The Burdens of the Excessive Fines Clause

William & Mary Law Review William & Mary Law Review

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The Burdens of the Excessive Fines Clause The Burdens of the Excessive Fines Clause

Beth A. Colgan

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The Burdens of the Excessive Fines Clause

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THE BURDENS OF THE EXCESSIVE FINES CLAUSE

BETH A. COLGAN

ABSTRACT

A key component is missing from the Eighth Amendment’s Ex-

cessive Fines Clause doctrine: Who has the burden of proof? This

question—which has been essentially ignored by both federal and

state courts—is not just a second-order problem. Rather, the

assignment of burdens of proof is essential to the Clause’s enforce-

ment, making it harder—or easier—for the government to abuse the

revenue-generating capacity of economic sanctions in ways that can

entrench poverty, particularly in heavily policed communities of

color.

This Article takes on this question by first sorting through a

morass within the U.S. Supreme Court’s due process doctrine as it

relates to assessing the fundamental fairness of procedural practices,

including the assignment of burdens of proof. After offering a

framework that reconciles the doctrine, it applies that framework to

the excessive fines context by breaking the “burden of proof” into four

component parts: (1) the burden to raise the excessive fines claim, (2)

the burden of producing evidence relevant to that claim, (3) the

burden of persuading the decision maker as to the result, and (4) the

standard of proof to be employed in that determination. While the

government and private interests at stake remain constant across

these various burdens, disentangling them allows a more exacting

inquiry. In particular, it allows for an examination of how lawmak-

ers have crafted related processes and structures—such as the refusal

* Professor of Law, UCLA School of Law. I wish to thank Albertina Antognini, Kevin

Arlyck, Kellen Funk, Thea Johnson, Kaiponanea Matsumura, Richard Re, Joanna Schwartz,

and Jordan Blair Woods. This Article benefitted from exceptional research support by UCLA

Law Librarian Shangching Huitzacua, as well as Megan Kelly, Thomas Rueter, and the

editorial staff of the William & Mary Law Review.

407

408 WILLIAM & MARY LAW REVIEW [Vol. 63:407

to provide counsel or the vast array of direct and collateral conse-

quences attached to both non-payment and conviction—that make it

more likely that abuses of power will occur absent the check on

authority that burdens of proof can help provide.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 409

ABLE OF CONTENTS

INTRODUCTION ...................................... 410

I. S

ETTING THE SCOPE OF THE INQUIRY ................... 415

A. The Excessiveness Inquiry ......................... 416

B. Reconciling Mathews and Medina.................. 418

II. T

HE ASSIGNMENT OF BURDENS ....................... 432

A. Interests at Stake in Assigning Burdens.............. 433

1. Governmental Interests ......................... 433

2. Private Interests ............................... 443

B. Burden of Raising the Excessive Fines Claim ......... 450

1. Contemporary Considerations .................... 451

2. Historical Evidence ............................ 454

3. Assignment ................................... 459

C. Burden of Production ............................ 461

1. Contemporary Considerations .................... 462

2. Historical Evidence ............................ 464

3. Assignment ................................... 467

D. Burden and Standard of Persuasion ................ 468

1. Contemporary Considerations .................... 469

2. Historical Evidence ............................ 475

3. Assignment ................................... 479

a. Burdens of Persuasion ........................ 479

b. Standards of Persuasion ...................... 480

i. Financial Effect ............................ 481

ii. Excessiveness of Fines, Fees & Forfeitures:

Criminal ................................. 484

iii. Excessiveness of Fines, Fees & Forfeitures:

Civil .................................... 487

iv. Excessiveness of Restitution ................. 488

III.

DDRESSING CASES INVOLVING MULTIPLE FORMS OF

PUNISHMENT ..................................... 490

ONCLUSION ........................................ 496

410 WILLIAM & MARY LAW REVIEW [Vol. 63:407

NTRODUCTION

In 2019, the California Supreme Court took a rare step in the

development of the Eighth Amendment’s Excessive Fines Clause

jurisprudence, directing the parties in a pending case to answer a

question that is straightforward only on its surface: Who carries the

burden of proof in establishing the financial effect of a fine for

purposes of the excessiveness inquiry—the person fined or the

government?

This question is noteworthy not only because it had

not been a central issue as a series of related cases wound their way

through California’s intermediate appellate courts,

but also because

the assignment of burdens of proof in the excessive fines setting has

effectively been taken for granted.

In the few cases that reference

burdens of proof, the lower courts presume the burden is on the

defendant either without meaningful analysis or citation to

authority,

or by reference to the placement of burdens on the

1. See People v. Kopp, 451 P.3d 776, 776 (Cal. 2019). This case remained pending at the

time of publication. The California Supreme Court previously held that financial effect is

relevant to the excessiveness inquiry. See People ex rel. Lockyer v. R.J. Reynolds Tobacco Co.,

124 P.3d 408, 421 (Cal. 2005). The United States Supreme Court has yet to address that issue.

See infra notes 31-32 and accompanying text.

2. See, e.g., People v. Kopp, 250 Cal. Rptr. 3d 852, 893-94 (Ct. App. 2019) (stating that

it is the individual’s burden to prove financial effect, without conducting a constitutional

inquiry); see also People v. McMahan, 4 Cal. Rptr. 2d 708, 713 (Ct. App. 1992) (involving only

statutory interpretation).

3. This Article focuses on open questions regarding the assignment of burdens of proof

at sentencing; the U.S. Supreme Court has determined that on appeal, the factual findings

of the trial court are subject to a clearly erroneous standard and that the ultimate question

of excessiveness should be reviewed de novo. United States v. Bajakajian, 524 U.S. 321, 336

n.10 (1998) (citing Anderson v. Bessemer City, 470 U.S. 564, 574-75 (1985); Ornelas v. United

States, 517 U.S. 690, 697 (1996)).

4. For example, the First Circuit has stated: “It is the defendant’s burden to show un-

constitutionality.” United States v. Fogg, 666 F.3d 13, 19 (1st Cir. 2011). To support that

contention, the court cited United States v. Jose, 499 F.3d 105, 108 (1st Cir. 2007), which in

turn cited United States v. Ortiz-Cintron, 461 F.3d 78, 81-82 (1st Cir. 2006) and United States

v. Heldeman, 402 F.3d 220, 223 (1st Cir. 2005), both of which speak only about deference to

district court factual findings during de novo review. This mismatch has metastasized across

jurisdictions. See, e.g., United States v. Castello, 611 F.3d 116, 120 (2d Cir. 2010) (citing Jose,

449 F.3d at 108) (supporting the contention that the defendant has a burden to show un-

constitutionality of a forfeiture); United States v. Cheeseman, 600 F.3d 270, 283 (3d Cir. 2010)

(same); United States v. King, 231 F. Supp. 3d 872, 907-08 (W.D. Okla. 2017) (citing Fogg, 666

F.3d at 18-19) (stating the burden on both financial effect and the ultimate question of ex-

cessiveness rests with the defendant). In other cases, there is no attempt to cite to authority.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 411

person challenging a non-financial punishment as cruel and un-

usual without consideration of any potentially relevant distinctions

between the Eighth Amendment’s Excessive Fines and Cruel and

Unusual Punishments Clauses.

The question the California Supreme Court posed is of no small

matter. While the United States Supreme Court has interpreted the

Excessive Fines Clause to outlaw economic sanctions when their

severity is grossly disproportionate to the seriousness of the

offense,

it has not addressed who must prove the case and by how

much.

Yet, the assignment of burdens of proof is not just a second-

order problem to the question of the scope of the Clause’s protec-

tions; rather, that assignment is essential to its enforcement.

Burdens of proof may make it harder—or easier—for the govern-

ment to abuse the revenue-generating capacity of economic

sanctions by imposing punishments out of proportion with its

legitimate penal aims, including sanctions which may create or

entrench poverty for people and their families, particularly in

heavily policed communities of color.

To answer this question, this Article begins by offering a frame-

work that reconciles incoherence within the U.S. Supreme Court’s

due process doctrine, the situs of the Court’s jurisprudence on the

See, e.g., United States v. 829 Calle de Madero, 100 F.3d 734, 738 (10th Cir. 1996) (“The

burden of showing excessiveness is on the claimant.”).

5. See, e.g., United States v. Vriner, 921 F.2d 710, 712-13 (7th Cir. 1991) (citing Solem

v. Helm, 463 U.S. 277, 288 (1983)). Again, this myopic approach has spread from court to

court. For example, United States v. Alexander, 32 F.3d 1231, 1235 (8th Cir. 1994) relied on

United States v. Bucuvalas, 970 F.2d 937, 946 (1st Cir. 1992), which in turn relied on Tart v.

Massachusetts, 949 F.2d 490, 503 n.16 (1st Cir. 1991), which based its conclusion that the

defendant carried the burden of proving excessiveness on cruel and unusual punishments

cases.

6. Bajakajian, 524 U.S. at 334.

7. The extent of the Court’s intervention on this point is found in a dissenting opinion

in which Justice Kennedy stated without analysis that “[a] defendant must prove a gross

disproportion.” Id. at 348 (Kennedy, J., dissenting); see also United States v. Ahmad, 213 F.3d

805, 816 (4th Cir. 2000) (placing the burden on the person claiming excessiveness and citing

to the Bajakajian dissent); United States v. DeGregory, 480 F. Supp. 2d 1302, 1304 (S.D. Fla.

2006) (same); In re Prop. of Flores, 711 N.W.2d 733 (Iowa Ct. App. 2006) (unpublished table

decision) (same).

8. See Mitchell N. Berman, Constitutional Decision Rules, 90 V

A.L.REV. 1, 9 (2004)

(distinguishing “judicial determinations of what the Constitution means” from “distinct doc-

trinal rules that direct how courts—faced, as they inevitably are, with epistemic uncer-

tainty—are to determine whether the constitutional meaning has been complied with”).

412 WILLIAM & MARY LAW REVIEW [Vol. 63:407

assignment of burdens of proof. In Mathews v. Eldridge, the Court

announced a three-part test for assessing procedural rules in which

consideration is given to governmental interests, private interests,

and the risk that the rule—in this case, the burden—will exacerbate

the likelihood of an erroneous decision.

In subsequent years, the

Court relied on that test for assessing the fundamental fairness of

both criminal and civil procedural rules.

But after sixteen years of

employing the Mathews test, the Court muddied the waters in Me-

dina v. California.

Acting out of deference to state lawmakers in

establishing penal laws, the Medina Court stated it was rejecting

the application of Mathews in the criminal sphere, replacing it with

a test that required an examination of whether the assignment of a

burden “offends some principle of justice so rooted in the traditions

and conscience of our people as to be ranked as fundamental.”

But

Medina and its progeny have left unclear the role history is to play:

Is it a gatekeeper or merely probative evidence?

If the current doctrine is interpreted so that the historical record

serves as a gatekeeper, lawmakers could entrench their ability to

abuse the prosecutorial power and thereby extract revenues through

economic sanctions—the exact thing the Clause is designed to pre-

vent. They could do so by placing onerous burdens on a person

raising a challenge simply because the available historical record

cannot be used to establish a long-standing practice as to the

assignment of burdens. The historical record related to the Exces-

sive Fines Clause reveals why that approach is nonsensical. The

record exposes a long history of abuse, dating back at least to Mag-

na Carta, whereby governments have repeatedly exploited the

prosecutorial power, using economic sanctions to generate revenue

as a tax-avoidance mechanism by imposing exorbitant fines on

people who were politically vulnerable.

Even if procedural rules

had been established in those periods, they would be tainted by

those abuses, the antithesis of fundamental fairness. The historical

record on procedures related to the excessiveness of economic

9. 424 U.S. 319, 335 (1976) (citing Goldberg v. Kelly, 397 U.S. 254, 263-71 (1970)).

10. See, e.g., Ake v. Oklahoma, 470 U.S. 68, 77-84 (1984) (criminal procedural rules);

Addington v. Texas, 441 U.S. 418, 425 (1979) (civil procedural rules).

11. 505 U.S. 437, 445-46 (1992).

12. Id. at 445 (quoting Patterson v. New York, 432 U.S. 197, 201-02 (1977)).

13. See infra notes 67-87 and accompanying text.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 413

sanctions is also limited by a variety of other factors, including a

lack of attention to economic sanctions by commentators, changes

in litigation methods, and conflicting historical practices.

There is, however, a way to reconcile the doctrine. Mathews al-

lows us to focus on modern conceptions of risk: Will the assignment

of burdens significantly interfere with an important government

function, what risks does a person face if the determination is

wrong, and how within the particular inquiry would the burden

affect the decision maker’s ability to reach a proper conclusion?

History can aid in thinking through those questions. The longstand-

ing history of abuse, for example, helps make plain that otherwise

well-recognized government interests, such as the interest in im-

posing punishment for wrongdoing, must be taken with greater

caution.

But for the record to be used appropriately, we must be

honest about its limitations, taking into account those abuses, re-

fusing to fill in the blanks where the record is incomplete, and

recognizing and respecting anachronisms. In other words, under

this approach history can serve as a partner with, rather than a

gatekeeper to, modern understandings of fundamental fairness.

With that framework for assessing fundamental fairness in mind,

this Article turns to the assignment of burdens of proof for excessive

fines claims. It does so by breaking the “burden of proof” into its

component parts: the burden to raise an excessive fines claim, the

burden of producing evidence related to the claim, the burden of

persuading the decision maker as to the result, and the standard of

proof to be employed in making that determination. For all of the

burdens, the governmental interests remain the same: the interest

in responding to violations of the law; in removing the means of

committing crimes and the proceeds generated by them from the

hands of those who offend; in restoring victims of crime through

financial support; in avoiding unnecessary administrative and

economic costs; in ensuring that the operation of legal systems

comports with the Constitution; and in protecting its own legiti-

macy.

So, too, the private interests at stake: no matter the burden,

people upon whom excessive fines are imposed face the risk of

14. See infra notes 89-103 and accompanying text.

15. See infra notes 112-30 and accompanying text.

16. See infra Part II.A.1.

414 WILLIAM & MARY LAW REVIEW [Vol. 63:407

financial precarity that prevents them and their families from

meeting basic human needs, subjects them to highly punitive and

stigmatizing responses to nonpayment and further punishment, and

strips their communities of access to the resources that may

otherwise allow them better opportunities to thrive and engage in

full civic participation.

Disentangling the various aspects of the burdens of proof allows

a more exacting focus of the third Mathews consideration: the way

in which an assignment of each particular burden may exacerbate

the risk that an erroneous determination—or even no determination

at all—will be reached as to the excessiveness of fines. Attending to

the burden of raising an excessive fines claim prompts an inquiry

into what structures lawmakers have created that would prevent

such claims from being raised, such as a denial of counsel or other

system designs that render challenges unlikely.

Distinguishing the

burden of production allows us to move beyond assumptions about

the challenger having access to all information regarding their

ability to pay or absorb economic sanctions and to recognize that the

government has unique access to information about the vast

apparatus it has created—including its collections mechanisms,

penalties for nonpayment, and collateral consequences of convic-

tion—that directly relate to the severity of the punishment.

Focusing precisely on the burdens and standards of persuasion

better attends to the risks created by the inherently imprecise

nature of assessing overall excessiveness and financial effect, the

racial and cultural biases that may infect those determinations, and

the lack of opportunities for reversing the improper imposition of

excessive sanctions.

This Article proceeds in three parts. Part I begins by identifying

the two places within the excessive fines inquiry for which burdens

of proof remain unassigned: the determination of financial effect of

the economic sanction for the purpose of establishing punishment

severity, and the ultimate determination that sanctions are

constitutionally excessive. It then sets out and proposes a way of

17. See infra Part II.A.2.

18. See infra Part II.B.

19. See infra Part II.C.

20. See infra Part II.D.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 415

reconciling the Mathews-Medina conundrum that allows history to

play a role without unduly predominating the due process inquiry.

Part II then applies that framework in the excessive fines context,

detailing contemporary concerns and risks while plumbing the

historical record for what it has to offer. It concludes each assess-

ment of the four burdens with a proposal for their assignment. The

proposed burdens and standards of proof vary depending on how

lawmakers have devised related procedures and structures that

make abuse more likely and exacerbate the risk of private harm,

and by the type of economic sanction at issue. Finally, Part III

addresses how courts could make those competing burdens and

standards of persuasion between economic sanction types (for

example, fines and restitution), or punishment types (economic or

carceral) administrable, and perhaps even promote a more thought-

ful examination of disproportionality by sentencing judges than

currently occurs.

ETTING THE SCOPE OF THE INQUIRY

Before undertaking an assignment of the burdens of proof in the

excessive fines setting, it is necessary to address two issues in order

to set the scope of the inquiry. First are the Eighth Amendment

parameters for assessing excessiveness itself. Section A sets out the

mechanism for that assessment—which turns on a finding of gross

disproportionality—and in particular what aspects of the test re-

quire an assignment of burdens. The second issue is the question of

what factors are relevant to that assignment. Section B discusses

how the Court has approached this question through the Due

Process Clause’s requirement of fundamental fairness, though the

messiness of that doctrine leaves open questions about the role of

historical practices in making that assessment. A framework for

resolving the doctrinal disorder follows.

21. The Court has treated juveniles as having enhanced rights within the cruel and un-

usual punishments context. See, e.g., Graham v. Florida, 560 U.S. 48, 74 (2010). This suggests

that the Court may take a more protective approach to juveniles in the excessive fines context

as well, but that analysis—as well as considerations of fundamental fairness in juvenile court

proceedings in which parents or guardians may be held jointly or severally liable for economic

sanctions imposed on juveniles adjudicated delinquent—are beyond the scope of this Article.

See, e.g., F

LA.STAT. § 985.437(2)-(3).

416 WILLIAM & MARY LAW REVIEW [Vol. 63:407

A. The Excessiveness Inquiry

The assignment of burdens is absent from the doctrine as to two

issues of contestation within the excessiveness inquiry: the determi-

nation of the financial effect of an economic sanction on a person

and his or her family, and the ultimate determination of whether

the sanctions to be imposed are grossly disproportionate to the

underlying offense.

In United States v. Bajakajian, the Court adopted the gross

disproportionality test for measuring whether economic sanctions

are excessive, which requires weighing offense seriousness and pun-

ishment severity.

On the offense-seriousness side of the scale are

crime and culpability facts.

The crime facts—facts about the na-

ture of the offense and the person’s culpability for it—must be

established at trial beyond a reasonable doubt or via guilty plea in

criminal matters,

though lawmakers have allowed a reduction in

the standard of proof in nominally civil proceedings in which eco-

nomic sanctions are imposed.

Beyond the crime facts, sentencing

factors related to culpability, such as a person’s criminal history,

may be determined after the guilt phase of criminal trials with the

prosecution’s burden set at a preponderance of the evidence.

Offense Seriousness

Crime Facts, Criminal Cases—Prosecution, BRD

Crime Facts, Civil Cases—Prosecution, Less than BRD

Sentencing Factors—Prosecution, Preponderance

Shifting to the punishment-severity side of the scale, we look to

the dollar value of the economic sanctions. For fines and fees, the

allowable dollar value is set out in statute, either within a range or

22. 524 U.S. 321, 336-37 (1998).

23. See, e.g., id. at 337.

24. In re Winship, 397 U.S. 358, 364 (1970); see also Blakely v. Washington, 542 U.S. 296,

303-04 (2004) (holding that at sentencing a judge may rely only on facts established by the

guilty plea to set the range of sentence available). Lawmakers may choose to reduce or shift

the burden for crime facts related to affirmative defenses. See Patterson v. New York, 432

U.S. 197 (1977).

25. See infra notes 143-46 and accompanying text.

26. See Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 417

at a specific amount.

The dollar value of a restitution award is

established at a hearing, with the burden of proving a compensable

amount on the prosecution, typically by a preponderance.

Forfei-

tures operate differently. Forfeitures occur when the government

seizes cash or property with a suspected link to criminal activity

and converts the ownership interests for its own use.

Though the

government is required to prove the relationship between the cash

or property seized and the purported crime,

for punishment se-

verity purposes, the dollar value is simply dependent upon the

amount of cash or the liquidated value of the property seized.

Punishment severity may also include the financial effect of the

sanctions—the ability of a person and his or her family to pay fines,

fees, or restitution or to absorb the loss of forfeited cash or property.

The Court has not yet resolved whether financial effect is relevant

27. See, e.g., KAN.STAT.ANN. § 21-6611(a)-(b) (2012). This Article uses the term “fees” to

refer to administrative fees—such as court costs, warrant fees, indigent defense fees, and the

like. See, e.g., Beth A. Colgan, The Excessive Fines Clause: Challenging the Modern Debtors’

Prison, 65 UCLA

L. R

EV. 2, 35-36 (2018). For ease of reference, the term is also used here to

capture what are commonly referred to as “surcharges” or “assessments,” which are typically

a flat amount added to or a percentage of base fine amounts that operate like fines.

Surcharges may be placed in general funds or be targeted for particular purposes. See id. at

32-33.

28. C

ONG.RSCH.SERV., RL34138, RESTITUTION IN FEDERAL CRIMINAL CASES 20 (2019); see

also Hester v. United States, 139 S. Ct. 509, 510 (2019) (Gorsuch, J., dissenting) (explaining

that restitution requires finding additional facts not established in the guilt phase). There is

an open question as to whether the facts used to establish restitution must be decided by a

jury beyond a reasonable doubt because an award of restitution necessarily raises the stat-

utory maximum sentence from zero dollars to the compensation amount. See id. (positing that

the Court should consider whether restitution falls within the jury trial and standard of proof

requirements set out in Apprendi v. New Jersey, 530 U.S. 466 (2000)). That inquiry, which is

based on the Sixth Amendment jury trial right, is outside of the scope of this Article.

29. See, e.g., 18 U.S.C. § 982(a).

30. See, e.g., id.; 18 U.S.C. § 1963(a); 21 U.S.C. §§ 853(a), 881(a). The burden of proof

required to establish the “nexus” between the cash and property to be forfeited and the alleged

criminal activity varies across jurisdictions. See infra notes 143-46 and accompanying text.

