments to impose exorbitant civil penalties as a means of raising revenue. Id., at 25–30.  And they contend that it is difficult to square with the original understanding of the Eighth Amendment.  Brief for Professor Beth A. Colgan as Amicus Curiae on Pet. for Cert. 4–13.  For all these reasons, taking up this case would have been well worth our time.  As things stand, one can only hope that other lower courts will not repeat its mistakes.

January 23, 2023 at 09:54 AM | Permalink


Just awful. The one thing I hate--the idea that an injustice may not be worth the Court's time.

Posted by: federalist | Jan 23, 2023 10:14:57 AM

"And all that would mean little if the government could evade constitutional scrutiny under the Clause’s terms by the simple expedient of fixing a “civil” label on the fines it imposes and declining to pursue any related “criminal” case."

Same criticism could be leveled at the sex offender laws.

Posted by: federalist | Jan 23, 2023 10:17:01 AM

We'll see what he gets:


Posted by: federalist | Jan 23, 2023 10:37:57 AM

The arrest/prosecution you reference provides a potentially interesting setting for debating sentencing "fact." From a quick read of the press stories, it seems Riley Dowell was involved in damaging property, but that other protestors caused additional harms and injured an officer while Riley was being arrested. And yet it seem Riley was charged with assault along with other charges. As the facts/prosecution unfold, I will be interested to see what "conduct" becomes to the focal point for any convictions/sentencing.

Posted by: Doug B | Jan 23, 2023 11:02:41 AM


At long last, we agree on something. Your comment in respect to this Gorsuch dissent being applicable, or analogous, to sex offender registry schemes is spot on.

We all know that the RATIONALES stated by the Courts for these "constitutionally questionable" punishments imposed by the govt. (in respect to both the excessive fines and the sex offender registry schemes) are contrived and specious at best.

Both excessive fines and sex offender registry schemes are truly excessive and unjustified punishments imposed by a runaway government.

The U.S. Congress gaslights the country by claiming that excessive fines as well as sex offender registries are intended not as punishments at all, but rather merely civil/administrative procedures. And because they are catagorized as civil procedures, and not criminal, due process protections are no longer available

Unless and until the courts do their jobs, and intervene to hold the government in check, we ALL remain vulnerable to such unjustified and unreasonable excesses.

Those in our community, and across the country, who claim to be interested in justice and freedom should be just as outraged and concerned over such government abuses of power as they are about rising crime rates, mass shootings, violent street crimes, etc.

Posted by: SG | Jan 23, 2023 7:49:54 PM

Yeah, this is BS.

Posted by: TarlsQtr | Jan 23, 2023 10:24:04 PM

My view of the world is that there are rights, and those need to be zealously guarded and defended. Imposing onerous "civil" requirements on sex offenders that were not part of their original sentences violates the ex post facto clause, no matter what the heck the Supreme Court has said. In my view, a person who has served his sentence (i.e., a free person) cannot be required to do these things if they weren't part of the original sentence. This, to me, is obvious. I think that when you have balancing tests and judge-created rights, then these things tend to put all rights up for compromise. (Check out the Scalia dissent on the guy who didn't get the lawyer he was paying for.)

I think that the judge-made stuff has also infantilized our other institutions--it's not illegal until a judge says so. For example, where in the f'in world did cops get the idea that people can't record them from a distance? I could give so many examples.

Posted by: federalist | Jan 24, 2023 9:08:21 AM

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