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August 28, 2023

"Can the Excessive Fines Clause Mitigate the LFO Crisis? An Assessment of the Caselaw"

The title of this post is the title of this new article available via SSRN authored by Michael M. O'Hear.  Here is its abstract:

The nation’s increasing use of fees, fines, forfeiture, and restitution has resulted in chronic debt burdens for millions of poor and working-class Americans.  These legal financial obligations (“LFOs”) likely entrench racial and socioeconomic divides and contribute to the breakdown of trust in the police and courts in disadvantaged communities.  One possible source of restraint on LFOs may be the Excessive Fines Clause of the Eighth Amendment. Largely ignored by courts and commentators for two centuries, the Clause has in recent years been the subject of a burgeoning volume of litigation and scholarship.  The U.S. Supreme Court has decided a handful of Excessive Fines Clause cases but has left a great many questions about the Clause’s reach unanswered.  Lower courts are now regularly grappling with these open questions, giving rise to an ever-growing body of caselaw.

This Article offers the first systematic survey and evaluation of the caselaw on what counts as a “fine” for Eighth Amendment purposes, particularly in relation to the major categories of LFOs.  Based on an assessment of nearly 200 cases, important interjurisdictional variations are apparent.  In a few states, expansive understandings of the Clause’s reach are becoming established, which may create a foundation for robust constitutional regulation of LFOs.  In most states, though, the precedent is either less favorable or simply still too undeveloped to see a clear trajectory.  The Article further identifies seven key, open doctrinal questions that cut across the LFO categories and will likely determine the extent to which the full range of LFOs will be subject to the Clause.  The Article outlines the main arguments that have been made or might be made on both sides of these questions, providing a sort of roadmap for activist lawyers of the points that must be won for the EFC to have maximum reach.

August 28, 2023 at 09:09 AM | Permalink


The amount of the LFOs in 99.9% of the cases doesn't come anywhere close to the amount that would trigger interest, much less a favorable judgment, under the Excessive Fines Clause. Not anywhere close. Read the governing opinions.

Of course we wouldn't have this problem at all if the smack pushers, carjackers and other criminals who incur these costs would either (1) refrain from crime so the costs never come up, or (2) if they have to live this way at everyone else's expense, pay their debts like the rest of us have to pay ours.

Posted by: Bill Otis | Aug 28, 2023 2:12:56 PM

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