The Court has not been asked to determine the constitutionality of using a standard less than

beyond a reasonable doubt to address that question, nor has it opined on whether the question

of nexus—which does not fit within offense seriousness or punishment severity used to mea-

sure gross disproportionality—is relevant to the excessiveness inquiry. See Austin v. United

States, 509 U.S. 602, 623, 625-26 (1993) (Scalia, J., concurring) (raising the question of

whether the excessiveness of instrumentality forfeitures should be ascertained through an

examination of the nexus between the property and offense). At least one lower court has

adopted a nexus test and also spoken to the question of burdens, placing the burden on the

government to establish nexus so that the property owners would not “be forced to prove a

negative.” In re King Properties, 635 A.2d 128, 133 (Pa. 1993).

418 WILLIAM & MARY LAW REVIEW [Vol. 63:407

to measuring punishment severity.

It has, however, suggested that

it leans favorably to its inclusion.

Therefore, in the interest of pro-

viding an analysis robust enough to capture this potential aspect of

the proportionality inquiry, this Article presumes that the Court

will determine that financial effect is relevant. But the question re-

mains: Who should hold the various burdens of proof and by what

standard should the determination of financial effect be made?

Punishment Severity

Dollar value of fines & fees—Statutory

Dollar value of restitution—Prosecution, Preponderance

Dollar value of forfeitures—Value of Cash or Property

Financial Effect—?

Once the component parts of offense seriousness and punishment

severity are established, a court must engage in the excessiveness

inquiry by discerning whether the punishment severity outweighs

offense seriousness to such an extent that it is rendered grossly

disproportionate.

As with financial effect, the Court has not yet

had the opportunity to ascertain the appropriate assignment of bur-

dens on that question, and so both assignments are currently

missing from the doctrine. This Article will next address the ques-

tion of how to ensure those assignments are in keeping with due

process.

B. Reconciling Mathews and Medina

For both the preliminary issue of financial effect and the over-

all determination of disproportionality, a question remains as to

what factors should be considered to ensure that the assignment

31. Timbs v. Indiana, 139 S. Ct. 682, 688 (2019) (citing United States v. Bajakajian, 524

U.S. 321, 340 n.15 (1998)) (noting the Court had not yet taken a position); see also Colo. Dep’t

of Lab. & Emp. v. Dami Hosp., L.L.C., 442 P.3d 94, 96, 101-02 (Colo. 2019), cert. denied, 140

S. Ct. 849 (2020) (holding that financial effect is relevant to excessiveness). At the time of

publication, the Court was again considering taking up this question. See Rosales-Gonzales

v. United States, No. 21-5305 (2021).

32. Beth A. Colgan & Nicholas M. McLean, Financial Hardship and the Excessive Fines

Clause: Assessing the Severity of Property Forfeitures After Timbs, 129 Y

ALE L.J.F. 430, 433-

37 (2020).

33. United States v. Bajakajian, 524 U.S. 321, 336-37 (1998).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 419

of burdens comports with fundamental fairness. The Court has

typically approached the question of whether such an assignment

satisfies due process under the test set forth in Mathews v. Eldridge,

which balances governmental interests, private interests, and the

extent to which the assignment will contribute to or reduce the risk

of an erroneous decision.

After nearly two decades of relying on the

Mathews test in both criminal and civil matters, the Court man-

dated a more restrictive test in the criminal sphere in Medina v.

California.

This distinction is particularly relevant here because

lawmakers employ economic sanctions in both criminal and civil

settings, and the Court has held that the Excessive Fines Clause’s

protections extend to both so long as the sanctions are at least

partially punitive.

In Medina, the Court held that the analytical framework for

assessing procedural rules, including the assignment of burdens of

proof, must include an examination of historical practice for the

purpose of establishing whether a procedure “offends some principle

of justice so rooted in the traditions and conscience of our people as

to be ranked as fundamental,” thereby necessitating an inquiry into

early English and American practices.

In so holding, the Court acknowledged that it had employed the

Mathews test in two prior cases involving criminal procedure.

the first, United States v. Raddatz, the Court upheld the Federal

Magistrates Act, which allowed a magistrate to make findings and

recommendations related to a motion to suppress a confession as

involuntarily obtained.

Mr. Raddatz raised several claims, one of

which was a due process challenge to the statute.

The Raddatz

34. See, e.g., Addington v. Texas, 441 U.S. 418, 425 (1979) (citing Mathews v. Eldridge,

424 U.S. 319, 335 (1976)).

35. Medina v. California, 505 U.S. 437, 443, 445-46 (1992).

36. Austin v. United States, 509 U.S. 602, 604, 621-22 (1993) (holding that the Excessive

Fines Clause applies to economic sanctions, including civil forfeitures, nominally labeled civil

so long as they are at least partially punitive); see also United States v. James Daniel Good

Real Prop., 510 U.S. 43, 53-54 (1993) (using the Mathews test to assess the constitutionality

of civil forfeiture proceedings).

37. Medina, 505 U.S. at 445 (quoting Patterson v. New York, 432 U.S. 197, 201-02 (1977)).

38. Id. at 444-45.

39. 447 U.S. 667, 683-84 (1980).

40. The other claims involved the voluntariness of a confession, statutory interpretation

of the Federal Magistrates Act, and a constitutional claim based on Article III. See generally

id.

420 WILLIAM & MARY LAW REVIEW [Vol. 63:407

Court framed the challenge as falling under the three-part Mathews

test.

It then engaged in a fairly shallow inquiry as to the private

interest prong, pointing to several prior cases in which it had held

that a person’s interests were reduced when the question at stake

in a particular criminal proceeding is tangential to the ultimate

determination of guilt.

In dissent, Justice Marshall chided the

majority for failing to fully engage with the significant private

interests at stake in ensuring that people were not deprived of

liberty on the basis of involuntary confessions.

He also took issue

with how the majority’s opinion fell short with respect to the third

Mathews factor regarding the risk of error, positing that the risk is

heightened when a judge must later rely on a magistrate’s written

recommendation as to voluntariness rather than personally being

able to judge the credibility of witnesses.

But, rather than faulting

the Raddatz majority for insufficiently engaging with the Mathews

factors, the Medina Court described Raddatz as having not applied

Mathews at all, stating that it merely “cited to the Mathews

balancing test ... but did not explicitly rely upon it in conducting the

due process analysis.”

In addition to Raddatz, to reject the Mathews approach to as-

sessing whether criminal procedural rules meet due process, the

Medina Court also had to contend with its prior reliance on the test

in Ake v. Oklahoma, in which it held that indigent defendants had

a right to appointed psychiatric experts in cases in which insanity

is a significant factor.

To do so, Justice Kennedy, writing for the

Medina majority explained: “The holding in Ake can be understood

as an expansion of earlier due process cases holding that an in-

digent criminal defendant is entitled to the minimum assistance

necessary to assure him ‘a fair opportunity to present his defense’

and ‘to participate meaningfully in [the] judicial proceeding.’”

Yet,

that language was plucked from the Ake opinion just before the Ake

Court explained that the concept of minimal assistance was

41. Id. at 677-81.

42. Id.

43. Id. at 699-702 (Marshall, J., dissenting).

44. Id.

45. Medina v. California, 505 U.S. 437, 444-45 (1992).

46. See Ake v. Oklahoma, 470 U.S. 68, 77-85 (1985).

47. Medina, 505 U.S. at 444-45 (alteration in original) (quoting Ake, 470 U.S. at 76).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 421

intended “merely to begin our inquiry,” and that the question of

whether psychiatric experts must be provided had to be assessed

under the Mathews three-part framework.

The Ake Court then

diligently addressed each component, recognizing that the govern-

mental interests were limited given the minimal administrative cost

of supplying psychiatric experts, that the private interest at stake—

life or liberty—was “almost uniquely compelling,” and that it was

important to have such experts weigh in on the inherently imprecise

question of sanity in order to reduce the risk of error.

In light of its

full reliance on the Mathews test, the Medina Court’s assessment

that it was “not at all clear that Mathews was essential” to the Ake

decision is at best baffling.

The Medina majority’s rejection of the Mathews approach came

under immediate fire. In a concurrence joined by Justice Souter,

Justice O’Connor noted that the Court “obviously applied” the

Mathews test in Ake and that the test “remains a useful guide in

due process cases.”

Likewise, in a dissent joined by Justice

Stevens, Justice Blackmun wrote that he was “not sure what the

Court mean[t]” when it claimed a lack of reliance on Mathews by the

Raddatz and Ake Courts, “because both cases unquestionably set

forth the full Mathews test and evaluated the interests.”

What is more, the Medina opinion leaves the role of the now-

mandated historical inquiry unresolved. The majority opinion

suggests that history serves as a sort of gatekeeper, by which a

modern procedure must be left untouched unless it goes against a

long-standing historical practice.

But in its actual employment of

that framework, history did not serve as a gatekeeper as suggested.

The legal issue being addressed was whether a California law allo-

cating the burden of persuasion to establish incompetency to stand

trial to the defendant by a preponderance of the evidence satisfied

48. Ake, 470 U.S. at 76-77.

49. Id. at 78-83.

50. Medina, 505 U.S. at 444.

51. Id. at 453 (O’Connor, J., concurring).

52. Id. at 462 n.2 (Blackmun, J., dissenting).

53. Id. at 445-46 (majority opinion) (quoting Patterson v. New York, 432 U.S. 197, 201-02

(1977)) (proposing that a criminal procedural rule “is not subject to proscription under the Due

Process Clause unless” it violates historical practice).

422 WILLIAM & MARY LAW REVIEW [Vol. 63:407

due process.

The majority began its analysis by examining early

English and American history, but—upon finding “no historical

basis for concluding that the allocation of the burden of proving

incompetence to the defendant violates due process”— rather than

ending its inquiry, the majority took up consideration of “whether

the rule transgresses any recognized principle of ‘fundamental

fairness’ in operation.”

In doing so, the majority effectively en-

gaged in a Mathews-like balancing test. It distinguished other cases

assigning the burden of persuasion to the government on the

grounds that in those cases the government was seeking to intro-

duce unconstitutionally obtained evidence, whereas here it had

committed no such violation—suggesting comparatively height-

ened governmental interests in this setting.

The majority also

determined that the risk of an erroneous competency decision to the

individual was low given that trial counsel would be available to

protect his or her interests, including by re-raising the competency

question if necessary.

And it considered the limited risk that a

preponderance of evidence standard would result in erroneous

determinations of competency given that it would only affect “a

narrow class of cases where the evidence is in equipoise; that is,

where the evidence that a defendant is competent is just as strong

as the evidence that he is incompetent.”

As Justice Blackmun

noted in dissent, “it is clear that the Court ends up engaging in a

balancing inquiry not meaningfully distinguishable from that of the

Mathews v. Eldridge test it earlier appears to forswear.”

Later opinions have also left open the question of what role

history plays in the due process analysis. Less than six months after

the Court announced Medina, it suggested that historical and con-

temporary practices were on equal footing.

Four years later, a plu-

rality of the Court described historical practice as the “primary

54. Id. at 439.

55. Id. at 446-48.

56. Id. at 451-52.

57. Id. at 450-51.

58. Id. at 449.

59. Id. at 462 (Blackmun, J., dissenting).

60. See Parke v. Raley, 506 U.S. 20, 32 (1992) (citing Medina, 505 U.S. at 446-47)

(“Respondent cites no historical tradition or contemporary practice indicating that Kentucky’s

scheme violates due process.”).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 423

guide in determining whether the principle in question is funda-

mental.”

Unsurprisingly, the Court engaged in no historical

inquiry in one case involving procedural rules related to DNA test-

ing requests, which could not possibly have had a historical coun-

terpart.

And in the three remaining cases in which the Court

purported to apply Medina,

it described the historical inquiry as

merely probative of whether a procedure was fundamentally fair,

considering it alongside contemporary practices and concerns.

For

example, in Cooper v. Oklahoma, the Court preserved the Medina

Court’s determination that the burden of persuasion could be placed

on a person claiming incompetency to stand trial but struck down

a statute raising that burden to a clear and convincing evidence

standard. It did so by looking both to historical evidence and modern

conceptions of fairness, taking guidance from a series of cases in

which the Court expressly relied on the Mathews test to assign

burdens of proof.

This morass raises the question of whether the Mathews approach

to ascertaining fundamental fairness can be reconciled with the

Medina Court’s interest in using historical evidence, whether that

be as a gatekeeper or simply a consideration alongside contempo-

rary indicators of fairness.

As becomes clear by examining the question through the lens of

the Excessive Fines Clause, allowing history to serve as a gate-

keeper is in conflict with the due process goal of fundamental

fairness. The Medina approach—in which due process is only

61. Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (plurality opinion).

62. Dist. Att’y’s Off. for the Third Jud. Dist. v. Osborne, 557 U.S. 52, 69 (2009).

63. In its two most recent decisions, the Court declined to take up the extent to which

Mathews and Medina control questions involving criminal procedure. Nelson v. Colorado, 137

S. Ct. 1249, 1255, 1256 n.9 (2017) (applying the Mathews test to a procedure by which people

may seek return of monies collected for economic sanctions imposed to a conviction that has

subsequently been reversed or vacated because, without a valid conviction, criminal processes

are not implicated); id. at 1258 (Alito, J., concurring) (arguing that the Medina test should

have been used because the economic sanctions at issue were originally imposed in criminal

cases); Kaley v. United States, 571 U.S. 320, 333-34 (2014) (declining to resolve the question

of whether Mathews or Medina applied to a procedure precluding people from challenging

grand jury probable cause determinations at pretrial, post-restraint hearings, reasoning that

the claimant would lose even if the Mathews test applied).

64. See Deck v. Missouri, 544 U.S. 622, 627-29 (2005); Cooper v. Oklahoma, 517 U.S. 348,

356-66 (1996); Herrera v. Collins, 506 U.S. 390, 407-11 (1993).

65. 517 U.S. at 356-66.

424 WILLIAM & MARY LAW REVIEW [Vol. 63:407

implicated if a modern procedure conflicts with a longstanding

historical protection—necessarily requires proof of protective pro-

cedural practices within the historical record in order to claim a

right to such a protection today.

That approach fails to account for

the ways in which historical processes might be compromised by the

very abuses a clause is designed to protect against.

The story of the Excessive Fines Clause is set against a centuries-

long history of lawmakers designing systems that allow the gov-

ernment to extract revenue through the use of disproportionate

economic sanctions rather than taxation.

The roots of the Clause

date back at least to Magna Carta,

which responded to such

abuses by placing two limitations on the imposition of amercements,

which were predecessors to modern fines

A free man shall be amerced for a small fault only according to

the measure thereof, and for a great crime according to its

magnitude, saving his position; and in like manner, a merchant

saving his trade, and a villein saving his tillage, if they should

fall under Our mercy.

Though Magna Carta was designed to protect against abusive

economic punishments, in the centuries that followed, English

monarchs repeatedly ignored its guarantees, including most no-

toriously through the use of the Star Chamber. Among other abuses,

its jurists employed extraordinary fines to three ends: to drain

power from Parliament by creating a source of revenue that

undermined its taxing authority, to personally enrich monarchs and

nobles in good standing, and to severely punish those who spoke out

against the Church or Crown.

Even jurists perceived as less

66. See supra note 37 and accompanying text.

67. See Timbs v. Indiana, 139 S. Ct. 682, 694 (2019) (Thomas, J., concurring).

68. As Justice Thomas has noted, the proportionality requirement embodied in the Ex-

cessive Fines Clause arguably predates Magna Carta and extends back to the Charter of

Liberties of Henry I from the year 1101. See id. at 693.

69. Beth A. Colgan, Reviving the Excessive Fines Clause, 102 C

ALIF.L.REV. 277, 296-97

(2014).

70. Magna Carta, ch. 20 (1215), in A.

E. D

ICK HOWARD,MAGNA CARTA:TEXT &COM-

MENTARY 42 (rev. ed. 1998).

71. See Timbs, 139 S. Ct. at 688; id. at 693-95 (Thomas, J., concurring); Brief for Eighth

Amendment Scholars as Amici Curiae Supporting Neither Party, Timbs v. Indiana, 139 S. Ct.

682 (2019) (No. 17-1091), 2018 WL 4522295.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 425

beholden to the monarchy appeared willing to impose heavy fines.

Take, for example, Sir Edward Coke, who has been heralded as a

“Challenger of Kings,” due to his willingness to push back against

the abuses of the Star Chamber while serving as Chief Justice of the

Court of Common Pleas and the King’s Bench.

Coke also recog-

nized both Magna Carta and the English common law as restricting

the imposition of excessive economic sanctions.

Yet, existing

records also paint Coke as particularly adamant about the imposi-

tion of exorbitant fines, even as compared to his fellow jurists.

While it does appear that fines assessed during the period in which

the Star Chamber operated were occasionally remitted,

it is

72. Charles H. Randall, Jr., Sir Edward Coke and the Privilege Against Self-

Incrimination, 8 S.C.

L. R

EV. 417, 417-19 (1956) (regarding Coke’s efforts to end the oath ex

officio, a tool for prosecuting heresy, and against the use of torture).

73. Coke served as a jurist prior to the adoption of the English Bill of Rights in which the

prohibition against “excessive fines” was first articulated. See infra note 77. Because Magna

Carta spoke of amercements, Coke understood its protections to be limited to amercements

imposed by juries, but posited that the common law afforded the same protections against

fines imposed by judges. T

HE REPORTS OF SIR EDWARD COKE,KT., VOL. 11, 43-44 (E. & R.

Nutt, & R. Gosling 1728) (Richard Godfrey’s Case, Mich. 12 Jac. I.) (explaining that “the

Reasonableness of the Fine shall be judged by the Justices; and if it appears to them to be

excessive, it is ... prohibited by the Common Law” and citing Magna Carta for the proposition

that “[e]xcessive amercement is against the law”); see also Sollom Emlyn, Preface to the

Second Edition of the State Trials, in T.B.

OWELL,ACOMPLETE COLLECTION OF STATE TRIALS

AND

PROCEEDINGS FOR HIGH TREASON AND OTHER CRIMES AND MISDEMEANORS FROM THE

EARLIEST PERIOD TO THE YEAR 1783, at xxxv (London, T.C. Honsend, Peterborough-Court,

Fleet Street 1816) (citing Coke in describing Magna Carta as applying to amercements and

the common law as applying to fines).

74. See J

OHN SOUTHERDEN BURN,THE STAR CHAMBER:NOTICES OF THE COURT AND ITS

PROCEEDINGS; WITH A FEW ADDITIONAL NOTES OF THE HIGH COMMISSION 86 (London, J.

Russell Smith 1870) (describing a case in which the Earl and Countess of Suffolk and Sir John

Bingley were sentenced to fines ranging between £30,000 and £2,000, despite Coke’s vote for

fines of £100,000 and £5,000, respectively); id. at 87 (describing the case of Sir Henry

Yelverton, the attorney general, who was convicted “of passing some clauses in the City

Charter, not agreeable to the King’s warrant,” for which he was fined £4,000 despite Coke’s

declaration that the fine should have been £6,000). One commentator speaking on abuses by

jurists in the era remarked:

Such methods as these should be below men of honour, not to say men of

conscience: yet in the perusal of this Work, such persons will too often arise to

view; and I could wish for the credit of the Law, that that great Oracle of it, the

Lord Chief Justice Coke, had given less reason to be numbered among this sort.

Emlyn, supra note 73, at xxiv.

75. See, e.g., B

URN, supra note 74, at 54 (noting a remission of the fine imposed in the case

of a sheriff who refused to execute a heretic because the sheriff had acted on “the advice of

divers gentlemen of worship of the county, some being learned men and justices of the Peace,

and as he was no favourer of heresies”); id. at 84 & n.2 (discussing the pardoning of two young

426 WILLIAM & MARY LAW REVIEW [Vol. 63:407

unsurprising that procedural rules for making a request for re-

mission—which would cut so against the modus operandi—are

absent from the historical records of the time, including in The

Institutes of the Laws of England, Coke’s seminal writings on the

English common law.

The abuses of the Star Chamber were mirrored in later practices

despite additional recognition of constitutional limitations on ex-

cessive sanctions. The prohibition against the imposition of ex-

cessive fines in the English Bill of Rights arose out of reactions to

the Star Chamber,

and was in turn adopted verbatim, first in the

Virginia Declaration of Rights,

and ultimately in the Eighth

Amendment.

Yet, like Magna Carta in England before it, the Ex-

cessive Fines Clause was at times ignored on American soil.

Though the use of the penal law—and particularly vagrancy codes—

to control Black people pre-date the Civil War,

a particularly

notorious example of lawmaker behavior in contradiction to the

Clause is found in the post-antebellum South through the adoption

of the Black Codes, a series of laws applicable explicitly or through

practice only to Black people.

Following trials that were often at

men convicted for dueling because King James wished to make a symbolic gesture of mercy

on his first appearance at the court); id. at 140 (noting that the fines and imprisonment

imposed had been pardoned “on account of their poverty”).

76. See generally E

DWARD COKE,THE THIRD PART OF THE INSTITUTES OF THE LAWS OF

ENGLAND:CONCERNING HIGH TREASON, AND OTHER PLEAS OF THE CROWN, AND CRIMINAL

CASES (London, M. Fleshner 1644).

77. An Act Declaring the Rights and Liberties of the Subject, and Settling the Succession

of the Crown 1689, 1 W. & M. c. 2, § 11; see also Emlyn, supra note 73, at xxxv-vi (“It was the

non-observance of these Rules, which occasioned the dissolution of the Star Chamber.”);

Powell v. McCormack, 395 U.S. 486, 502 (1969).

78. V

A.CONST. OF 1776, art. I, § 9.

79. U.S.

ONST. amend. VIII; see also Timbs v. Indiana, 139 S. Ct. 682, 688 (2019);

Browning-Ferris Indus. of Vt. v. Kelco Disposal, Inc., 492 U.S. 257, 267 (1989).

80. See J

ULIUS GOEBEL JR.&T.RAYMOND NAUGHTON,LAW ENFORCEMENT IN COLONIAL

NEW YORK:ASTUDY IN CRIMINAL PROCEDURE (1664-1776) 702 (Julius Goebel Jr., ed. 1944)

(explaining that during the colonial period, records of fineable offenses show “signs of in-

dulgence and this, indeed, chiefly in relation to prosecutions by Crown informations which

were viewed with a jaundiced eye”).

81. R

ISA GOLUBOFF,VAGRANT NATION:POLICE POWER,CONSTITUTIONAL CHANGE, AND THE

MAKING OF THE 1960S 115 (2016).

82. See generally D

OUGLAS A. BLACKMON,SLAVERY BY ANOTHER NAME:THE RE-

NSLAVEMENT OF BLACK AMERICANS FROM THE CIVIL WAR TO WORLD WAR II (2008); see also

Timbs, 139 S. Ct. at 688-89 (discussing the use of the Black Codes); id. at 697-98 (Thomas, J.,

concurring) (same).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 427

best a sham, fines were imposed and the debts sold to private

parties who then extracted labor from Black people in practices that

mirrored enslavement.

Again, it would be surprising if the his-

torical record of a system designed to extract wealth and labor with-

out meaningful process were to include procedural rules that would

undercut those efforts.

In both the English and early American histories, there are also

records of abusive practices related to economic sanctions imposed

in capital offenses that would make the existence of protective pro-

cedures surprising. In addition to execution, capital crimes were

punished with partial or full forfeiture of one’s estate, by which the

person’s property interests were transferred to the government.

The record is mixed as to the actual prevalence of these practices;

there are some indications that statutes requiring forfeiture of

estate went unenforced or if imposed were later reversed.

But the

record also suggests that these forfeitures were seen as a literal fate

worse than death, leading lawmakers to take troubling steps to

secure those revenues. For example, in the thirteenth and four-

teenth centuries, English criminal trials involved the bringing

forward of the accused who was questioned as to how they would

plead; a refusal to plead meant being “subjected to the infamous

83. See Timbs, 139 S. Ct. at 688-89.

84. See J.F. A

RCHBOLD,ACOMPLETE PRACTICAL TREATISE:CRIMINAL PROCEDURE,

LEADING AND EVIDENCE, IN INDICTABLE CASES 633 (New York, Banks & Brothers 8th ed.

1880); J

OEL PRENTISS BISHOP, COMMENTARIES ON THE CRIMINAL LAW,VOL. 1 §§ 622, 628 (Bos-

ton, Little, Brown and Co. 1856); 4 W

ILLIAM BLACKSTONE,COMMENTARIES ON THE LAWS OF

ENGLAND 374-81 (1769); 1 JAMES FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL LAW OF

ENGLAND 487-89 (London, Macmillan & Co. 1883). Punishment may also involve corruption

of blood, which precluded heirs to the person convicted from inheriting the person’s property.

LACKSTONE, supra, at 388-89; STEPHEN, supra, at 487-89. These economic sanctions would

undoubtedly constitute fines under the Court’s interpretation of the Excessive Fines Clause.

See supra note 36 and accompanying text.

85. See, e.g., G

OEBEL &NAUGHTON, supra note 80, at 712-13 (explaining that though

mandated by the Crown, forfeitures of estate were not enforced in New York “due to a variety

of factors, not the least of which was the failure to set up in New York an establishment com-

parable to the English Exchequer whereby the exaction of forfeitures would be assured” and

because the money flowing to the Crown “tended to promote ... indifference”); id. at 713

(explaining that there was use of forfeiture of estate following the Leisler Rebellion, but that

at least some properties were returned to the defendants’ families or never seized, and other

properties were ultimately restored after an act of the New York assembly); Colgan, supra

note 69, at 332-33 (describing the large-scale remission of forfeitures of estate that had been

imposed following the Revolutionary War).

428 WILLIAM & MARY LAW REVIEW [Vol. 63:407

peine forte et dure, wherein weights were laid upon them until they

pleaded or expired; the recalcitrant perished, but, not having been

convicted, they avoided forfeiture.”

In addition, the lure of for-

feiture revenues could also result in increased prosecutions. In

colonial New York, for example, officials attempted to use forfeiture

of estate for economic gain, instituting “prosecutions in order that

the debts of the Province might be satisfied from the forfeitures.”

It would be surprising indeed to find that the officials who devised

methods of torture to push people toward accepting capital sen-

tences or who drummed up prosecutions to resolve fiscal downturns

had also built into these systems burdens of proof or other proce-

dures that would protect people from such wrongs.

In other words, this history of abusive practices by the very gov-

ernment actors that would bear responsibility for creating proce-

dural protections shows the danger in employing the Medina Court’s

test in which due process could only be implicated if a modern pro-

cedure conflicted with a longstanding historical protection.

avoid a test myopic to such abuses, any use of history should ac-

count for how a lack of procedural protections may be the result of

practices that would be in violation of a given constitutional

protection had it been enforced.

Beyond gaps that may exist due to abusive practices, it is critical

to understand that the historical record may be incomplete, not

because a particular practice did not exist, but because it simply

was not recorded. Despite the ubiquitous use of economic

sanctions,

most surviving historical materials focus elsewhere.

Economic sanctions such as fines (directed in some cases to victims

as a form of restitution), costs, and limited forfeitures were most

commonly employed as punishment for misdemeanor offenses.

86. THOMAS ANDREW GREEN,VERDICT ACCORDING TO CONSCIENCE:PERSPECTIVES ON THE

ENGLISH CRIMINAL TRIAL JURY 1200-1800 15 (1985); see also J.H. BAKER,AN INTRODUCTION

ENGLISH LEGAL HISTORY 580-81 (3d ed. 1990).

87. G

OEBEL &NAUGHTON, supra note 80, at 714.

88. See supra note 37 and accompanying text.

89. G

OEBEL &NAUGHTON, supra note 80, at 709 (“The fine, as we have indicated, was the

sanction par excellence of provincial criminal justice.”); see also S. Union Co. v. United States,

567 U.S. 343, 349 (2012) (“Fines were by far the most common form of noncapital punishment

in colonial America.”).

90. See B

ISHOP, supra note 84, § 626; 1 J.CHITTY,APRACTICAL TREATISE ON THE CRIMINAL

LAW 810 (London, A.J. Valpy, Tookes Court, Chancery Lane 1816); Emlyn, supra note 73, at

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 429

They were also available punishments in felony cases—in particu-

lar, the partial or full forfeiture of estate discussed above,

or as

part of lesser punishments for people convicted of a felony for the

first time whose executions were excused by benefit of clergy.

Yet,

treatises and scholarly works regarding practices related to both

criminal and evidentiary law in the seventeenth, eighteenth, and

nineteenth centuries primarily focus on treason, felony offenses, and

the punishments they more often carried, including execution or

transportation (a form of banishment).

Similarly, many treatises

and scholarly interventions regarding historical practices focus

heavily on descriptions of the substantive criminal law or on pre-

trial and trial (but not sentencing) practices and burdens.

Further,

not only have many records been lost to time, those that have

survived often contain little information about procedure.

While

these materials provide some insight related to burdens of proof

generally, they are not specific to the question at hand.

The record may also be incomplete due to changes in litigation

strategy and expectations of the judiciary with respect to addressing

xxxv; STEPHEN, supra note 84, at 490.

91. See supra notes 84-87 and accompanying text.

92. Benefit of clergy was a widespread practice, the scope and availability of which varied

over time, but which allowed a reduction in punishment for people convicted for the first time

thus leaving it to judges to rely on other forms of punishment, including fines, for clergiable

offenses. See B

ISHOP, supra note 84, §§ 622-23; CHITTY, supra note 90, at 711; STEPHEN, supra

note 84, at 458, 462-66.

93. See B

ISHOP, supra note 84, §§ 622, 641; CHITTY, supra note 90, at 701-05; LAWRENCE

M. FRIEDMAN,AHISTORY OF AMERICAN LAW 265, 275, 561, 576 (4th ed. 2019); STEPHEN, supra

note 84, at 458, 482; see also John H. Langbein, The Criminal Trial Before the Lawyers, 45 U.

HI.L.REV. 263, 266 (1978) (“Treason was also unique in being subject to express standards

of proof, on account of a succession of statutes that mostly required two witnesses.”).

94. See, e.g., B

ISHOP, supra note 84, §§ 212, 318, 355-56; CHITTY, supra note 90, at 129,

186, 224. See generally 3 B

LACKSTONE, supra note 84; JAMES BRADLEY THAYER,APRE-

LIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW (Boston, Little, Brown and Co. 1898);

RANCIS WHARTON,ATREATISE ON THE CRIMINAL LAW OF THE UNITED STATES (Philadelphia,

Kay & Brother, 7th & rev. ed. 1874); J

OHN HENRY WIGMORE,ATREATISE ON THE SYSTEM OF

EVIDENCE IN TRIALS AT COMMON LAW (1904); J. M. Beattie, Scales of Justice: Defense Counsel

and the English Criminal Trial in the Eighteenth and Nineteenth Centuries, 9 L. & H

IST.REV.

221, 248 (1991); Anthony A. Morano, A Reexamination of the Development of the Reasonable

Doubt Rule, 55 B.U.

L. R

EV. 507 (1975) (arguing that the beyond the reasonable doubt stan-

dard is lower than the standard applied prior to 1700); B

ARBARA J. SHAPIRO,“BEYOND

REASONABLE DOUBT” AND “PROBABLE CAUSE”: HISTORICAL PERSPECTIVES ON THE ANGLO-

MERICAN LAW OF EVIDENCE (1991) (focusing on felonies and pre-trial and trial proceedings).

95. G

OEBEL &NAUGHTON, supra note 80, at 723-24 (discussing how available records were

“usually silent” about the procedures used to collect fines).

430 WILLIAM & MARY LAW REVIEW [Vol. 63:407

claims and documenting judicial analyses. For example, many early

American excessive fines challenges were raised facially, and so

necessarily would not involve the assignment of burdens for as-

sessing excessiveness in an as-applied setting.

Further, in many

available cases, excessive fines challenges were raised but not ad-

dressed,

were not reached due to an insufficient record of the evi-

dence upon which the conviction stood,

contained no meaningful

analysis,

or did not state explicitly what burdens of proof were

employed.

100

In addition to accounting for potential distortions and gaps in the

record, any reliance on history must be measured realistically, keep-

ing in mind that no single understanding on any particular point

may have ever existed. As Bernadette Meyler has written, a proper

examination of the historical record will reveal a “disunified field”

of evidence—in other words, that common law practices were seldom

uniform and shifted over time and so may point in different di-

rections with respect to a given question.

101

That, of course,

96. See, e.g., Baldwin v. State, 75 Ga. 482, 485 (1885); State v. Cannady, 78 N.C. 539, 544

(1878); March v. State, 35 Tex. 115, 116 (1871); State v. Davidson, 44 Mo. App. 513, 519

(1891). As is the case today, facial challenges are a uniquely tough row for defendants to hoe.

Compare United States v. Salerno, 481 U.S. 739, 745 (1987) (rejecting a facial challenge to the

federal Bail Reform Act and noting that “respondents have failed to shoulder their heavy bur-

den”), with, e.g., In re MacDonald, 33 P. 18, 21 (Wyo. 1893) (“in order to declare the law

unconstitutional,” the court must find “that the punishment provided by the law is so dis-

proportionate to the offense as to shock the moral sense of the people.”). One excessive fines

challenge decided at the close of the nineteenth century even stated that defendants must

show facial unconstitutionality beyond a reasonable doubt. State v. Lubee, 45 A. 520, 521 (Me.

1899). In many of these cases, however, the early appellate courts emphasized that even if fa-

cially valid, sentencing judges were mandated to ensure that fines fell within constitutional

limits as applied. See, e.g., infra note 239.

97. See, e.g., Tilley v. Savannah, Fla. & W. R.R. Co., 5 F. 641, 650, 659-60 (C.C.S.D. Ga.

1881); Prentice v. Weston, 118 N.E. 720, 721-22 (N.Y. 1888); Burger v. State, 26 S.C.L. (1

McMul.) 410, 418 (Ct. App. 1841).

98. See State v. Sheppard, 32 S.E. 146, 146-47 (S.C. 1899); Blydenburgh v. Miles, 39 Conn.

484, 496 (1872); Wingfield v. Commonwealth, 1 Ky. Op. 585, 585-86 (Ct. App. 1867).

99. See, e.g., In re Stone, 41 A. 658, 658 (R.I. 1898) (per curiam) (stating only that the fine

imposed was “not so clearly excessive” as to be unconstitutional); Ex parte Keeler, 23 S.E. 865,

668 (S.C. 1896) (“In our opinion, the fine imposed on the defendant was not excessive.”); State

v. Huff, 40 N.W. 720, 722 (Iowa 1888) (“It is claimed that the punishment is excessive. We do

not so regard it.”); Bradshaw v. State, 50 S.W. 359, 360 (Tex. Crim. App. 1899) (“We do not

think the verdict of the jury is at all excessive.”).

100. See, e.g., State v. Price, 39 N.W. 291, 293 (Iowa 1888).

101. Bernadette Meyler, Towards a Common Law Originalism, 59 S

TAN.L.REV. 551, 556-

58, 569 (2006).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 431

undermines the idea that history can provide determinative an-

swers to the type of precise questions often raised in constitutional

litigation, including what party carried the burdens of proof in the

excessive fines context.

Again, the historical record as it relates to excessive fines claims

provides examples of this form of limitation. The record is in discord

as to judicial discretion to impose fines, with some records indicat-

ing that even if lawmakers were to set a mandatory fine in statute,

judges had the authority to remit it if it were constitutionally ex-

cessive, whereas other sources suggest that judges had no such

discretion, pushing the question of remission to pardons and related

processes.

102

As another example, an accounting of practices in

colonial New York indicates that judges within the same system

took varying approaches to the imposition and collection of fines.

103

These inconsistencies warrant caution when relying upon early

procedures to establish fundamental fairness in today’s system.

In sum, history may prove useful if it tells us something about

governmental or private interests or how the risk that a particular

assignment of burdens or other procedural rule would increase the

likelihood of an erroneous determination so long as we are honest

about its limitations. We can do so by recognizing the ways in which

governmental self-interest may distort the record, by acknowledging

where the record is incomplete, and by identifying anachronisms.

We might think of this approach as a question of weight rather than

admissibility. Where the historical record is suspect, silent, or in-

consistent, it should be afforded little weight, leaving contemporary

considerations of fundamental fairness to take center stage.

104

the historical evidence becomes more reliable, clearer, and more

targeted to the question at hand, it can play a larger role, working

in conjunction with modern considerations to ascertain the best

path forward.

105

In other words, the Mathews-Medina conundrum can be recon-

ciled by allowing history to serve as a partner, rather than a gate-

keeper, to contemporary understandings of fundamental fairness.

102. See infra notes 237-41, 248-53 and accompanying text.

103. G

OEBEL &NAUGHTON, supra note 80, at 724-25.

104. See, e.g., infra Part II.B.

105. See, e.g., infra Part II.C-D.

432 WILLIAM & MARY LAW REVIEW [Vol. 63:407

The reconciliation proposed here would use the Mathews three-part

test as a frame for assessing the fundamental fairness of a criminal

procedure: (1) will the assignment of burdens significantly interfere

with an important government function, (2) what risks does a

person face if the determination is wrong, and (3) how do burdens

of proof affect the decision maker’s ability to reach a proper

conclusion?

106

Within that analysis, history may prove useful, to the

extent it provides insight into how those same concerns were

ameliorated—or not—through criminal processes used across time.

With that approach in mind, we turn now to the assignment of

burdens to the questions of financial effect and disproportionality in

the excessive fines realm.

II.

HE ASSIGNMENT OF BURDENS

“Burden of proof ”—singular—is a misnomer. What follows iden-

tifies and analyzes four separate assignments encompassed within

the phrase

107

: the burden to raise the claim; the burden of producing

evidence relevant to the claim; the burden of persuasion, which is

really the “risk of nonpersuasion” on the issue

108

; and the standard

of proof, which serves “to instruct the factfinder concerning the de-

gree of confidence our society thinks he should have in the correct-

ness of factual conclusions for a particular type of adjudication.”

109

Standards of proof include, for example, the beyond a reasonable

doubt standard for establishing guilt in a criminal case, and the

clear and convincing or preponderance of the evidence standards in

many other settings.

110

As detailed above, the framework for assessing the assignment of

burdens employed in this Article is taken from the Mathews test,

which looks to three indicators of fundamental fairness: the manner

106. See supra note 34 and accompanying text.

107. Other scholars have broken the concept of burden into three parts (the burdens of

production and persuasion, and the standard of persuasion). See, e.g., Lawrence B. Solum, You

Prove It! Why Should I?, 17 H

ARV. J.L. & PUB.POL’Y 691, 691-92 (1994). As detailed further

below, it is necessary to also break out the burden of raising the claim in order to capture the

way in which lawmakers can design systems that enhance the possibility of governmental

abuse. See infra Part II.B.

108. Solum, supra note 107, at 691-92.

109. In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring).

110. Addington v. Texas, 441 U.S. 418, 423 (1979).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 433

in which the assignment will affect governmental interests, the

private interests at stake, and the risk of an erroneous determina-

tion—in this case both the determination of financial effect and the

ultimate assessment of disproportionality.

111

Here, the governmen-

tal and private interests apply across each of the four burden types,

so they are set forth at the start. For the third factor—the risk of an

erroneous determination—the four iterations of the burden of proof

are considered in turn, examining both contemporary indicators of

fundamental fairness and historical evidence, subject to the limi-

tations noted above, and concluding with a proposed assignment for

each burden. In doing so, I distinguish between the preliminary

question of financial effect and the ultimate question of dispropor-

tionality, criminal and civil settings, and differences between eco-

nomic sanction type, where necessary.

A. Interests at Stake in Assigning Burdens

The following details the governmental and private interests at

stake when assigning burdens in relation to Excessive Fines Clause

claims.

1. Governmental Interests

The Court has recognized that “[t]he State, of course, has a fun-

damental interest in appropriately punishing persons—rich and

poor—who violate its criminal laws.”

112

Because the Excessive Fines

Clause applies to both criminal and civil economic sanctions,

113

this

analysis necessarily also captures offenses that are generally

understood to constitute minimal wrongdoing for which the gov-

ernment has a reduced interest,

114

such as low-level public order

111. See supra Part I.A.

112. Bearden v. Georgia, 461 U.S. 660, 669 (1983).

113. See supra note 36 and accompanying text.

114. Cf. Welsh v. Wisconsin, 466 U.S. 740, 754 (1984) (declining to apply the exigency

exception to the Fourth Amendment’s warrant requirement in a case involving the nighttime

entry into a home to arrest a person for intoxicated driving in part because Wisconsin’s

lawmakers had “chosen to classify the first offense for driving while intoxicated as a

noncriminal, civil forfeiture for which no imprisonment is possible”).

434 WILLIAM & MARY LAW REVIEW [Vol. 63:407

violations, minor traffic offenses, and parking violations.

115

In both

criminal and civil settings, the State’s interest in punishing people

for any given behavior is, of course, contestable.

116

But for purposes

of this analysis, I assume the government has a legitimate interest

in responding to at least some behaviors in both spheres.

This interest in imposing appropriate punishment for wrong-

doing, however, must be contextualized within the long history of

governmental abuse of its prosecutorial power to generate revenue

through economic sanctions as a means of tax-avoidance primarily

borne by the politically vulnerable. As detailed above, these abuses

have been repeated over centuries,

117

and there is good reason to

believe that they continue today. Modern lawmakers have long

budgeted in revenues from law enforcement to address budgetary

gaps.

118

Further, over the years lawmakers have increased both the

severity and types of economic sanctions imposed

119

and in many

jurisdictions have pressured law enforcement to engage in policing

115. See, e.g., Pimentel v. City of Los Angeles, 974 F.3d 917, 922-24 (9th Cir. 2020) (holding

that the Excessive Fines Clause applies to parking tickets and that, while parking laws are

intended to decrease traffic congestion, the violation itself is minor).

116. This contestation occurs on three planes. One focuses on the nature of the response,

challenging the idea that the government has a legitimate interest in imposing punishment,

as opposed to other mechanisms of accountability. See generally, e.g., D

ANIELLE SERED,UNTIL

WE RECKON:VIOLENCE,MASS INCARCERATION, AND A ROAD TO REPAIR (2019) (regarding

restorative justice practices). The second focuses on the legitimacy of treating particular

behaviors as a form of wrongdoing. See, e.g., Monica Bell, Stephanie Garlock & Alexander

Nabavi-Noori, Toward a Demosprudence of Poverty, 69 D

UKE L.J. 1473, 1480-96 (2020)

(regarding various forms of criminalization of poverty). The third questions whether the

public safety benefits of enforcement are insufficient to justify the continuation of systems

that are inextricably intertwined with racial subordination. See generally Brendan D.

Roediger, Abolish Municipal Courts: A Response to Professor Natapoff, 134 H

ARV.L.REV.F.

213 (2021).

117. See supra notes 67-87 and accompanying text.

118. See, e.g., Thomas A. Garret & Gary A. Wagner, Red Ink in the Rearview Mirror: Local

Fiscal Conditions and the Issuance of Traffic Tickets, 52 J.

L. & E

CON. 71, 72 (2009) (regarding

such practices in Houston, Nashville, and Washington, D.C.).

119. See, e.g., Karin D. Martin, Monetary Myopia: An Examination of Institutional Re-

sponse to Revenue from Monetary Sanctions for Misdemeanors, 29 C

RIM.JUST.POL’Y REV. 630,

636-41 (2018); C

AL.LEGIS.ANALYST’S OFF., THE 2017-18 BUDGET:GOVERNOR’S CRIMINAL FINE

AND

FEE PROPOSALS 8-10 (Mar. 3, 2017), https://lao.ca.gov/reports/2017/ 3600/Criminal-Fine-

Fee-030317.pdf [https://perma.cc/BUQ9-TG7G]; M

ARCUS NIETO,CAL.RSCH.BUREAU,WHO

PAYS FOR PENALTY PROGRAMS IN CALIFORNIA? 4-5 (Feb. 2006), https://digitalcommons.law

.ggu.edu/cgi/viewcontent.cgi?article=1306&context=caldocs_agencies [https://perma.cc/5NZB-

2HL4].

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 435

that results in the imposition of economic sanctions.

120

Particularly

in jurisdictions in which opportunities to tax are restricted

121

or that

are experiencing periods of fiscal distress,

122

lawmakers have come

to rely on such revenues to fund a wide variety of public projects.

Those uses may include the operation of courts, law enforcement,

prosecution, indigent defense, probation, and incarceration, as well

as any manner of public service unrelated to legal systems.

123

While

a lack of transparency and data collection problems make exact

figures difficult to ascertain, it is clear that local, state, and federal

governments take in billions of dollars annually in revenue from

fines, fees, and forfeitures.

124

Further, as has been the case historically,

125

law enforcement

practices that generate revenue—including even low-level traffic

126

and parking offenses

127

—are often targeted at politically vulnerable

communities, and particularly heavily policed communities of color.

Recent studies have shown that the percentage of municipal bud-

gets derived from fines and fees increases with the percentage of

people in the community who are Black and Latinx.

128

Similarly,

120. See, e.g., Beth A. Colgan, Revenue, Race, and the Limitations of Traffic Enforcement

Reform (forthcoming); Jordan Blair Woods, Traffic Without the Police, 73 S

TAN.L.REV. 1471,

1514-15 (2021).

121. See, e.g., Patrick Liu, Ryan Nunn & Jay Shambaugh, Nine Facts About Monetary

Sanctions in the Criminal Justice System, B

ROOKINGS INST. 1, 6-9 (Mar. 2019), https://www.

brookings.edu/wp-content/uploads/2019/03/BailFacts_20190314.pdf [https://perma.cc/W7FR-

8KFH]; U.S.

OMM’N ON CIV.RIGHTS,TARGETED FINES AND FEES AGAINST LOW-INCOME

COMMUNITIES OF COLOR:CIVIL RIGHTS AND CONSTITUTIONAL IMPLICATIONS 9 (2017), https://

www.usccr.gov/pubs/2017/Statutory_Enforcement_ Report2017.pdf [https://perma.cc/A75L-

F4LN].

122. See, e.g., Akheil Singla, Charlotte Kirschner & Samuel B. Stone, Race, Representation,

and Revenue: Reliance on Fines and Forfeitures in City Governments, 56 U

RB.AFFS.REV.

1132, 1133 (2020) (using U.S. Census Bureau Census of Governments data to show an in-

crease in average reliance on economic sanctions for municipal revenues as the housing mar-

ket began to burst in 2006 and further increases by 2012).

123. See, e.g., Beth A. Colgan, Beyond Graduation: Economic Sanctions and Structural

Reform, 69 D

UKE L.J. 1529, 1539-41 (2020).

124. See id.

125. See supra notes 71-83 and accompanying text.

126. See, e.g., Colgan, supra note 120 (collecting studies regarding racial discrimination in

traffic enforcement); Woods, supra note 120, at 1475-76.

127. Noli Brazil, The Unequal Spatial Distribution of City Government Fines: The Case of

Parking Tickets in Los Angeles, 56 U

RB.AFFS.REV. 823, 824 (2018) (finding that parking

ticket rates were higher in Black communities).

128. See, e.g., Michael W. Sances & Hye Young You, Who Pays for Government? Descriptive

Representation and Exploitative Revenue Sources, 79 J.

OL. 1090, 1090-92 (2017) (assessing

436 WILLIAM & MARY LAW REVIEW [Vol. 63:407

reviews of forfeiture practices also show disparate enforcement

against Black and Latinx people.

129

And while a sufficiently serious

fiscal downturn may moderate racially disproportionate enforce-

ment—a study of traffic ticketing practices in Missouri found that

a decrease in governmental revenue resulted in increased citation

rates of white motorists

130

—at a minimum these studies raise

questions about the validity of any claimed governmental interest

in imposing financial punishments.

Setting aside, for the moment, these historical and contemporary

practices, when assessing the validity of the government’s interests

we might look to the Court’s approval of either utilitarian or re-

tributive justifications for punishment in the Eighth Amendment

context.

131

Full investigation of whether economic sanctions—and

particularly those that are imposed in unmanageable amounts—

actually satisfy those aims is outside of the scope of this Article, but

it is important to note that even without the longstanding risks of

abuse noted above, the question is more complicated than it might

first appear. With respect to the utilitarian goal of deterrence, an

overly protective procedure may result in economic sanctions so low

that the deterrent effect, if any, is reduced. There is, however, mixed

data from nine thousand cities); Singla et al., supra note 122, at 1146-47, 1151 (analyzing a

stratified random sample of ninety-three California municipalities); Dan Kopf, The Fining of

Black America, P

RICEONOMICS (2016), https://priceonomics.com/the-fining-of-black-america/

[https://perma.cc/B48H-4CA8] (comparing the 50 municipalities with the highest proportion

of municipal budgets from economic sanctions against all 4,600 municipalities with

populations over 5,000 in the U.S. Census Survey of Local and State Finance and finding that

“[b]y far the largest difference between the median city and cities that receive substantial

revenues from fines is the size of the African American—and, to a lesser extent,

Hispanic—population”) (study tables available at U.S.

OMM’N ON CIV.RTS., supra note 121,

at 20-25).

129. See, e.g., Clifton Adcock, Most Police Seizures of Cash Come from Blacks, Hispanics,

KLA.WATCH (Oct. 28, 2019), https://oklahomawatch.org/2015/10/07/most-police-seizures-of-

cash-come-from-blacks-hispanics/ [https://perma.cc/3WUK-3RAM] (examining state-level

forfeitures in ten Oklahoma counties involving seizures of $5,000 or more and finding that 75

percent of cases involved forfeitures against people of color, with 38 percent of proceedings

initiated against Latinx people and 33 percent against Black people).

130. Allison P. Harris, Elliot Ash & Jeffrey Fagan, Fiscal Pressures and Discriminatory

Policing: Evidence from Traffic Stops in Missouri, 5 J.

ACE,ETHNICITY &POL. 1, 15-22 (2020).

131. See Harmelin v. Michigan, 501 U.S. 957, 999, 1003, 1008-09 (1991) (plurality) (opinion

of Kennedy, J.).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 437

evidence as to whether economic sanctions actually deter unlawful

acts and increasing evidence that unmanageable economic sanc-

tions motivate unlawful behavior,

132

so the government interest in

that respect is less than certain. Retributive interests would also

be undermined by economic sanctions that do not fully account for

the person’s culpability for the offense, though imposing sanctions

beyond a person’s desert would equally offend retributive aims.

133

And because economic sanctions implicate not only the financial

condition of the individual upon whom they are imposed, but also

innocent family members and loved ones who lose access to monies

used to pay down economic sanction debt and to forfeited cash or

property, the retributive aim of imposing punishment only on those

who deserve it is undermined.

134

But, again, assuming that utilitar-

ian and retributive goals would be properly satisfied in some cases,

fundamental fairness would not command an assignment of burdens

that would fully prevent the government from meeting those

aims.

135

132. Compare, e.g., Todd L. Cherry, Financial Penalties as an Alternative Criminal

Sanction: Evidence from Panel Data, 29 A

TL.ECON. J. 450, 451-52, 455 (2001) (finding that

fines had a general deterrent effect in four North Carolina counties when applied to seven

serious felonies), with Foster Cook, J

EFFERSON CNT’Y’S CMTY.CORR.PROGRAM, THE BURDEN

CRIMINAL JUSTICE DEBT IN ALABAMA:2014 PARTICIPANT SELF-REPORT SURVEY 11-12 (2014),

https://finesandfeesjusticecenter.org/articles/the-burden-of-criminal-justice-debt-in-alabama/

[https://perma.cc/8BRF-PTFR] (finding that 17 percent of survey respondents had committed

offenses such as drug sales, sex work, or property offenses in order to obtain money to pay

economic sanctions). See generally B

ETH A. COLGAN,BROOKINGS INST., ADDRESSING MODERN

DEBTOR’S PRISONS WITH GRADUATED ECONOMIC SANCTIONS THAT DEPEND ON ABILITY TO PAY

9-11 (2019) (discussing additional studies related to the deterrent effect of economic sanc-

tions).

133. For a discussion of how excessive economic sanctions offend retributive goals, see

Colgan, supra note 27, at 47-61 & n.257.

134. See C

OLGAN, supra note 132, at 9 (collecting studies documenting how innocent people

pay for economic sanction debt, with that burden falling particularly heavy on Black women);

see also Thomas B. Harvey & Janae Staicer, Policing in St. Louis: “I Feel Like a Runaway

Slave Sometimes,” in T

HE CAMBRIDGE HANDBOOK OF POLICING IN THE UNITED STATES 53

(Tamara Rice Lave & Eric J. Miller eds., 2019) (quoting Samantha Jenkins, who had been

incarcerated due to inability to pay traffic tickets until her family managed to make payment:

“It put my momma and sister in a bind.”).

135. Cf. Addington v. Texas, 441 U.S. 418, 429 (1979) (declining to require a beyond a

reasonable doubt standard for civil commitment proceedings in part because psychiatric

diagnoses are sufficiently uncertain that requiring such a standard would make it impossible

for the government to succeed in committing people with serious mental health needs).

438 WILLIAM & MARY LAW REVIEW [Vol. 63:407

In addition to its overall interest in responding to illegal behavior,

government officials have also expressed a specific utilitarian

interest in pursuing forfeitures.

136

There are two primary justifi-

cations for forfeitures. First, property may serve as an “instrumen-

tality” of an offense—essentially a tool used by the person to commit

a crime, such as a car driven to the location of a drug buy.

137

Second,

cash may be forfeited if it constitutes crime proceeds; so, too, may

property purchased in whole or in part with crime proceeds.

138

Proponents of the use of forfeiture posit that seizing property in-

strumental to committing a crime will deter offenses by making

them harder to commit, and that seizing crime proceeds will deter

offenses by making them less lucrative.

139

Again, the actual de-

terrent value of forfeiture practices is questionable overall

140

and

made more so by the use of civil forfeiture processes. In all but the

small handful of jurisdictions that have disallowed civil forfeiture,

141

these processes allow the government to forfeit cash or property

without obtaining a conviction—or even charging the owner—with

a criminal offense.

142

And while California and Florida require law

enforcement to prove a nexus exists between the seized items and

criminal activity beyond a reasonable doubt in at least some cir-

cumstances,

143

other states require only clear and convincing evi-

dence,

144

a preponderance of the evidence,

145

or even mere probable

cause,

146

before shifting the burden to the property owner to prove

their innocence. As a result, there is less certainty in the civil

136. See David J. Fried, Rationalizing Criminal Forfeiture, 79 J. CRIM.L.&CRIMINOLGY,

328, 368-69, 386 n.269 (1988) (discussing the potential deterrent effect of forfeiture).

137. See, e.g., Timbs v. Indiana, 139 S. Ct. 682, 686 (2019).

138. See, e.g., 18 U.S.C. §§ 982(a), 1963(a); 21 U.S.C. §§ 853(a), 881(a).

139. See United States v. Bajakajian, 524 U.S. 321, 351-52 (1998) (Kennedy, J., dissenting).

140. See, e.g., John Burnett, Sheriff Under Scrutiny Over Drug Money Spending, NPR

(June 18, 2008), https://www.npr.org/templates/story/story.php?storyId=91638378 [https://

perma.cc/G65Q-2U9Z] (quoting a drug task force officer who described cash forfeitures as

“chump change” for drug cartels).

141. See Nick Sibilla, Maine Becomes Fourth State to End Civil Forfeiture, I

NST. FOR JUST.

(July 13, 2021), https://ij.org/press-release/maine-becomes-fourth-state-to-end-civil-forfeiture/

[https://perma.cc/7QGY-YPYX].

142. See, e.g., 18 U.S.C. § 983.

143. C

AL.HEALTH &SAFETY CODE §§ 11488.4(h)(2)(i)(1)-(2) (West 2017); FLA.STAT.ANN.

§ 932.704(8) (2016).

144. See, e.g., A

RIZ.REV.STAT.ANN. § 13-4311(M) (2017); id. § 4312(H)(5)(a).

145. See, e.g., I

ND.CODE § 34-24-1-4(a) (2019).

146. See M

ASS.GEN.LAWS Ch. 94C, § 47(d) (2018).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 439

forfeiture context (as well as other settings in which guilt is de-

termined at less than a beyond a reasonable doubt standard) that

deterrable criminal activity has even occurred. Further, because in

many jurisdictions forfeiture statutes are written so broadly, the

nexus between the cash or property and an alleged offense can be

tenuous—for example, the forfeiture of an elderly couple’s home

after their adult son allegedly sold twenty dollars worth of mari-

juana from their front porch.

147

But assuming for these purposes

that forfeitures deter unlawful activity in at least some cases, if

procedures for ascertaining disproportionality are too strict, those

efforts at deterrence will be undermined.

The government’s interest in responding to crime also includes

the awarding of restitution to crime victims for the stated purpose

of making victims financially whole.

148

Yet, even this interest is

more complicated than it first appears. Victims’ need for financial

assistance following a crime can be great, particularly in light of the

fact that crime victims disproportionately come from low-income

communities of color, and so are unlikely to have access to savings

or community resources that may aid in their recovery.

149

That need,

however, is not fulfilled by the imposition of restitution awards upon

a person who has no meaningful ability to pay.

150

Hundreds of

billions of dollars in restitution arrears exist nationwide—awards

that the government often acknowledges are unlikely ever to be

paid.

151

Additionally, many crime victims report that responses that

147. Pa. Senate Judiciary Committee (Oct. 20, 2015) (testimony of Louis S. Rulli, Practice

Professor of Law and Director of Clinical Programs, University of Pennsylvania Law School)

at 3.

148. See Bearden v. Georgia, 461 U.S. 660, 670-71 (1983) (treating restitution as an

important interest but rejecting the argument that revocation of probation for nonpayment

of restitution satisfies that interest when imposed upon those who have no meaningful ability

to pay).

149. See A

LL. FOR SAFETY &JUST., CRIME SURVIVORS SPEAK:THE FIRST-EVER NATIONAL

SURVEY OF VICTIMS’VIEWS ON SAFETY AND JUSTICE 4 (2016), https://allianceforsafetyand

justice.org/crimesurvivorsspeak/ [https://perma.cc/7GLH-GX9C]; E

RIKA HARRELL,LYNN

LANGTON,MARCUS BERZOFSKY,LANCE COUZENS &HOPE SMILEY-MCDONALD,BUREAU OF JUST.

TAT., WCJ248384 HOUSEHOLD POVERTY AND NONFATAL VIOLENT VICTIMIZATION 2008-2012

2 (2014), https://www.bjs.gov/content/pub/pdf/hpnvv0812.pdf [https://perma.cc/LVV6-988P].

150. Cf. Bearden, 461 U.S. at 670 (“Revoking the probation of someone who through no

fault of his own is unable to make restitution will not make restitution suddenly forth-

coming.”).

151. See, e.g., U.S.

OV’T ACCOUNTABILITY OFF., GAO-18-203, FEDERAL CRIMINAL

RESTITUTION:MOST DEBT IS OUTSTANDING AND OVERSIGHT OF COLLECTIONS COULD BE

440 WILLIAM & MARY LAW REVIEW [Vol. 63:407

improve community safety are central to their recovery.

152

The im-

position of unmanageable restitution may conflict with that need,

as there is increasing evidence to suggest that such awards are

criminogenic.

153

Perhaps surprisingly, restitution is not so divorced from the risk

that lawmakers will abuse the government’s prosecutorial power to

generate revenue as it may seem. To be sure, restitution for non-

governmental victims does not increase governmental resources.

But given the frequency by which restitution goes unpaid, if law-

makers took making crime victims financially whole more seriously,

they would have to find ways to directly fund relief to a wider array

of victims, which would almost certainly require increased tax-

ation.

154

That appears unlikely. A recent study of the political

economies in play as the federal government took up whether to

increase crime victim compensation revealed that lawmakers re-

fused to do so if it would require an increase in government ex-

penditures, only agreeing to support financial relief for victims

when the proposal shifted to one in which compensation took on the

form of restitution made payable by the person convicted of the

offense.

155

Similarly, though lawmakers in all fifty states have

adopted systems for providing additional victim compensation, they

have both populated those funds with revenues from other types of

economic sanctions and narrowly defined eligibility for compensa-

tion in large part to ward off a need to supplement the funds with

tax revenue.

156

An additional governmental interest relevant to the assignment

of burdens in the excessive fines context is its interest in limiting

unnecessary administrative costs related to hearings to determine

IMPROVED 25-26 (2018), https://www.gao.gov/assets/690/689830.pdf [https://perma.cc/9R66-

79QR].

152. See S

ERED, supra note 116, at 29-30.

153. See supra note 132 and accompanying text.

154. See Shirin Sinnar & Beth A. Colgan, Revisiting Hate Crimes Enhancements in the

Shadow of Mass Incarceration, 95 N.Y.U.

L. R

EV.ONLINE 149, 157-62 (2020).

155. See Jeremy R. Levine & Kelly L. Russell, Crime Pays the Victim: Criminal Fines, the

State, and Victim Compensation Law, 1964-1984 3-4 (unpublished manuscript) (on file with

the author).

156. See Sinnar & Colgan, supra note 154, at 155-60; Levine & Russell, supra note 155, at

3-4.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 441

financial effect and overall excessiveness.

157

It is reasonable to

expect that an assignment that protects people from the imposition

of economic sanctions will result in an increase in the number of

hearings, particularly where the government’s use of economic

sanctions is aggressive—for example, high-dollar-value fines, the

imposition of numerous fees, or the forfeiture of cash or property

only tenuously related to an offense.

158

It is also reasonable to expect

an uptick in challenges when the government seeks to impose

economic sanctions against people with limited capacity to pay them

or absorb their loss.

159

But no matter the administrative costs, the government has no

valid interest in the strategic advantage a favorable assignment of

burdens would provide if it interferes with the full realization of the

Constitution’s protections

160

including those afforded to its citizens

through the Eighth Amendment.

161

That includes protection against

lawmakers succumbing to the temptation to pursue excessive eco-

nomic sanctions that outpace the government’s penal interests in

order to line governmental coffers at the expense of the politically

157. Cf. Cooper v. Oklahoma, 517 U.S. 348, 367 (1996) (considering “the State’s interest in

the efficient operation of its criminal justice system”).

158. See, e.g., infra note 216 (regarding high fines related to drug offenses); Pimentel v.

City of Los Angeles, 974 F.3d 917, 922-25 (9th Cir. 2020) (holding that a sixty-three dollar

base fine for a parking violation is not constitutionally excessive but remanding on the ques-

tion of whether a series of late payment fees are); Transcript of Oral Argument at 43-45,

Timbs v. Indiana, 139 S. Ct. 682 (2019) (No. 17-1091) (positing, by counsel for Indiana, that

the state could forfeit an automobile for the violation of a minor traffic offense); supra note

147 and accompanying text (regarding the limited nexus in certain cases).

159. See infra Part II.B.1.

160. See Ake v. Oklahoma, 470 U.S. 68, 79 (1985) (“The State’s interest in prevailing at

trial ... is necessarily tempered by its interest in the fair and accurate adjudication of criminal

cases” and therefore, “a State may not legitimately assert an interest in maintenance of a

strategic advantage over the defense, if the result of that advantage is to cast a pall on the

accuracy of the verdict obtained.”).

161. Weems v. United States, 217 U.S. 349, 381 (1910).

442 WILLIAM & MARY LAW REVIEW [Vol. 63:407

vulnerable.

162

The government’s interests are satisfied, then, by an

assignment of burdens that “exhibits a difference between unre-

strained power and that which is exercised under the spirit of

constitutional limitations formed to establish justice.”

163

Finally, the government has an interest in operating in a way

that protects its legitimacy by instilling confidence in the citizenry

that it is acting to secure community safety and well-being. The use

of economic sanctions disproportionate to the underlying offense

undercuts this interest in a variety of ways. When lawmakers value

revenue generation over public safety, law enforcement practices

can shift away from the protection of the community. One recent

study, for example, has shown that governmental dependence on

revenues from economic sanctions pushes law enforcement toward

the enforcement of offenses that result in their imposition and away

from solving violent and serious property crime.

164

Further, people

in heavily policed communities targeted for revenue-focused policing

become afraid of police involvement, learning not to call 911 out of

fear that they will become the subject of enforcement. For example,

when Samantha Jenkins called the police to her home to help her

during a domestic violence incident, the officers ran a warrants

check on her, found a warrant related to unpaid traffic tickets, and

arrested her on the spot.

165

The same department later declined to

arrest the perpetrator of a homicide in her neighborhood despite the

existence of multiple cooperative witnesses.

166

Isiah Kinloch called

police to his apartment after a man broke in and assaulted him.

167

162. See Timbs v. Indiana, 139 S. Ct. 682, 689 (2019) (quoting Harmelin v. Michigan, 501

U.S. 957, 979, n.9 (1991) (plurality) (opinion of Scalia, J.) (“For good reason, the protection

against excessive fines has been a constant shield throughout Anglo-American history ...

[e]ven absent a political motive, fines may be employed ‘in a measure out of accord with the

penal goals of retribution and deterrence,’ for ‘fines are a source of revenue.’”)).

163. Weems, 217 U.S. at 381.

164. Rebecca Goldstein, Michael W. Sances & Hye Young You, Exploitative Revenues, Law

Enforcement, and the Quality of Government Service, 56 U

RB.AFFS.REV. 5, 8, 17, 21-22 (2020)

(finding that a 1 percent increase in the portion of municipal budgets funded through

economic sanctions “is associated with a statistically and substantively significant 6.1

percentage point decrease in the violent crime clearance rate and 8.3 percentage point

decrease in the property crime clearance rate”).

165. Harvey & Staicer, supra note 134, at 44-45.

166. Id.

167. Anna Lee, Nathaniel Cary & Mike Ellis, TAKEN: How Police Departments Make

Millions by Seizing Property, G

REENVILLE NEWS (Apr. 22, 2020, 7:34 PM), https://www.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 443

While he was at the hospital being treated for a head wound, the

officers searched his apartment, taking $1,800 in cash he had

earned as a tattoo artist, claiming that it must have been crime

proceeds.

168

For those of limited means subject to cycles of enforce-

ment, sanctioning, and penalties for nonpayment, detailed next, the

message received is that system actors—lawmakers, judges, and law

enforcement—prize revenue and social control over public safety

and justice.

169

In other words, it is in the government’s interest to

get this right. Its legitimacy may be protected by an assignment of

burdens that makes successful excessive fines challenges more

likely.

2. Private Interests

There are also significant private interests at stake. In any case

in which an erroneous imposition of excessive economic sanctions

occurs, a person upon whom sanctions are imposed is deprived of

money or property without justification. But the risk is particularly

fraught for those with limited means to pay excessive fines, fees,

and restitution, or to absorb the loss wrought by an excessive for-

feiture—which is relevant both to questions of financial effect and

disproportionality.

170

With respect to unmanageable fines, fees, and restitution, the

deprivation of cash when payments are made can interfere with the

ability of people and their families to meet basic human needs,

including access to food, stable housing, childcare, and necessary

medical care.

171

This is true even when people manage to pay in full

immediately because the money used to pay off economic sanctions

is siphoned away from those basic needs.

172

When immediate

greenvilleonline.com/in-depth/news/taken/2019/01/27/civil-forfeiture-south-carolina-police-

property-seizures-taken-exclusive-investigation/2457838002/ [https://perma.cc/4BBS-JHEG].

168. Id.

169. See Colgan, supra note 27, at 58-61.

170. See supra notes 31-33 and accompanying text.

171. A

LA.APPLESEED CTR. FOR L. & JUST., UNDER PRESSURE:HOW FINES AND FEES HURT

PEOPLE,UNDERMINE PUBLIC SAFETY, AND DRIVE ALABAMA’S RACIAL WEALTH DIVIDE 4 (2018),

https://www.alabamaappleseed.org/underpressure/ [https://perma.cc/KLV8-7HY8] (click “Read

the Full Report”).

172. See, e.g., id. (finding that 82.9 percent of survey respondents reported having to skip

payments on basic necessities or child support in order to pay economic sanctions); Steven

444 WILLIAM & MARY LAW REVIEW [Vol. 63:407

payment in full is impossible, the ongoing debt can result in even

greater financial precarity, forcing people to subjugate their basic

needs and those of their families throughout the period of debt.

173

The financial consequences are so great that the Federal Reserve is

now including the financial impact of economic sanctions in its

Survey of Household Economics and Decisionmaking.

174

The financial precarity caused by debt from unpaid economic

sanctions is exacerbated when lawmakers employ highly punitive

responses to nonpayment.

175

In some cases, these practices restrict

access to employment, education, childcare, medical care, and the

like by literally preventing the person from getting there. These

practices include driver’s license revocations, vehicle impoundment

programs, and the use of arrest warrants.

176

For example, a study

of driver’s license revocation in New Jersey found that 42 percent of

those surveyed lost existing employment due to license suspension,

nearly half of whom were unable to find new employment; of those

Mello, Speed Trap or Poverty Trap? Fines, Fees, and Financial Wellbeing, FINES &FEES JUST.

TR. 1, 35-36 (Nov. 14, 2018), https://mello.github.io/files/jmp.pdf [https://perma.cc/Q3PL-

WXB9].

173. Colgan, supra note 27, at 58-60; Harvey & Stacier, supra note 134, at 49 (quoting

Meredith Walker) (“When it comes time to pay tickets and court fines, they supersede all

other things. Whatever medical bills you have, whatever. If the electric bill is due and that

court money is due, you gotta pay the court money and let your lights get cut off because

lights being cutoff, you’re still at your house. Court not being paid, you have a warrant.”); see

infra notes 176, 178-79 and accompanying text (regarding warrant practices).

174. B

D. OF GOVERNORS OF THE FED.RSRV.SYS., REPORT ON THE ECONOMIC WELL-BEING OF

U.S. HOUSEHOLDS IN 2019, FEATURING SUPPLEMENTAL DATA FROM APRIL 2020 1, 9-10 (May

2020), https://www.federalreserve.gov/publications/files/2019-report-economic-well-being-us-

households-202005.pdf [https://perma.cc/6PNS-MYXG].

175. These consequences of nonpayment are distinct from the array of “collateral con-

sequences” lawmakers have created that are imposed upon conviction of certain offenses. See

infra notes 272-74 and accompanying text.

176. See, e.g., William E. Crozier & Brandon L. Garrett, Driven to Failure: An Empirical

Analysis of Driver’s License Suspension in North Carolina, 69 D

UKE L.J. 1585, 1594-1602

(2020); Roediger, supra note 116, at 224 (regarding the persistent use of warrants in Missouri

municipal courts even after the Department of Justice investigation into Ferguson’s court

practices, including at rates that exceed an average of more than one warrant per household);

Elliott Ramos, Chicago Police Impound 250,000 Vehicles Since 2010. Here’s Why City Hall’s

Rethinking That, WBEZ

HICAGO (July 13, 2020), https://www.wbez.org/stories/chicago-police-

impounded-250000-vehicles-since-2010-heres-why-city-halls-rethinking-that/a085f94b-4a87-

437b-837a-d5b4501a9168 [https://perma.cc/8HCL-4BD3]. The Idaho Supreme Court has ruled

that the use of arrest warrants in response to nonpayment is unconstitutional. Beck v. Elmore

Cnty. Magistrate Ct., 489 P.3d 820 (Idaho 2021) (striking down the practice under the Fourth

and Fourteenth Amendments).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 445

who did, 88 percent had to take jobs with reduced pay.

177

Vehicle

impoundment quite literally results in the deprivation of a means

of transportation. And an arrest on a warrant for nonpayment not

only raises the immediate risk caused by the incarceration itself—

which may include dangerous and unsanitary conditions

178

—but

also, by cutting the person off from the outside world, it interrupts

one’s ability to meet their own and their families’ basic needs.

179

In addition to governmental responses to nonpayment that di-

rectly restrict the ability to meet basic needs, other practices create

further hurdles. For example, employers and landlords increasingly

rely on credit reports when considering candidates, and so the

destruction of credit that can result from ongoing debt impedes ac-

cess.

180

Barriers to access are even higher in jurisdictions in which

full payment is required in order to seal or expunge arrest and con-

viction records.

181

And the use of wage garnishment as a collection

method adds administrative obligations potential employers may

be reluctant to take on.

182

When people saddled with unmanageable economic sanctions lose

access to basic human needs, they do not bear those harms alone;

those conditions are shared by their families. Unmanageable eco-

nomic sanctions may result in family disunification, both upon

177. ALAN M. VOORHEES TRANSP.CTR, & N.J. MOTOR VEHICLE COMM’N,MOTOR VEHICLES

AFFORDABILITY AND FAIRNESS TASK FORCE:FINAL REPORT 38 (2006).

178. See, e.g., Harvey & Stacier, supra note 134, at 51-55 (describing conditions in jails in

St. Louis County, Missouri, as overcrowded, lacking necessary medical care, exposing people

to blood and feces smeared in cells, failing to provide clean and sufficient food and water and

basic hygiene items such as toothbrushes and menstrual supplies, and allowing sexual

harassment by corrections staff).

179. See, e.g., id. at 55 (interviewing Keilee Fant, who law enforcement arrested multiple

times on warrants for nonpayment, resulting in the loss of several jobs that may have allowed

her to move off of public assistance).

180. See, e.g., K

ATHERINE A. BECKETT,ALEXES M. HARRIS &HEATHER EVANS,WASH.STATE

MINORITY &JUST.COMM’N,THE ASSESSMENT AND CONSEQUENCES OF LEGAL FINANCIAL

OBLIGATIONS IN WASHINGTON STATE 43-44, 48 (Aug. 2008), https://finesandfeesjusticecenter.

org/articles/the-assessment-and-consequences-of-legal-financial-obligations-in-washington-

state/ [https://perma.cc/2F8S-VT57].

181. See, e.g., M

O.REV.STAT. § 610.140.5(3) (precluding eligibility for expungement unless

all fines and restitution are paid); see also Amy Kimpel, Paying for a Clean Record, 112 J.

RIM.L.&CRIMINOLOGY (forthcoming 2022) (on file with author).

182. Katherine Beckett & Alexes Harris, On Cash and Conviction: Monetary Sanctions as

Misguided Policy, 10 C

RIMINOLOGY &PUB.POL’Y 509, 518 (2011).

446 WILLIAM & MARY LAW REVIEW [Vol. 63:407

arrest for nonpayment

183

and when family members are forced to

separate in order to find piecemeal housing when rent becomes

infeasible.

184

These periods of separation can be deeply traumatic,

particularly to children who are unable to understand why it has

occurred.

185

Nicole Bolden, who had been arrested for nonpayment

of traffic tickets, explained:

When I got arrested, I was away from him for two and a half

weeks. He was one. He goes through withdrawals now. He

freaks out every time I get ready to leave. He always asks me

where I am going, am I coming back, no matter where I go. I

could just be going down to the grocery store, “Are you coming

back?”

186

An inability to complete payment may also, in some jurisdictions,

result in the extension or substitution of other forms of punishment.

That can include interest and collection costs that outpace the orig-

inal debt, making it difficult and at times impossible for people to

reach the principal amount.

187

It can also include prolonged terms

of probation and parole due to ongoing debt, keeping people who

cannot afford to pay in full under the thumb of the government for

longer periods of time than those who can.

188

Some jurisdictions

provide people with the option of accepting a jail term as a means

183. See, e.g., Harvey & Stacier, supra note 134, at 46-47; cf. Utah v. Strieff, 136 S. Ct.

2056, 2073 (2016) (Kagan, J., dissenting) (regarding the frequency by which arrest warrants

are issued in relation to outstanding debt on low-level traffic and ordinance violations);

Gerstein v. Pugh, 420 U.S. 103, 114 (1975) (explaining that confinement after arrest “may

imperil the suspect’s job, interrupt his source of income, and impair his family relationships”).

184. See Colgan, supra note 27, at 66-67.

185. Harvey & Stacier, supra note 134, at 46-47 (interviewing mothers arrested for non-

payment regarding their children’s confusion about their absence and fear that it will

reoccur).

186. Id. at 47.

187. See, e.g., L

AWS.’ COMM. FOR CIV.RTS., NOT JUST A FERGUSON PROBLEM:HOW TRAFFIC

COURTS DRIVE INEQUALITY IN CALIFORNIA 1, 15-19 (Apr. 13, 2015), https://lccrsf.org/wp-

content/uploads/Not-Just-a-Ferguson-Problem-How-Traffic-Courts-Drive-Inequality-in-

California-4.8.15.pdf [https://perma.cc/5K99-78MA]; Colgan, supra note 69, at 288-89.

188. See A

LA.APPLESEED CTR. FOR L. & JUST., supra note 171, at 4, 20; Beth A. Colgan,

Wealth-Based Penal Disenfranchisement, 72 V

AND.L.REV. 55, 77-80 (2019); Nathan Wong

Link, Paid Your Debt to Society?: Legal Financial Obligations and Their Effects on Former

Prisoners 144-47 (Aug. 2017) (Ph.D. dissertation, Temple University) (on file with Temple

University) [https://perma.cc/3WXC-XJMB].

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 447

of “working off” the debt; the fact that people take up that offer

despite the often dangerous conditions inside American jails shows

just how illusory such a choice is and how overwhelming the debt

can be.

189

Some jurisdictions will allow a substitution of labor

through community service for debt; that work is often outside the

scope of labor protections, can create childcare issues, takes up time

a person may otherwise use for paid employment, and displaces paid

labor in the community.

190

And in many jurisdictions, where people

are disenfranchised from the right to vote due to a conviction, the

inability to pay economic sanctions can preclude reenfranchisement,

denying people the opportunity for full civic participation.

191

These collections and enforcement practices can exacerbate the

degree of stigma associated with an offense, increasing the risk to

people who are unable to complete payment.

192

When considering

the fairness of an assignment of burdens, the Supreme Court has

drawn a distinction between civil processes resulting in a loss of

money or property and those that would result in more serious

deprivations, such as the termination of parental rights.

193

In doing

so, it has placed proceedings that would stigmatize a person or

family on the side of the equation demanding more protective

standards of proof.

194

While initially low-level violations may carry

189. NIETO, supra note 119, at 2; see supra notes 178-79 and accompanying text. Additional

research is needed to determine how often people opt-in to a jail term as a means of debt relief

because many jurisdictions do not track those figures. In response to one survey conducted

by the California Research Bureau, two counties reported that in fiscal year 2004-05, over a

thousand people chose jail over debt. N

IETO, supra note 119, at 26.

190. See L

UCERO HERRERA,TIA KOONSE,MELANIE SONSTENG-PERSON &NOAH ZATZ, UCLA

AB.CTR., WORK,PAY, OR GO TO JAIL:COURT-ORDERED COMMUNITY SERVICE IN LOS ANGELES

3-4 (Oct. 2019), https://www.labor.ucla.edu/wp-content/uploads/2019/10/UCLA_Community

ServiceReport_Final_1016.pdf [https://perma.cc/2KT9-FFSW].

191. See Colgan, supra note 188, at 58-60. For a survey of state laws on the relationship

between unpaid economic sanctions and disenfranchisement as of July 2020, see generally

ARGARET LOVE &DAVID SCHLUSSEL,WHO MUST PAY TO REGAIN THE VOTE? A 50-STATE

SURVEY,COLLATERAL CONSEQUENCES RESOURCE CENTER (July 2020).

192. See C

ALANDRA DAVIS,HOPE POL’Y INST., EXAMINING THE INTERSECTION BETWEEN

CRIMINAL JUSTICE AND FINANCIAL SERVICES IN THE DEEP SOUTH 3-5, 9-10 (Jan. 13, 2021),

http://hopepolicy.org/manage/wp-content/uploads/Criminal-Justice-Paper.pdf [https://perma.

cc/J52T-DHEU].

193. Santosky v. Kramer, 455 U.S. 745, 747-48 (1982).

194. Id. at 756-59 (noting that proceedings that threaten a “stigma” require greater pro-

tection); Addington v. Texas, 441 U.S. 418, 424 (1979) (explaining that civil cases involving

a loss of money or property do not create a risk “of having his reputation tarnished erro-

neously”).

448 WILLIAM & MARY LAW REVIEW [Vol. 63:407

little, if any, stigma, a low-level offense may become stigmatizing by

a jurisdiction’s collections and enforcement practices. For example,

the use of arrest warrants can result in public humiliation and the

indignity of jail booking procedures,

195

subjecting a person to a

greater degree of stigma for even those offenses that are not in-

herently stigmatizing in and of themselves.

196

Further, regardless

of offense level, the stigma associated with an offense may be ex-

tended when the inability to pay economic sanctions precludes

completion of probation or parole or prevents access to the ex-

pungement or sealing of records of arrest and conviction.

197

The use of forfeitures also carries significant risks for those who

are unable to absorb the shock of losing cash or property. Because

forfeitures are intended to deprive people of the instrumentalities

of an offense and crime proceeds, cash or property becomes eligible

for forfeiture due to its relationship to the offense; in most cases, its

dollar value is irrelevant to its forfeitability.

198

But that value is

highly relevant to those against whom excessive forfeitures would

be imposed. For example, the loss of a forfeited automobile may

mean that the person or his or her family may no longer have the

means to access employment and educational services; to reach

grocery stores, childcare, medical treatment, and the like; or to

satisfy other legal obligations, including attending probation and

parole meetings required as a separate component of punishment.

199

Similarly, the forfeiture of a family’s home causes displacement and

195. Utah v. Strieff, 136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting) (explaining

that upon arrest, jailers may “swab DNA from the inside of your mouth, and force you to

‘shower with a delousing agent’ while you ‘lift [your] tongue, hold out [your] arms, turn

around, and lift [your] genitals.’” (alterations in original) (quoting Florence v. Bd. of Chosen

Freeholders of Cnty. of Burlington, 132 S. Ct. 1510, 1514 (2012)).

196. See Michigan v. Summers, 452 U.S. 692, 702 (1981) (noting that arrests carry with

them “the indignity associated with a compelled visit to the police station”); Harvey & Stacier,

supra note 134, at 43 (quoting Kristine Hendrix, a woman arrested after she was unable to

pay traffic ticket debt) (“There’s a lot of shame that goes into that as a person when you’re

being arrested. Being arrested is traumatic, especially when you’re arrested for something

that’s just so petty. Failure to pay a ticket, so petty.”).

197. See supra notes 181, 188 and accompanying text.

198. See supra notes 29-30 and accompanying text. A few jurisdictions have adopted rules

that alter or limit the procedures for forfeiture eligibility depending on the dollar value of the

forfeiture. See, e.g., C

AL.HEALTH &SAFETY CODE § 11488.4(i) (applying different standards

of proof for proving forfeitability depending on the dollar value of the seized cash or property).

199. See Colgan & McLean, supra note 32, at 437-39.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 449

may also result in family disunification.

200

And a forfeiture can also

be both humiliating and stigmatizing, as it links the owner to some-

times serious criminal offenses even when no conviction results.

201

These risks are not borne evenly across society. The difficulties

caused by the loss of income, cash, or property resulting from eco-

nomic sanctions are exacerbated for people of color, people with

physical disabilities, people who have mental health issues or

chemical dependencies, and those who have been subjected to terms

of incarceration in light of preexisting structural barriers to

housing, employment, and more.

202

Further, as detailed above, en-

forcement practices that result in the imposition of economic sanc-

tions are often targeted at heavily policed communities of color.

203

These sanctions strip money from such communities—either di-

rectly through money spent to pay fines and fees, or indirectly by

the taking of real and personal property that may or may not ever

be replaced.

204

Those monies might otherwise have been spent in

support of local businesses, thus supporting taxes for services that

help communities flourish.

205

Instead, economic sanction revenues

are often used to fund the perpetuation of criminal legal systems

that both over-police those communities and leave them in peril

when law enforcement efforts are focused on revenues rather than

public safety.

206

But even when funds are used to support other pub-

lic services, such as education, inequalities may be exacerbated.

207

By redistributing the revenues generally, without consideration of

the community from which they were stripped, fines, fees, and for-

feitures serve as hidden regressive taxes other communities do not

200. Rulli, supra note 147, at 3-4.

201. See, e.g., Angela J. Davis, Race, Cops, & Traffic Stops, U.

IA.L.REV. 425, 438-40

(1997) (describing the detention of a Black family during a pretextual traffic stop for hours

in the early morning hours, while law enforcement forced them to stay out on the road in the

rain while a drug dog searched their vehicle); Colgan, supra note 120 (regarding the use of

pretextual traffic stops as a method of accruing forfeiture revenues).

202. See C

OLGAN, supra note 132, at 8-9.

203. See supra notes 125-30 and accompanying text.

204. See, e.g., Colgan & McLean, supra note 32, at 449.

205. Cf. M

ICHAEL LEACHMAN,MICHAEL MITCHELL,NICHOLAS JOHNSON &ERICA WILLIAMS,

DVANCING RACIAL EQUITY WITH STATE TAX POLICY 3 (Nov. 15, 2018) (explaining that remov-

ing barriers to success in communities of color benefits the economies of those communities).

206. See supra notes 164-69 and accompanying text.

207. See Colgan, supra note 123, at 1557-58.

450 WILLIAM & MARY LAW REVIEW [Vol. 63:407

bear.

208

For those communities, the ripple effects of excessive eco-

nomic sanctions include downstream consequences of nonpayment,

perhaps most pointedly with respect to ongoing voter disenfran-

chisement.

209

Studies show that disenfranchisement due to a crim-

inal conviction disproportionately diminishes voting rights in Black

communities both directly and by depressing voter participation

beyond those formally disenfranchised.

210

As a result, these com-

munities lose out on opportunities for fiscal prosperity and the civic

participation that would render them less politically vulnerable.

In sum, people against whom excessive economic sanctions are

imposed—particularly those in heavily-policed communities of col-

or—risk increased financial precarity that may interrupt their

ability to meet their own and their families’ basic needs. They may

be subjected to highly punitive responses to nonpayment such as

driver’s license suspensions, towing, and warrants for nonpayment

as well as additional economic sanctions and extensions of other

forms of punishment such as probation and parole. They are bur-

dened with the stigma that these practices bring, even when the

underlying offense is as minor as a traffic ticket. These sanctions

also create risks to these communities by prioritizing the enforce-

ment of minor offenses over public safety, by stripping funds needed

to support community resiliency, and by reducing the political power

of such communities through voter disenfranchisement. Each of

these risks is relevant to the assignment of burdens.

With both governmental and private interests in mind, we turn

next to an assessment of how the assignment of each of the four

burdens may reduce the risk of an erroneous determination.

B. Burden of Raising the Excessive Fines Claim

There is a common assumption that the party who would benefit

from a claim has the burden of raising it.

211

Here the assumption

208. See id.

209. See supra note 191 and accompanying text.

210. See, e.g., Melanie Bowers & Robert R. Preuhs, Collateral Consequences of a Collateral

Penalty: The Negative Effect of Felon Disenfranchisement Laws on the Political Participation

of Nonfelons, 90 S

OC.SCI. Q. 722, 738, 740 (2009) (finding that disenfranchisement “policies

tend to dampen the probability of voting” in Black communities).

211. See supra note 107 and accompanying text.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 451

would be that people against whom economic sanctions are imposed

have the burden of raising an excessive fines claim, full stop. But,

because in many circumstances the government has created systems

that make it unlikely that people will be aware of or have the ca-

pability of litigating excessive fines claims, the question is not so

straightforward. In addition to those contemporary considerations,

this Section provides limited historical evidence regarding this

burden before proposing a method of assigning burdens that ac-

counts for the governmental and private interests noted above and

the procedural risks that make erroneous determinations likely in

many cases.

1. Contemporary Considerations

Considerations of fundamental fairness include an examination

of whether a burden exacerbates or alleviates the risk that the de-

cisionmaker will reach an erroneous determination.

212

Relevant

considerations include whether the person seeking enforcement of

a right is afforded counsel,

213

and whether the procedure creates an

imbalance of power between the government and the party whose

right is in question.

214

The risk of an erroneous determination of financial effect and

overall excessiveness is heightened in cases in which there is a lack

of access to counsel to assist in raising an excessive fines challenge,

which is common in a significant percentage of cases involving

economic sanctions.

215

Economic sanctions are widely used in felony

cases

216

where the Sixth Amendment right to counsel is afforded,

217

212. See Addington v. Texas, 441 U.S. 418, 428 (1979).

213. See Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 516 (1990) (upholding a

parental notification statute placing the burden of proof on minors seeking abortions to prove,

by clear and convincing evidence, that the minor is sufficiently mature or that the medical

procedure is in the minor’s best interest, in part because “the minor is assisted in the court-

room by an attorney as well as a guardian ad litem”).

214. See Santosky v. Kramer, 455 U.S. 745, 763 (1982) (describing parental termination

proceedings: “The State’s ability to assemble its case almost inevitably dwarfs the parents’

ability to mount a defense.”); see also Akron Ctr., 497 U.S. at 504 (“[T]he bypass procedure

contemplates an ex parte proceeding at which no one opposes the minor’s testimony.”).

215. See Megan T. Stevenson & Sandra G. Mayson, The Scale of Misdemeanor Justice, 98

B.U.

L. R

EV. 731, 735-36 (2018).

216. Drug offenses, for example, often carry high fines and fees and are a key target for

forfeiture practices. See, e.g., W

ASH.REV.CODE ANN. § 69.50.401(A)(2) (2019) (setting fines

452 WILLIAM & MARY LAW REVIEW [Vol. 63:407

but the volume of misdemeanor, municipal, traffic, parking, and

civil forfeiture cases each year in the United States dwarfs the

felony caseload.

218

The Court has limited the Sixth Amendment

right to counsel in non-felony cases to those in which a term of

incarceration is actually imposed.

219

With few exceptions, lawmak-

ers choose not to provide access to counsel where a constitutional

right does not attach.

220

Legal services programs—which have insuf-

ficient funding to provide for the extensive needs of low-income

clients on other matters— rarely have capacity to take up these

“quasi-criminal” cases.

221

Left on their own, it is highly unlikely that

people subjected to economic sanctions would be aware of the

Clause’s existence, let alone the mechanism for determining pro-

portionality, the types of arguments related to the financial effect of

the sanctions on them or their families that may be in play, or how

to preserve or undertake an appeal of the excessiveness determi-

nation.

222

Without the “guiding hand of counsel,”

223

people are

effectively left outside of the Clause’s protective ambit.

between $2,000 and $100,000); id. §§ 69.50.430, .438 (adding additional fines between $1,000

and $500,000); id. § 69.50.505(I)(g) (regarding cash and property forfeitures related to drug

crimes).

217. Gideon v. Wainwright, 372 U.S. 335 (1963).

218. See, e.g., Stevenson & Mayson, supra note 215, at 737 (estimating annual misde-

meanor case filings at 13.2 million). Even with access to counsel in felony cases, there is often

a lack of attention to economic sanctions, likely due to power imbalances in plea bargaining

brought on by the threat of significant periods of incarceration. See Beth A. Colgan, Nor

Excessive Fines Imposed, in T

HE EIGHTH AMENDMENT AND ITS FUTURE IN A NEW AGE OF PUN-

ISHMENT 173-74 (Meghan J. Ryan & William Berry III, eds., 2020); see also infra notes 335-36

and accompanying text.

219. See Scott v. Illinois, 440 U.S. 367, 373-74 (1979) (holding that the Sixth Amendment

right to counsel does not apply to non-felony cases unless incarceration is ordered).

220. For example, the federal government provides counsel in civil forfeiture proceedings,

but only when the person is already represented by appointed counsel in a related criminal

case or if the property subject to forfeiture is the person’s primary residence. 18 U.S.C.

§ 983(b).

221. Rulli, supra note 147, at 2-3, 19. The University of Pennsylvania School of Law’s legal

clinic provides representation in civil forfeiture cases, but only has capacity to take on a

limited number of cases involving the forfeiture of homes. Id.

222. See Powell v. Alabama, 287 U.S. 45, 69 (1932) (explaining that without counsel, a

layperson would be ignorant of the claims available and how to marshal evidence); cf. Jenny

Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal

Courts, 45 U.C.

AVIS L. REV. 277, 337 (2011) (“[I]ndividuals who plead guilty in the fast-

paced, high-volume lower criminal courts may not even be aware of the right to appeal, or the

need to file a notice of appeal within a short time period after conviction.”).

223. Powell, 287 U.S. at 69.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 453

Additionally, the risk of an erroneous decision is heightened in

civil proceedings in which lawmakers have reduced the govern-

ment’s burden of proof for establishing wrongdoing. Because ex-

cessiveness is measured by gross disproportionality, in which

offense seriousness is weighed against punishment severity, a re-

duction in certainty as to the very existence of the offense or the

person’s culpability for it necessarily increases the risk that the

economic sanctions imposed will be disproportionate.

224

Yet, law-

makers have employed a reduced standard of proof in many low-

level traffic and public order cases.

225

Lawmakers have also often set

reduced standards of proof for establishing a nexus between

forfeited cash or property and alleged criminal activity.

226

The risk

of error is particularly great when a lack of access to counsel and a

reduced burden for establishing guilt are combined. The lack of

counsel at the guilt stage means that the person “may be put on

trial without a proper charge, and convicted upon incompetent

evidence, or evidence irrelevant to the issue or otherwise inadmissi-

ble.”

227

And with a lower standard of proof required, the certainty of

whether an offense occurred at all is further undermined. But in

any case, given the role that offense seriousness plays in the dis-

proportionality evaluation, the risk of an erroneous determination

goes up as the certainty of guilt drops.

Finally, civil forfeiture proceedings are designed in a manner that

results in a significant imbalance of power between the government

224. See supra notes 22-33 and accompanying text.

225. See, e.g., A

RIZ.R.PROC.CIV.TRAFFIC AND CIV.BOATING VIOLATION 17 (burden on the

state by a preponderance in traffic cases); W

IS.STAT. § 800.08(3) (2013) (“The standard of

proof for conviction of any person charged with violation of any municipal ordinance shall be

evidence that is clear, is satisfactory, and convinces the judge to a reasonable certainty.”).

Some states have retained a beyond a reasonable doubt standard in low-level cases. See, e.g.,

LA.STAT. § 318.14(6) (2020) (traffic cases). It is often unclear what standard is used in

processes that allow people to challenge parking violations, though the structure of such pro-

cesses effectively places the burden of proof on the person ticketed. See, e.g., City of Chicago,

Contesting Tickets In-Person (Parking, Red Light and Automated Speed Enforcement), https://

www.chicago.gov/city/en/depts/fin/supp_info/revenue/challenging_tickets/contesting_in_per

son.html [https://perma.cc/GZR9-8UE5] (listing affirmative defenses for parking violations).

Whether reductions in the burdens of proof on the issue of guilt in these proceedings comports

with due process is outside of the scope of this Article but worthy of further examination in

its own right.

226. See supra notes 143-46 and accompanying text.

227. Powell, 287 U.S. at 68-69.

454 WILLIAM & MARY LAW REVIEW [Vol. 63:407

and the person whose cash or property is forfeited and thereby may

effectively preclude excessive fines claims.

228

Lawmakers have often

designed civil forfeiture proceedings to be so complex that experi-

enced attorneys have difficulty parsing them.

229

Given the complex-

ity of the proceedings, the cost of representation often exceeds the

value of the cash or property to be forfeited, which disincentivizes

any challenge to the forfeiture, let alone an excessive fines chal-

lenge.

230

Adding to the expense, in many jurisdictions lawmakers

have mandated that a person seeking to challenge a forfeiture pay

bonds that may be in the hundreds or thousands of dollars and

therefore initiating proceedings within which an excessive fines

challenge might be raised could be cost prohibitive.

231

As Justice

Thomas recently explained, the resulting lack of oversight “has led

to egregious and well-chronicled abuses,” including that “forfeiture

operations frequently target the poor and other groups least able to

defend their interests in forfeiture proceedings.”

232

2. Historical Evidence

We turn now to the consideration of the very limited and mixed

historical record with respect to the assignment of the burden of

raising an excessive fines claim. While records exist that provide

more insight as to the other burdens, in this case, it should be

afforded little weight in the overall analysis.

A key problem with the historical record on this point relates to

possible anachronisms between historical and modern practices. It

was widely accepted that at common law, for any misdemeanor of-

fenses codified without setting a specific punishment and for fel-

onies in which the person convicted had been given the benefit of

228. See Sarah Stillman, Taken, NEW YORKER (Aug. 5, 2013), https://www.newyorker.com/

magazine/2013/08/12/taken [https://perma.cc/E38S-WZQZ].

229. See id.

230. See id.; Michael Sallah, Robert O’Harrow Jr., Steven Rich, & Gabe Silverman, Stop

and Seize: Aggressive Police Take Hundreds of Millions of Dollars from Motorists Not Charged

with Crimes, W

ASH.POST (Sept. 6, 2014), https://www.washingtonpost.com/sf/investigative/

2014/09/06/stop-and-seize [https://perma.cc/UV93-K3YZ].

231. See, e.g., H

AW.REV.STAT. § 712A-10(9) (higher of $2,500 or 10 percent of the property

value).

232. Leonard v. Texas, 137 S. Ct. 846, 848 (2017) (Thomas, J., statement respecting the

denial of certiorari).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 455

clergy, judges (and in some instances, juries)

233

had discretion to

impose sanctions constrained by Magna Carta and the Excessive

Fines Clause.

234

Less clear are the bounds of and processes for

judicial discretion where codified misdemeanors explicitly set out

the punishment to be imposed, including the amount of the fine or

233. The ability of juries to set fines was codified in some early American statutes, subject

to the same constitutional restrictions as judges. See, e.g., 1786 V

A.ACTS 41-42 (in an act for

“moderating amercements,” requiring fines to be set by a jury limited by the proportionality

and financial effect guarantees of Magna Carta); see also Kistler v. State, 54 Ind. 400, 404

(1876) (describing a statute giving juries the ability to set fines and other punishments, sub-

ject to the restrictions of the Eighth Amendment).

234. See B

ISHOP, supra note 84, § 940 (“[W]hen a statute forbids or commands an act of a

public nature, but is silent as to the punishment, the common law imposes, for disobedience,

fine and imprisonment.”); id. (noting that Connecticut courts have found that the fine must

be limited and that courts may not forfeit (all the defendant’s “property”)); id. § 941

(explaining that it was within judicial discretion to consider aggravating or mitigating facts

in determining whether to “make the punishment heavier or lighter”); 4 B

LACKSTONE, supra

note 84, at 371-73 (explaining that, consistent with Magna Carta and the English Bill of

Rights, judges had no authority to disregard the form of punishment established through

statute, but that “pecuniary fines neither can, nor ought to be, ascertained by any invariable

law” because “[t]he value of money itself changes from a thousand causes; and, at all events,

what is ruin to one man’s fortune, may be matter of indifference to another’s”); C

HITTY, supra

note 90, at 710 (“It may be laid down as a general rule, that all those offences which exist at

common law, and have not been regulated by any particular statute, are within the discretion

of the court to punish.”); id. at 711-17 (explaining that after the ceremonial branding of the

person’s hand to mark that the person had used their one opportunity for benefit of clergy,

punishments were left “to the wisdom of the court” subject to the restrictions of Magna Carta,

the English Bill of Rights, and the principles of proportionality); T

HOMAS COOLEY,ATREATISE

ON THE

CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE

STATES OF THE AMERICAN UNION 328 (Boston, Little, Brown and Co. 1868) (“Within such

bounds as may be prescribed by law, the question of what fine shall be imposed is one

addressed to the discretion of the court. But it is a discretion to be judicially exercised, and

it would be error in law to inflict a punishment clearly excessive.”); W.

DEN,PRINCIPLES OF

PENAL LAW 73 (3d ed. 1744-1776) (“It is the usage of the courts, superinduced on the clause

of Magna Charta relative to civil amercements, never to extend the fine of any criminal so far,

as to take from him the implements, and means of his profession, and livelihood; or to deprive

his family of their necessary support.”); see also Apprendi v. New Jersey, 530 U.S. 466, 480

n.7 (2000) (noting that English trial judges in the late eighteenth century had limited sen-

tencing discretion in felony cases beyond invoking the pardon process, but significantly more

discretion in misdemeanor cases in which fines were imposed); Jones v. United States, 526

U.S. 227, 244 (1999) (noting the “breadth of judicial discretion over fines and corporal pun-

ishment in less important, misdemeanor cases”); Williams v. New York, 337 U.S. 241, 246

(1949) (“[B]oth before and since the American colonies became a nation, courts in this country

and in England practiced a policy under which a sentencing judge could exercise a wide dis-

cretion in the sources and types of evidence used to assist him in determining the kind and

extent of punishment to be imposed within limits fixed by law.”).

456 WILLIAM & MARY LAW REVIEW [Vol. 63:407

forfeiture.

235

Some sources suggest that judges were constrained to

impose the statutory fine,

236

shifting the procedure for obtaining

relief to a pardon, a direction to the prosecutor to enter a nolle pro-

sequi,

237

or through administrative procedures overseen by other

entities, such as the Secretary of the Treasury.

238

In contrast, other

sources suggest that even where a statute set a specific penalty, jud-

ges were mandated to avoid imposing that penalty should it be

constitutionally excessive in light of the degree of the person’s cul-

pability for the offense and financial condition,

239

or even to remit

fines once imposed.

240

While the position that judges have authority

235. For examples of the codification of explicit punishments for misdemeanors, see

HITTY, supra note 90, at 706-07.

236. See id. at 707-08 (describing a punishment set out in statute and noting that

“therefore, the courts will regard themselves as bound to pronounce a judgment, embracing

all the punishments which those acts severally inflict”); id. at 809-10 (“[W]here a statute

specifies the sum to be forfeited, the court have (sic) no power to mitigate it after conviction.”).

237. B

ISHOP, supra note 84, § 708 (describing availability of pardon power to remit fines

and forfeitures, though noting limitations on the pardoning of costs); C

HITTY, supra note 90,

at 706-07, 763-64 (describing the availability of pardon or nolle prosequi at the Crown’s

direction).

238. C

HITTY, supra note 90, at 722, 810 (regarding requests for admission to be submitted

to the court of Exchequer or the lords of Treasury); see also infra notes 277-93 and ac-

companying text.

239. See, e.g., Louisville, H. & St. L. Ry. Co. v. Commonwealth, 46 S.W. 207, 208 (Ky. 1898)

(noting that the jury set the fine within the statutory range and “[h]ence we should not dis-

turb the judgment,” but also stating that “cases might arise in which this court would feel

bound, under [the state’s Excessive Fines Clause], to refuse its sanction to laws which im-

posed excessive fines”); S. Express Co. v. Commonwealth ex rel. Walker, 22 S.E. 809, 811 (Va.

1895) (rejecting the contention that the lack of a maximum fine renders a statute facially ex-

cessive because “if a jury were to impose such a fine, it is the province of the court, and would

be its duty, to set aside the verdict”); see also People v. Haug, 37 N.W. 21, 27-28 (Mich. 1888)

(relying on Magna Carta’s prohibition on “impair[ing] the capacity of gaining a business live-

lihood” in partially striking down a statute that, in addition to fines and possible impris-

onment, punished pharmacists who failed to keep required records of liquor sales with a

prohibition on engaging in the pharmacy business for two years).

240. See, e.g., A

RTHUR P. SCOTT,CRIMINAL LAW IN COLONIAL VIRGINIA 116 n.222 (1930)

(“There are examples, mostly in the seventeenth century, of county courts having remitted

fines which they had imposed.”).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 457

to determine that an economic sanction set out in statute is

constitutionally excessive has won out,

241

these procedural anach-

ronisms provide only a shaky historical foundation for the assign-

ment of burdens.

In addition to those anachronisms, the record is mixed as to

procedures involving the question of whether a fine was or was not

appropriate. As now, a presumption historically existed that the

party requesting the court to act in a particular way would have the

obligation of raising the claim.

242

But the idea of a moving party

with respect to the propriety of imposing economic sanctions does

not fit comfortably with historical sentencing processes, at least in

the bulk of cases in which judges had discretion as to the amount of

fine to impose.

243

There is some support for placing the obligation on

the defendant wishing to reduce a fine: scattered references to those

upon whom fines are imposed moving for a reduction,

244

and the

ability of judges to impose fines without the defendant being present

while requiring defendants to appear in court to present an

argument for mitigation.

245

There is also some evidence to support

241. United States v. Bajakajian, 524 U.S. 321, 324 (1998) (striking down a mandatory

forfeiture as excessive); 18 U.S.C. § 982(a)(1) (mandating that when a person is convicted of

a reporting offense, the court “shall order that the person forfeit to the United States any

property, real or personal, involved in such offense, or any property traceable to such prop-

erty”). The Court’s willingness to strike down economic sanctions despite the mandatory

nature of the statute at issue may separate the Excessive Fines and Cruel and Unusual Pun-

ishments Clauses. Though writing only for a plurality of three, in Harmelin v. Michigan,

Justice Kennedy opined that individualized sentencing was not mandated outside of the death

penalty context, and that “[p]rosecutorial discretion before sentence and executive or legis-

lative clemency afterwards provide means for the State to avert or correct unjust sentences.”

501 U.S. 957, 1007-08 (1991) (plurality) (opinion of Kennedy, J.).

242. W

IGMORE, supra note 94, at 3526 (“The party having the risk of non-persuasion ... is

naturally the one upon whom first falls this duty of going forward with evidence; because,

since he wishes to have the jury act for him, and since without any legal evidence at all they

could properly take no action, there is no need for the opponent to adduce evidence.”).

243. See supra notes 233-41 and accompanying text; see also C

HITTY, supra note 90, at 707-

08 (describing misdemeanors with fixed penalties and noting “the more usual course is to

proceed at common law, because prosecutions on the statute are attended with more difficulty,

and require more formal exactness”); id. at 711 (explaining that in addition to common law

misdemeanors and those codified without set sentences, the sentencing of clergiable felonies

also fell within the realm of judicial discretion).

244. See, e.g., T

HAYER, supra note 94, at 166 (describing a case from 1666 in which jurors

had been fined £5 each for returning an improper verdict, an amount reduced to forty shillings

“upon the petition of the jurors”).

245. B

AKER, supra note 86, at 698; see CHITTY, supra note 90, at 809-10; see also People v.

Taylor, 3 Denio 91, 91 n.a (N.Y. 1846) (citing Chitty for the proposition that the court could

458 WILLIAM & MARY LAW REVIEW [Vol. 63:407

placing the obligation on the prosecutor; in particular, there are ref-

erences to placing the obligation to address a fine’s propriety on the

prosecutor who initiated the sentencing proceeding.

246

Most likely

the truth is somewhere in the middle. It appears that the standard

procedure at sentencing was to allow the defendant to address the

court in mitigation and the prosecution in aggravation,

247

with nei-

ther operating in the modern sense of a moving party.

There is also competing evidence regarding the obligation to raise

a claim in cases in which judges were understood to have limited

discretion given statutory mandates, which pushed the question of

a sanction’s propriety to pardons or similar processes. On the one

hand, pleading requirements that required pardon requests to spe-

cifically set out the grounds for relief indicate that the person re-

questing the pardon had an obligation to raise arguments related to

excessiveness,

248

and other references in the historical record sug-

gest that the person or his or her family were typically obligated to

seek relief.

249

Further, at least during the reign of Henry VII, it

appears that the Crown regularly took bribes from people seeking

pardons, a troubling but useful indication that it was the person

seeking relief who initiated the process.

250

On the other hand,

impose a sentence on a defendant who was not present in court if the sentence involved only

a fine).

246. C

HITTY, supra note 90, at 181 (describing the prosecution as moving for aggravation).

It appears that in cases involving convictions of parishes for failing to keep highways in

working order, a different process was employed. It began with “the prosecutor, calling on the

defendants to show cause why a specific fine should not be imposed on them,” upon which the

defendants could “enlarge the rule, calling upon the trustees of the roads to show cause why

it should not be apportioned between themselves and the parishioners.” Id. at 690-91.

247. See State v. Reeder, 60 S.E. 434, 435 (S.C. 1908) (“The American cases lay down the

principle that, where it devolves upon the court to determine the punishment either upon the

finding or upon the plea of guilty, it is the correct practice for it to hear evidence in aggra-

vation or mitigation, as the case may be, where there is any discretion as to the punish-

ment.”); Kistler v. State, 54 Ind. 400, 408 (1876) (explaining that at common law, practices

allowed judges to consider aggravating and mitigating information in determining sentence

“when brought to its attention by the evidence”); A

RCHBOLD, supra note 84, at 180-1 & n.4

(“[T]he defendant may address the court in mitigation of punishment, as well as in arrest of

judgment.”); B

ISHOP, supra note 84, § 633 (“When, therefore, the court is to pronounce its

sentence, if the law leaves to it a discretion, it will look at any evidence produced that should

properly influence a judicious magistrate to make the punishment heavier or lighter.”).

248. See 4 B

LACKSTONE, supra note 84, at 390-95 (describing pardon processes).

249. See, e.g., C

HITTY, supra note 90, at 722 (noting that the defendant “may obtain a

remedy by petition to the lords commissioners of the Treasury.”).

250. See B

URN, supra note 74, at 32-33.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 459

judges—rather than the person who would be benefited by the

pardon—were allowed, and perhaps mandated, to begin the pardon

process in at least some cases,

251

and in some periods this appears

to have been the primary method.

252

Yet other records suggest that

other officials, such as local councils, could seek pardon on behalf of

a person within their community.

253

In short, given both the anachronisms and the mixed record, the

assignment of burdens should be grounded on contemporary indi-

cators of fundamental fairness rather than considerations of his-

torical practice.

3. Assignment

In undertaking an assignment of the burden of raising an

excessive fines claim, consideration must be given to the govern-

mental interests at stake, the corresponding private interests, and

the risk that the assignment will result in an erroneous imposition

of excessive fines.

254

The government has an interest in responding

to illegal behavior, removing from circulation the instrumentalities

and proceeds of crimes, providing financial support for crime

victims, and avoiding unnecessary administrative costs.

255

But it

also has an interest in the enforcement of the Excessive Fines

Clause and in preserving its own legitimacy through fair and just

proceedings.

256

By establishing procedures that increase the risk

that a person will be unaware of and incapable of raising excessive

fines challenges, the government both undermines its own interests

and creates significant risk that erroneous determinations of fi-

nancial effect and excessiveness will lead to the interruption of basic

needs, punishments for nonpayment, stigmatization, loss of civic

251. See 4 BLACKSTONE, supra note 84, at 394 (explaining that for parliamentary pardons

“a man is not bound to plead it, but the court must ex officio take notice of it”); Apprendi v.

New Jersey, 530 U.S. 466, 480 (2000) (noting that judges could begin the pardon process in

cases where the mandated sentence was inappropriate).

252. See B

AKER, supra note 86, at 590 (noting that judicial initiation of pardons was routine

by 1700); J.M.

EATTIE,CRIME AND THE COURTS IN ENGLAND: 1600-1800 431-32 (1986) (de-

scribing the procedure by which courts initiated pardon proceedings).

253. See S

COTT, supra note 240, at 202.

254. See supra notes 34, 106 and accompanying text.

255. See supra Part II.A.1.

256. See supra notes 160-69 and accompanying text.

460 WILLIAM & MARY LAW REVIEW [Vol. 63:407

participation, and the undermining of community well-being that

has plagued many of those subjected to economic sanctions.

257

The following proposed assignments recognize gradations in risk

in various types of proceedings. In cases in which a right to counsel

attaches and in which lawmakers have refrained from imposing

other procedural barriers to raising a claim, the obligation to raise

a claim could be assigned to the party against whom economic

sanctions would otherwise be imposed. In contrast, at least in cases

involving fines, fees, restitution, or criminal forfeitures for which

lawmakers have declined to provide counsel, that assignment would

only be appropriate if the government provides meaningful notice

of the availability of, and issues important to, excessive fines

claims.

258

Though the risk of governmental abuse is reduced in cases

in which restitution is paid to non-governmental victims, this notice

requirement should apply in the restitution context as well. The

government has an interest in the imposition of restitution awards,

but excessive restitution awards are more likely to be unmanage-

able and remain unpaid and may even undermine the desire many

victims have to live in safe and stable communities.

259

Unmanage-

able restitution also can result in long-term financial instability for

those upon whom restitution is imposed and their families.

260

Providing notice of potential claims while requiring people seeking

the protection of the Clause to ultimately raise those claims strikes

a proper balance. Regardless of the type of economic sanction at

257. See supra Part II.A.2.

258. For notice to be meaningful, it must be designed to account for the pressures inherent

to being called into court and lack of familiarity with legal systems and terminology so that

the legal issues at hand are accessible. See generally D. James Greiner, Dalié Jiménez & Lois

R. Lupica, Self-Help Reimagined, 92 I

ND. L.J. 1119, 1123-24 (2017). Self-help tools related to

ascertaining the financial effect of economic sanctions are becoming more common. See, e.g.,

Superior Court of California, County of San Francisco, Can’t Afford to Pay, https://www.

sfsuperiorcourt.org/divisions/traffic/cant-afford-pay [https://perma.cc/2GKZ-X97D]. For a dis-

cussion on the administrative and economic efficiencies that may be created by gathering

information related to financial effect, see Beth A. Colgan, Graduating Economic Sanctions

According to Ability to Pay, 103 I

OWA L. REV. 53, 69 (2017). For a discussion of the potential

negative consequences of ability-to-pay determinations that are too invasive and do not attend

to structural bias, see Theresa Zhen, (Color)Blind Reform: How Ability-to-Pay Determinations

Are Inadequate to Transform a Racialized System of Penal Debt, 43 N.Y.U.

EV.L.&SOC.

HANGE 175, 209 (2019).

259. See supra notes 148-56 and accompanying text.

260. See supra Part II.A.2.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 461

issue, to be meaningful, notice must include not only the existence

of the claim, but also the nature of the gross disproportionality test

and importance of financial effect to it, how to provide relevant

evidence, and how to appeal if the initial claim is unsuccessful.

261

In addition to the requirement to provide meaningful notice in

situations in which lawmakers fail to afford counsel, in civil settings

in which lawmakers have chosen to reduce the government’s burden

of proving wrongdoing below a beyond a reasonable doubt standard

the nature of the notice should be extended. For notice to be

meaningful, it would be necessary to ensure that the explanation of

the gross disproportionality tests include the importance of noting

the uncertainty on the offense-seriousness side of the scale, the

relevance of which is discussed below.

262

Finally, in circumstances in which lawmakers have developed

systems that make it highly unlikely that an excessive fines chal-

lenge would be made—such as civil forfeiture proceedings in many

jurisdictions—the government should carry the burden of initiating

the excessiveness inquiry. That assignment attends to the combin-

ation of a lack of counsel, reduced standards of proof, fiscal barriers

that make retention of counsel unlikely, and other procedures that

raise the risk of governmental abuse,

263

as well as the risk of fi-

nancial precarity caused by the loss of forfeited cash and property.

C. Burden of Production

When attending to the production of relevant evidence, the

Supreme Court has looked to both who has “superior access” to the

evidence and how burdens may be used to incentivize the parties to

provide such evidence.

264

As detailed below, these considerations,

261. Cf. North v. Russell, 427 U.S. 328, 335 (1976) (upholding the use of lay judges in

courts handling low-level offenses on the assumption that courts provide notice of the un-

conditional right to a trial de novo—essentially a form of appeal—and the time by which such

an appeal must be filed).

262. See infra notes 300-08 and accompanying text.

263. See supra notes 228-32 and accompanying text.

264. Medina v. California, 505 U.S. 437, 455 (1992) (O’Connor, J., concurring) (“In

determining whether the placement of the burden of proof is fundamentally unfair, relevant

considerations include: whether the government has superior access to evidence; [and]

whether the defendant is capable of aiding in the garnering and evaluation of evidence on the

matter to be proved.”); see also Cooper v. Oklahoma, 517 U.S. 348, 355 & n.6 (1996) (striking

462 WILLIAM & MARY LAW REVIEW [Vol. 63:407

along with helpful information in the historical record, support an

imposition of burdens of production designed to meet those aims.

1. Contemporary Considerations

Given that a key consideration within the excessiveness inquiry

is the financial effect of economic sanctions on the person upon

whom they are imposed, it would appear that the defendant would

have the greatest access to relevant information, including evidence

about their finances, dependents, and other debts.

265

If that were the

extent of information relevant to financial effect, it may make sense

to place the burden of production on this issue entirely on the

defendant.

But in reality, the government has superior access to much of the

information necessary to make such a determination. For example,

for people who are also sentenced to a term of incarceration, the

government has access to data regarding the likelihood of obtaining

employment within the jail or prison and what the limited wages for

that employment would be.

266

The government also has access to its

formulas for deducting economic sanctions arrears from such wages

and from any monies sent to the incarcerated debtor by family and

friends that would otherwise be available for the purchase of

hygiene items, food, educational services, and the like.

267

It is also

down the use of a clear and convincing evidence standard in proceedings to determine

competency to stand trial and noting that burdens may be used to incentivize a party to

“cooperate with the information-gathering process necessary to a reliable competency

determination”) (citing Medina, 505 U.S. at 455 (O’Connor, J., concurring)); Santosky v.

Kramer, 455 U.S. 745, 763 (1982) (regarding parental rights termination hearings in which

the state “enjoys full access to all public records concerning the family,” and that the relevant

witnesses would be state child protective service employees); Speiser v. Randall, 357 U.S. 513,

523-24 (1958) (explaining that considerations of fairness include which party has

“opportunities for knowledge” regarding the issue at hand) (quoting Morrison v. California,

291 U.S. 82, 88-89 (1934)); Com. Molasses Corp. v. N.Y. Tank Barge Corp., 314 U.S. 104, 111

(1941) (“Since the bailee in general is in a better position than the bailor to know the cause

of the loss and to show that it was one not involving the bailee’s liability, the law lays on him

the duty to come forward with the information available to him.”).

265. Cf. Stack v. Boyle, 342 U.S. 1, 3 (1951) (noting “petitioners submitted statements as

to their financial resources, family relationships, health, prior criminal records, and other

information” in requesting a reduction of bail).

266. See, e.g., C

AL.CODE REGS., tit. 15, § 3040(j) (2021).

267. Mary Fainsod Katzenstein & Maureen R. Waller, Taxing the Poor: Incarceration,

Poverty Governance, and the Seizure of Family Resources, 13 P

ERSPS. ON POL. 638, 642 (2015).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 463

the government that contracts with phone providers, often at ex-

orbitant rates, and sets policies related to expenses for other

services, such as medical co-pays—and so it holds relevant informa-

tion about the fiscal burdens of incarceration.

268

Similarly, if a

person is to be sentenced to a period of probation and parole, gov-

ernment actors often have authority to impose or waive supervision

fees, or other expenses including those for drug testing or manda-

tory treatment services, making evidence regarding the likely scope

of those fees uniquely within the government’s control.

269

And in any

case, because the government controls the collection of economic

sanctions, it is the government that has access to whether or not it

will impose collection costs, partial payment fees, and interest on

unpaid debt,

270

as well as whether it will engage in tax-intercepts,

wage garnishment, or other collection methods.

271

The government also has a unique ability to understand and

provide evidence related to the vast web of collateral consequences

of conviction it has devised that may impede a person’s ability to

pay debt from economic sanctions. Distinct from the downstream

consequences of nonpayment described above, such as driver’s li-

cense suspensions and vehicle impoundment,

272

lawmakers have

also formulated collateral consequences unrelated to payment and

268. Id. at 643.

269. See, e.g., Minn. Dep’t. of Corr., Supervision Fees—Field Services 201.013(D) (Dec. 20,

2016) (“The commissioner of corrections may waive payment of the fee if the commissioner

determines that the offender does not have the ability to pay the fee, the prospects for

payment are poor, or there are extenuating circumstances justifying waiver of the fee.”).

270. See supra note 187 and accompanying text. There are strong arguments that these

various types of fees are themselves “fines” within the scope of the Clause’s protections.

Colgan, supra note 120, at 36; Colgan, supra note 27, at 316-17. See generally Lauren-Brooke

Eisen, Paying for Your Time: How Charging Inmates Fees Behind Bars May Violate the Exces-

sive Fines Clause, B

RENNAN CTR. FOR JUST. (July 31, 2014), https://www.brennancenter.org/

our-work/research-reports/paying-your-time-how-charging-inmates-fees-behind-bars-may-

violate [https://perma.cc/Z6X7-SNC3]; City of Seattle v. Long, 493 P.3d 94, 109-10 (Aug. 12,

2021) (holding that towing and impound fees constitute fines).

271. See, e.g., C

OLO.OFF. OF THE STATE AUDITOR,VICTIM’S RESTITUTION:THE JUDICIAL

BRANCH &DEPARTMENT OF CORRECTIONS PERFORMANCE AUDIT 8-9, 23-25 (2014), https://

leg.colorado.gov/sites/default/files/documents/audits/2197p-victimsrestitutionapril2014.pdf

[https://perma.cc/C42U-E37G]; supra note 182 and accompanying text.

272. See supra notes 175-77 and accompanying text. Again, these practices may themselves

constitute fines for purposes of the Clause. Long, 493 P.3d at 109 (holding that vehicle im-

poundment is a fine).

464 WILLIAM & MARY LAW REVIEW [Vol. 63:407

which are imposed upon conviction.

273

These consequences are so

many and so diverse that even an incomplete inventory includes

nearly 45,000 such consequences nationwide, including, for ex-

ample, restrictions on occupational licensing and access to public

benefits that provide for basic human needs such as housing or food

assistance.

274

All of these practices—over which the government has

superior access—may have implications for the person’s ability to

pay economic sanctions and absorb the loss of forfeited cash or

property.

2. Historical Evidence

As with the burden to raise the claim, historical evidence related

to the burden of production is also limited, though it provides great-

er insight that should be accorded some weight in the overall analy-

sis. As detailed further below, the record supports the conclusion

that the assignment of the burden of production should account for

which party has unique access to relevant evidence.

The record shows that historically, both parties were afforded op-

portunities to provide evidence in support of their positions on the

appropriateness of economic sanctions.

275

If the prosecution wished

to convince the judge as to the proportionality of a higher sentence

or the defendant wished to provide evidence lessening his or her

culpability or establishing a meager financial condition, the parties

were required to supply affidavits or other evidence to those ends.

276

But there are also sources that indicate that the government had

an obligation to produce evidence that would tend to show an eco-

nomic sanction’s disproportionality. Records of forfeiture remissions

from the early Treasury Department is one such source, and Kevin

Arlyck’s exploration of such remissions undertaken between 1789

273. See National Inventory of Collateral Consequences of Conviction, NAT’L REENTRY RES.

TR., https://niccc.nationalreentryresourcecenter.org/ [https://perma.cc/T93A-QKYH].

274. Id.

275. See State v. Smith, 2 S.C.L. (2 Bay) 62, 62-63 (S.C. Ct. App. 1796).

276. See supra notes 242-47 and accompanying text; see also Smith, 2 S.C.L. (2 Bay) at 62-

63 (requiring evidence of extenuating circumstances to be submitted by affidavit to the court

for consideration after conviction and before sentencing); C

HITTY, supra note 90, at 691-93

(describing the exchange of affidavits by the defense and prosecution prior to the sentencing

hearing).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 465

and 1806 proves particularly useful.

277

In 1789, Congress passed a

series of customs laws establishing duties to be paid as well as a

broad array of reporting and processing requirements to be un-

dertaken by people bringing ships into U.S. ports.

278

Not only did

these statutes criminalize a wide range of behaviors, they also im-

posed strict liability for violations, rendering even inadvertent or

mistaken acts subject to punishment.

279

The penalties for such vio-

lations included the imposition of heavy fines as well as the for-

feiture of a ship’s contents, or even the vessels themselves.

280

And,

like modern fines and forfeitures, these practices served to generate

revenue for the U.S. fisc, and also further incentivized customs in-

vestigations by allowing customs officers and informants to retain

a portion of the forfeiture proceeds.

281

These early customs practices soon became the subject of con-

cern and reform. By January 1790, Treasury Secretary Alexander

Hamilton reported to Congress that he had observed situations “in

which considerable forfeitures have been incurred, manifestly

through inadvertence and want of information.”

282

Because the

breadth of the laws and the lack of a mens rea requirement gave the

government the ability to routinely impose fines and forfeitures

from which to generate revenue, Secretary Hamilton believed that

possibly unjust forfeitures could not “fail to attend the recent

promulgation of laws of such a nature.”

283

He urged Congress to

create a system to provide relief so that “heavy and ruinous forfei-

tures” could be unwound.

284

Later that year, Congress obliged,

passing the 1790 Remission Act, which allowed property owners to

petition the Secretary of the Treasury for a return of all or a part of

the forfeited items.

285

The Act required petitioners to “truly and

particularly set[ ] forth the circumstances of his case.”

286

After

277. Kevin Arlyck, The Founders’ Forfeiture, 119 COLUM.L.REV. 1449, 1452 (2019).

278. Id. at 1466-68.

279. Id. at 1468.

280. Id.

281. Id. at 1468-69.

282. Alexander Hamilton, Report on the Petition of Christopher Saddler, in 6 T

HE PAPERS

ALEXANDER HAMILTON 191-92 (Harold C. Syrett ed., 1962).

283. Id.

284. Id.

285. Act of May 26, 1790, ch. 12, § 1, 1 Stat. 122, 122-23 (repealed 1797).

286. Id.

466 WILLIAM & MARY LAW REVIEW [Vol. 63:407

hearing from the U.S. Attorney and any other person claiming a

portion of the fine or forfeiture, the judge provided a statement of

facts to the Secretary of the Treasury, who then had the discretion

to remit the punishments in whole or in part if he determined that

the penalty was “incurred without wilful negligence or any intention

of fraud.”

287

To be sure, the historical record does not evince a direct tie

between the Remission Act and the Excessive Fines Clause, but as

Professor Arlyck recounts, there is reason to believe that Secretary

Hamilton and his contemporaries may have seen the two as re-

lated.

288

In 1792, in arguing against the idea that fines and forfei-

tures imposed for violation of a separate federal law were “unusual

or excessive,” Secretary Hamilton pointed to the fact that they could

only be imposed for willful and fraudulent breaches.

289

That stood

in contrast to the offenses for which relief from forfeiture was

granted in the Remission Act cases, suggesting his attentiveness to

the idea of proportionality between offense seriousness and

punishment severity.

290

Though Professor Arlyck acknowledges this

provides a “slender reed,” Secretary Hamilton’s use of language

reflecting the Eighth Amendment’s prohibitions, along with the

familiarity amongst Americans writ large of the inherent nature of

the right against excessive fines,

291

suggests at a minimum that

these procedures were understood to be guided by the principles

long-before secured by Magna Carta.

The 1790 Remission Act significantly cabined the government’s

customs practices in a way directly relevant to the assignment of

the burden of production. Although the burden of requesting re-

mission was on the claimant who would present evidence to the trial

court, which the court would then summarize in a statement of facts

for Treasury’s review, Professor Arlyck’s study reveals that the

287. Id.

288. See Arlyck, supra note 277, at 1512-13; see also Colgan, supra note 69, at 323-24

(noting a need for caution when interpreting historical records that show a remission of

economic sanctions without an explicit connection to a constitutional source).

289. Arlyck, supra note 277, at 1512-13.

290. Id. at 1512-14 (describing debates related to the “Whiskey Tax” imposed for violations

of the Spirits Act).

291. See Timbs v. Indiana, 139 S. Ct. 682, 692-93 (2019) (Thomas, J., concurring in the

judgment); Arlyck, supra note 277, at 1513.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 467

Secretaries often sought out additional evidence from the customs

officers who made the seizure.

292

As Secretary Hamilton put it to one

customs collector, he was “unwilling ... to precipitate a forfeiture as

long as there is a chance of new light to evince innocence.”

293

This

suggests that while the initial burdens of raising the claim and

producing evidence rested with the property owner, government

officials felt an obligation not only to produce any relevant informa-

tion in their control, but also to help claimants make the strongest

case possible in favor of remission.

In addition to these remission practices, historical treatises also

exhibit attention to access to relevant evidence. Early treatises note

that in the guilt phase of the trial, in circumstances in which the

party with the ultimate burden of persuasion would have to prove

a negative to succeed—for example, that a person is not insane to

ward off an insanity defense—a general principle arose that the

burden of persuasion on that point of fact should shift to the party

with “peculiar knowledge” on the question.

294

Though the discussion

of the peculiar knowledge principle in the historical record relates

to determinations of guilt rather than sentencing and speaks in

terms of burdens of persuasion, this supports the modern Court’s

use of the burden of production to promote the delivery of relevant

evidence by the party with superior access.

295

3. Assignment

Both contemporary considerations of fairness and evidence of

historical practice show that, for the assignment of the burden of

production, the primary concern is access to relevant evidence that

can be used to bolster the governmental goals of appropriately and

constitutionally responding to illegal behavior, that protect against

excessive sanctions that can undermine the fiscal health of the

people upon whom they are imposed, their families, and their

communities, and that help reduce the risk of an erroneous de-

termination. The importance of access is relevant across both the

292. Arlyck, supra note 277, at 1490-91.

293. Id. at 1491.

294. See T

HAYER, supra note 94, at 359; WIGMORE, supra note 94, at 3524-25, § 2486.

295. See supra Part II.B.1.

468 WILLIAM & MARY LAW REVIEW [Vol. 63:407

criminal and civil arenas, and so variation based on gradations of

procedural risk is unnecessary. Instead, no matter the forum, if one

party has peculiar knowledge of or superior access to evidence, the

burden of production should be placed accordingly.

As detailed above, in the excessive fines context, some of the

relevant information regarding financial effect and overall dispro-

portionality will be peculiarly within the possession of the person

claiming an economic sanction is excessive, whereas the government

will have superior access to other relevant information.

296

Therefore,

both parties should have the burden of production for information

to which they have peculiar knowledge and access.

In addition to considerations of access, burdens may also properly

be assigned in a manner that promotes parties to comply with their

production obligations.

297

To promote production on both sides, once

the person challenging the sanctions provides a colorable claim that

their imposition will undermine the ability to meet basic human

needs or would interrupt activities that support that end, if the

government fails to provide evidence necessary to understand the

downstream consequences of ongoing debt and of conviction for the

offense, the standard of persuasion or related procedural rules—

discussed further in the next Section—should shift to become more

protective. The opportunity to be afforded more protective treatment

may incentivize the defense to produce mitigating evidence, and the

opportunity to avoid that heightened protection should incentivize

the government to produce evidence uniquely within its control.

D. Burden and Standard of Persuasion

The burden of persuasion—whether it be as to financial effect or

disproportionality—is an assignment of risk to a party, whereas the

standard of persuasion establishes the degree by which the party

with that burden must persuade the finder of fact.

298

While separate

296. Cf. Medina v. California, 505 U.S. 437, 456 (1992) (explaining that the government has

no “responsibility to gather evidence of a defendant’s competence” given that the relevant

evidence is within the control of the accused); Patterson v. New York, 432 U.S. 197, 209 (1977)

(“To recognize at all a mitigating circumstance does not require the State to prove its non-

existence in each case in which the fact is put in issue.”).

297. See Medina, 505 U.S. at 455.

298. See, e.g., T

HAYER, supra note 94, at 356; Solum, supra note 107, at 691-92.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 469

concepts, there is an overlap in both contemporary considerations

and historical evidence regarding the risk of an erroneous determi-

nation, and so this Section addresses them together. Joined with the

governmental and private interests, these considerations support

the conclusion that the burden of persuasion should reside with the

government in all cases as to the financial effect of the sanction and

in all cases other than restitution for the determination of overall

excessiveness. These combined considerations also support variance

in the standards of persuasion according to the criminal or civil

nature of the proceeding and between economic sanctions whose

revenues accrue directly to the government and restitution paid to

non-governmental victims.

1. Contemporary Considerations

When assessing the constitutionality of the assignment of bur-

dens and standards of persuasion the Supreme Court has looked to

three key considerations that are particularly relevant here: the

imprecision of the question to be determined, the risk that racial or

cultural bias will influence the decision, and the dearth of opportu-

nities to seek the correction of an erroneous determination.

First, when assigning standards of proof, the Court has rec-

ognized that the imprecision or fallibility of the evidence related to

an inquiry supports the imposition of a protective standard.

299

By its

very design, the ultimate question of disproportionality is inexact.

Recall that the disproportionality analysis weighs offense serious-

ness against punishment severity.

300

With respect to offense serious-

ness, as the Court has explained, “any judicial determination

regarding the gravity of a particular criminal offense will be inher-

ently imprecise.”

301

The imprecision in determining offense serious-

ness is particularly strong in the civil context given the reduction in

the standard of proof for showing that the offense itself occurred.

302

To date, the Court has only applied the disproportionality analysis

299. See Addington v. Texas, 441 U.S. 418, 429 (1979) (requiring that the prosecution show

a need for civil commitment by clear and convincing evidence in part due to the “lack of

certainty and the fallibility” of the evidence).

300. See supra note 22 and accompanying text.

301. United States v. Bajakajian, 524 U.S. 321, 336 (1998).

302. See supra notes 143-46 and accompanying text.

470 WILLIAM & MARY LAW REVIEW [Vol. 63:407

in criminal cases,

303

in which the government is held to the burden

of proving guilt beyond a reasonable doubt.

304

That highest burden

is employed in criminal cases to “safeguard men from dubious and

unjust convictions, with resulting forfeitures of life, liberty, and

property.”

305

Without it, criminal punishments—including economic

sanctions—cannot be imposed.

306

The lower standard of proof in civil

settings effectively “dilute[s] ... the moral force” of the law, under-

mining the idea that “every individual going about his ordinary

affairs [can] have confidence that his government cannot adjudge

him guilty of a criminal offense without convincing a proper

factfinder of his guilt with utmost certainty.”

307

By choosing to lower

the standard of proof as to wrongdoing, not only do lawmakers

create a greater risk of an erroneous determination of guilt, they

also increase the risk of an erroneous assessment of proportionality

by making it more likely that a person’s guilt will be overstated and

thus that they will be excessively punished.

308

Similar to the question of offense seriousness, a determination of

financial effect for the purpose of assessing punishment severity is

necessarily imprecise and made more so by related governmental

policies. While it may be more readily quantifiable than, for ex-

ample, a person’s competency,

309

any deprivation that would result

in ongoing debt or loss of property that a person has little means to

replace requires a forward-looking calculation into an uncertain

future,

310

made even more uncertain by the byzantine array of

303. See, e.g., Bajakajian, 524 U.S. at 324; Harmelin v. Michigan, 501 U.S. 957, 997-98

(1991) (plurality) (opinion of Kennedy, J.).

304. In re Winship, 397 U.S. 358, 358 (1970).

305. Brinegar v. United States, 338 U.S. 160, 174 (1949).

306. See Nelson v. Colorado, 137 S. Ct. 1249, 1251 (2017) (requiring the return of monies

paid to satisfy economic sanctions after a successful appeal because “once those convictions

were erased, the presumption of innocence was restored”); McMillan v. Pennsylvania, 477

U.S. 79, 92 n.8 (1986) (explaining that criminal penalties may only be imposed “[o]nce the

reasonable-doubt standard has been applied to obtain a valid conviction”).

307. In re Winship, 397 U.S. at 364.

308. See Cooper v. Oklahoma, 517 U.S. 348, 355 (1996) (requiring defendant to prove

competency to stand trial by only a preponderance of the evidence rather than clear and

convincing evidence because the latter standard would create too great a risk that too many

people would be unable to prove incompetency).

309. See id.

310. For a discussion of how time limitations imposed on ongoing payments based upon

offense seriousness promote the principles undergirding the Excessive Fines Clause, see

Colgan, supra note 27, at 55-57.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 471

downstream penalties lawmakers have crafted when people prove

unable to pay

311

and the collateral consequences of conviction.

312

Though the requirement that the government provide information

in its control regarding the likely application of those penalties and

consequences would help reduce the imprecision of the determina-

tion,

313

because debts for even minor offenses can go on for years,

the question of financial effect is necessarily speculative.

314

And in

any case, judges may quite reasonably fail to anticipate economic

crises, such as that created by the COVID-19 pandemic, which has

been particularly calamitous for people of color and those who work

in low-wage, service sector employment,

315

many of whom are also

subjected to disproportionate enforcement of pandemic-related

violations.

316

When economic calamities come to be, those with the

most financial instability are the first to suffer losses and the last

to recover.

317

What once may have been a manageable debt

may—due to personal, or in this case global, catastrophe—suddenly

be out of reach.

The imprecision inherent to the excessiveness inquiry can—yet

again—be further exacerbated by lawmaker decisions related to

system design. Along with the civil forfeiture processes described

above,

318

another example of these design decisions can be found in

municipal courts. The most infamous municipal court is surely that

of Ferguson, Missouri, which municipal officials designed and

operated as a modern-day debtor’s prison that stripped revenue for

municipal use from its Black residents.

319

But Ferguson is far from

311. See supra notes 175-91 and accompanying text.

312. See supra notes 272-74 and accompanying text.

313. See supra Part II.C.3.

314. See, e.g., Harvey & Staicer, supra note 134, at 50 (regarding a case in which it took

seven years to complete payment of debt related to traffic tickets).

315. See, e.g., Brea L. Perry, Brian Aronson & Bernice A. Pescosolido, Pandemic Precarity:

COVID-19 Is Exposing and Exacerbating Inequalities in the American Heartland, 118 P

ROCS.

AT’L ACAD.SCIS. 1, 1 (2021).

316. See Timothy Colman, Pascal Emmer, Andrea Ritchie & Tiffany Wang, The Data Is In.

People of Color Are Punished More Harshly for Covid Violations in the US, G

UARDIAN (Jan.

6, 2021, 6:17 AM), https://www.theguardian.com/commentisfree/2021/jan/06/covid-violations-

people-of-color-punished-more-harshly [https://perma.cc/7QGM-UEJJ].

317. See id.

318. See supra notes 228-32 and accompanying text.

319. See generally Investigation of the Ferguson Police Department, U.S.

EP’T OF JUST.CIV.

TS.DIV. (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/press-releases/attach

472 WILLIAM & MARY LAW REVIEW [Vol. 63:407

alone. As Alexandra Natapoff and Justin Weinstein-Tull have

recently documented,

320

in many jurisdictions these courts—which

handle local ordinance violations, traffic citations, and in some cases

misdemeanor offenses—operate in what some have called “con-

stitution-free zones.”

321

In many jurisdictions the judges in such

proceedings are not required to be lawyers or to have even basic

knowledge of the law.

322

A survey of 1250 municipal courts in New

York found that nearly 75 percent of judges were not lawyers, “and

many—truck drivers, sewer workers or laborers—[had] scant grasp

of the most basic legal principles. Some never got through high

school, and at least one went no further than grade school.”

323

But

even with law-trained judges, municipal courts are often subject to

limited oversight from state court systems

324

and may experience

pressure to raise revenues to support court funding or other local

projects.

325

Under such circumstances, there is a significant risk of

erroneous determinations of ability to pay and excessiveness that

can be tempered, at least somewhat, by placement of the burden

and standard of persuasion on the government at a high level.

ments/2015/03/04/ferguson_police_department_report.pdf [https://perma.cc/9SNN-V85C].

320. See generally Alexandra Natapoff, Criminal Municipal Courts, 134 H

ARV.L.REV. 964

(2021); Justin Weinstein-Tull, The Structures of Local Courts, 106 V

A.L.REV. 1031 (2020).

321. Weinstein-Tull, supra note 320, at 1046.

322. Natapoff, supra note 320, at 1000-03; Weinstein-Tull, supra note 320, at 1053-55.

323. William Glaberson, In Tiny Courts of N.Y., Abuses of Law and Power, N.Y.

IMES

(Sept. 25, 2006), https://www.nytimes.com/2006/09/25/nyregion/25courts.html [https://perma.

cc/HM9B-LXWX]; Weinstein-Tull, supra note 320, at 1054-55; see also Julia C. Lamber &

Mary Lee Luskin, City and Town Courts: Mapping Their Dimensions, 67 I

ND. L.J. 59, 67

(1991) (analyzing Indiana city and town courts and finding that only 42 percent of judges were

lawyers). The Supreme Court has approved the use of lay judges in courts handling low-level

matters such as traffic violations on the understanding that those cases did not involve “com-

plex litigation.” North v. Russell, 427 U.S. 328, 334 (1976). For the reasons discussed herein,

an excessive fines claim is certainly more complex than determining whether or not someone

ran a red light. The Court also required that appeals as of right to a higher court be provided

in such cases, along with meaningful notice of how to undertake such an appeal. Id. at 335.

Further research is needed to understand the extent to which municipal courts using lay

judges adhere to those requirements. Cf. Natapoff, supra note 320, at 1003-05 (noting that

several states have limited appeals in ways inconsistent with Russell, including Delaware in

which appeals may not be taken for fines less than $100).

324. See Weinstein-Tull, supra note 320, at 1064-76.

325. See, e.g., U.S.

EP’T OF JUSTICE CIV.RTS.DIV., supra note 319, at 14 (linking pressure

from Ferguson’s Finance Director and the municipal judge’s adoption of numerous fees and

surcharges, which the Finance Director praised in a report to the City Council as having help-

ed “significantly increas[e] court collections over the years”).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 473

Second, in addition to considering the imprecision of the inquiry,

the Court has recognized the need for at least a clear and convinc-

ing standard when the assessment at hand is “vulnerable to

judgments based on cultural or class bias,” which it has explained

can be expected in circumstances where the people subject to the

possible deprivation are “poor, uneducated, or members of minority

groups.”

326

As detailed above, law enforcement efforts at generating

revenue through economic sanctions have long been focused on

heavily policed—and particularly Black and Latinx—communi-

ties.

327

Not only does that heighten the risk to people in those

communities when economic sanctions are imposed, it also height-

ens the risk that the determination of financial effect, and therefore

of overall excessiveness, will be faulty. Sentencing judges may, for

example, insufficiently account for structural issues of race and

class that restrict access to employment, childcare, health care, and

other basic needs.

328

And finally, the risk of error is exacerbated by the fact that there

is a scarcity of opportunities to seek correction of an erroneous

determination. The Court has taken this concern particularly

seriously in cases in which the assignment of burdens involves a

decision that is irreversible: a determination as to insanity prior to

execution,

329

a decision to remove life support,

330

or the termination

of parental rights.

331

But most recently, the same concern arose in

Nelson v. Colorado, in which the Court struck down a procedure

that both actually (in the case of misdemeanors) and effectively (by

assigning the burden of proof in felony cases to the individual

beyond a reasonable doubt) prevented a return of money paid to

satisfy economic sanctions imposed on the basis of convictions later

overturned.

332

326. Santosky v. Kramer, 455 U.S. 745, 762-64 (1982) (requiring at least a clear and

convincing evidence standard be employed in hearings to terminate parental rights).

327. See supra notes 80-83, 125-30 and accompanying text.

328. See Zhen, supra note 258, at 201.

329. See Ford v. Wainwright, 477 U.S. 399, 411-12 (1986).

330. Cruzan v. Director, 497 U.S. 261, 283 (1990).

331. Santosky, 455 U.S. at 759.

332. 137 S. Ct. 1249, 1260 (2017) (Alito, J., concurring) (“These stringent requirements all

but guarantee that most defendants whose convictions are reversed have no realistic oppor-

tunity to prove they are deserving of refunds.”).

474 WILLIAM & MARY LAW REVIEW [Vol. 63:407

Opportunities to obtain relief on the issue of financial effect, as

well as the ultimate question of excessiveness are effectively

unavailable in many cases. The possibility of being sentenced to

terms of incarceration places tremendous pressure on people to

plead guilty to offenses carrying lower terms or no period of in-

carceration but that still involve, in many cases, significant eco-

nomic sanctions.

333

Once taken, the plea often carries with it a

waiver of the ability to appeal excessive fines claims.

334

In addition,

because lawmakers have chosen not to provide counsel in many

misdemeanor and low-level cases, people are left to manage exces-

sive fines claims on their own.

335

As noted above, that is unlikely

given that laypeople may not be aware of the existence of the

Excessive Fines Clause, let alone how to argue and properly pre-

serve an excessive fines claim.

336

While the notice requirement pro-

posed above with respect to the burden of raising the claim helps

temper this concern,

337

even in misdemeanor cases, in which access

to counsel is afforded in at least some circumstances, appeals on any

issue—let alone excessive fines challenges—are rare. In a recent

study, Professors Nancy King and Michael Heise determined that,

accounting for all issues, appellate courts review only eight out of

ten thousand misdemeanor cases.

338

Appeals are made even more

complicated in jurisdictions in which the lower courts that often

impose economic sanctions are not required to create transcripts

upon which an appeal may be based.

339

Further, along with the

333. See, e.g., Christopher W. Maidona, Ordering Criminal Restitution: An Exercise in

Overstepping Statutory Authority, 120 W. V

A.L.REV. 253, 272 (2017); Alexes Harris, Beth

Huebner, Karin Martin, Mary Pattillo, Becky Pettit, Sarah Shannon, Bryan Sykes & Chris

Uggen, United States Systems of Justice, Poverty and the Consequences of Non-Payment of

Monetary Sactions: Interviews from California, Georgia, Illinois, Minneosta, Missouri, Texas,

New York, and Washington, A

RNOLD FOUND. 39 (2017), https://perma.cc/AVN9-3MTB (stating

that several respondents reported “that during their sentencing, they had been focused on so

many other things, such as the length of time they were going to be incarcerated, that they

didn’t fully comprehend the burden of the fines and fees being imposed until after they were

released and had to start making payments”).

334. See Alexandra W. Reimelt, An Unjust Bargain: Plea Bargains and Waiver of the Right

to Appeal, 51 B.C.

L. R

EV. 871, 875-79 (2010).

335. See supra notes 218-21 and accompanying text.

336. See supra notes 222-23 and accompanying text.

337. See supra Part II.B.3.

338. Nancy J. King & Michael Heise, Misdemeanor Appeals, 99 B.U.

L. R

EV. 1933, 1941

(2019).

339. Natapoff, supra note 320, at 980, 1003-04; Weinstein-Tull, supra note 320, at 1072-73.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 475

general limitations on error correction, in some forfeiture cases,

property may be sold off while an appeal is pending,

340

and people

convicted of criminal offenses are precluded from requesting that

the U.S. Attorney’s office employ its statutory authority to mitigate

forfeitures.

341

Beyond the limitations on relief via appeal, pardons may in the-

ory provide an avenue for error correction, but that may also be

hampered by state policy. In some states, people are precluded from

seeking pardons until economic sanctions are paid in full.

342

And,

though technically available in other states, pardons are employed

only rarely in modern times in any case.

343

Further, while public

pressure has led some jurisdictions to offer one-time amnesty relief

for long-overdue debt,

344

this ad hoc approach does not constitute

the kind of sustained and meaningful opportunity for relief that

might warrant a less-protective assignment of the burden and

standard of persuasion.

345

2. Historical Evidence

As in the context of burdens of production, the historical evidence

relevant to the burdens and standards of persuasion to be assigned

in relation to excessive fines claims is useful for analyzing the fun-

damental fairness of these assignments. In particular, and despite

the longstanding pattern of abuse dating back to Magna Carta, the

historical record does show that protecting the guarantees of

proportionality and attention to one’s ability to meet basic needs

340. See 18 U.S.C. § 1963(f); 21 U.S.C. § 853(h).

341. See 18 U.S.C. § 1963(i)(2).

342. See, e.g., I

DAHO ADMIN.CODE r. 50.01.01.550.02(b)(v) (2021).

343. See Rachel E. Barkow & Mark Osler, Reconstructing Clemency: The Cost of Ignoring

Clemency and a Plan for Renewal, 82 U.

HI.L.REV. 1, 6 (2015).

344. See, e.g., Nushrat Rahman, Detroit Court’s Amnesty Program Ends Next Week: What

You Should Know, D

ETROIT FREE PRESS (July 3, 2020, 4:49 PM), https://www.freep.com/story/

news/local/michigan/detroit/2020/07/02/detroit-36th-district-courts-amnesty-program/

3284371001/ [https://perma.cc/D9FV-9BXQ] (regarding a short-term program that allowed

waivers for fees but not fines related to traffic tickets).

345. See Addington v. Texas, 441 U.S. 418, 428-29, 433 (1979) (mandating that the

standard for civil commitment be clear and convincing evidence, reasoning in part that it need

not be as high as a beyond a reasonable doubt standard because the person would be subject

to ongoing treatment and thus have repeated opportunities to seek release from an erroneous

commitment).

476 WILLIAM & MARY LAW REVIEW [Vol. 63:407

was understood to be important, as is evident in caselaw,

346

statutes,

347

and treatises

348

from the seventeenth century forward.

What is noteworthy in the historical record is evidence indicating

that, when taken seriously rather than ignored for fiscal and po-

litical gain, remission of fines and forfeitures was common, suggest-

ing that the burden of persuasion was either on the claimant but at

a low standard or instead rested with the government to justify that

the punishment was not excessive. This is not to say that all at-

tempts at seeking relief were successful; in the few as-applied

challenges in the early American appellate record, there were both

wins and losses.

349

But other records suggest that at the trial stage

346. See, e.g., State v. Manuel, 20 N.C. 114, 128 (1838) (“Whether a fine be reasonable or

excessive ought to depend on the nature of the offense and the ability of the offender.”);

Commonwealth v. Morrison, 9 Ky. 75, 99 (Ct. App. 1819) (reasoning that a fine “should bear

a just proportion to the offense committed” as well as to “the situation, circumstances and

character of the offender”); Jones v. Commonwealth, 5 Va. 555, 556-57 (1799) (explaining that

fines must “be imposed secundum quantitatem delicit salvo contenemento” and, referring to

the Excessive Fines Clause, that “the fine or amercement ought to be according to the degree

of the fault and the estate of the defendant”); The Case of William Earl of Devonshire, 11

How. St. Tr. 1353, 1370 (H.L. 1689) (striking down a £30,000 fine as “excessive and exor-

bitant, against Magna Charta, the common right of the subject, and against the law of the

land”); see also State v. Reid, 11 S.E. 315, 316 (N.C. 1890) (“It is hardly possible, by any fixed

or arbitrary rule, to apportion, with exact precision, punishments to offenders; for there are

almost as many shades of guilt, and of aggravation or mitigation to be considered in passing

sentence, as there are offenses committed.”); Burgh v. State ex rel. McCormick, 9 N.E. 75, 55

(Ind. 1886) (noting that a court that uses discretion to impose severe fines in situations where

there is a “grave wrong” would be justified); State v. Miller, 94 N.C. 904, 907 (1886) (“[I]t may

not be so enormous and disproportionate to the crime proved by the evidence, indicating a

disposition to oppress, rather than subserve the common good.”); Blydenburgh v. Miles, 39

Conn. 484, 497 (1872) (noting that an individual challenge to the excessiveness of the fine

“must depend materially upon the circumstances and the nature of the act for which it is

imposed”); Bullock v. Goodall, 7 Va. 44, 48 (1801) (noting that the prohibition on excessive

fines be “commensurate to the offence and injury”).

347. See, e.g., 1787 N.Y.

AWS 344-45 (requiring that any “fine or amerciament shall always

be according to the quantity of his or her trespass or offence and saving to him or her, his or

her contenement”); 1786 V

A.ACTS 41-42 (“[T]he amercement which ought to be according to

degree of the fault, and saving to the offender his contenement.”).

348. See, e.g., 4 B

LACKSTONE, supra note 84, at 371 (describing proportionality as requiring

consideration of “the aggravations ... of the offence,” and “the quality and condition of the

parties”); C

HITTY, supra note 90, at 711 (explaining that judicial discretion is constrained by

Magna Carta); S

TEPHEN, supra note 84, at 490 (“The statutory rules as to the amount of the

fines ... are vague to the last degree. I know, indeed, of two [constraints] only. The first is the

provision of Magna Carta .... The second is the provision of the Bill of Rights.”).

349. Compare Bullock, 7 Va. at 49-50 (“No man can doubt, but that a fine of 264£ 8s. 9d.

imposed on an officer who has committed no fault, for the benefit of a creditor who has

sustained no injury, is superlatively excessive, unconstitutional, oppressive, and against

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 477

and in other processes of remission, reductions in fines were rel-

atively routine in at least some courts. For example, a tract con-

trasting the seventeenth century judicial practices of Archbishop of

Canterbury John Whitgift to other judges sitting in the Star

Chamber reported that he “did constantly in this Court maintain

the liberty of the Free Charter that none ought to be fined but salvo

contenimento. He seldom gave any sentence but therein did mitigate

in something the acrimony of those that spake before him.”

350

Historical records related to pardon and similar procedures also

indicate that remission of economic sanctions was common. In the

mid- to late eighteenth century, the Rhode Island General Assembly

regularly granted petitions for relief, including on claims that eco-

nomic sanctions would leave a person or his or her family des-

titute.

351

Likewise, Professor Arlyk’s study of the 1790 Remission

Act proceedings provides an additional example of the common

practice of reducing economic sanctions that may otherwise be con-

stitutionally excessive. As described above, after forfeiture, property

owners could seek relief through the Secretary of the Treasury, who

would often gather additional evidence regarding the circumstances

of the forfeiture.

352

With evidence from both the property owner and

government collected, the Secretary would then consider whether to

grant relief.

353

While the burden of proving that the violation was

unintentional was on the claimant, any plausible indication that the

offense was unwillful or due to ignorance of the law was sufficient

to require remission in whole or in part, even in cases with limited

or questionable evidentiary support.

354

As a result, the Secretaries

granted 91 percent of all remission petitions, nearly three-quarters

conscience.”), with Ex parte Keeler, 23 S.E. 865, 868 (S.C. 1896) (holding that a fine imposed

for a dispensary act violation was not excessive).

350. B

URN, supra note 74, at 4, 10; see also 4 BLACKSTONE, supra note 84, at 19 (“[J]udges,

through compassion, will respite one half of the convicts, and recommend them to the royal

mercy.”); Alfred N. May, An Index of Thirteenth-Century Peasant Impoverishment? Manor

Court Fines, 26 E

CON.HIS.REV. 389, 395-99 (1973) (analyzing court roles dating from 1208

to 1321 and positing, based in part on references to poverty in the records and the existence

of an economic crisis, that declining fine rates in the period may be explained by consistent

attention to individual financial condition in setting fines).

351. Colgan, supra note 69, at 331.

352. See supra notes 277-93 and accompanying text.

353. See supra notes 286-87 and accompanying text.

354. See Arlyck, supra note 277, at 1488-91.

478 WILLIAM & MARY LAW REVIEW [Vol. 63:407

of which were granted in full, with the remaining grants signifi-

cantly reducing the penalty.

355

In addition to the frequency of remission, another historical prac-

tice—jury nullification—provides some insight regarding burdens

and standards of persuasion. Jury nullification occurred when jurors

refused to convict or convicted only for a lesser offense despite evi-

dence of guilt beyond a reasonable doubt because they understood

that the punishment that would follow would be disproportionate to

the offense.

356

As the Supreme Court has explained: “This power to

thwart Parliament and Crown took the form not only of flat-out

acquittals in the face of guilt but of what today we would call ver-

dicts of guilty to lesser included offenses, manifestations of what

Blackstone described as ‘pious perjury’ on the jurors’ part.”

357

some cases, jurors were motivated by a desire to avoid the imposi-

tion of forfeiture of estate, and so would convict only on lesser of-

fenses that did not carry the penalty,

358

or by declining to find the

existence of property that could be subject to forfeiture.

359

To be

sure, available records do not explicitly tie this form of jury nulli-

fication to the Excessive Fines Clause. But because jurors were re-

acting in whole or in part to the severity of the punishment that

would be imposed upon conviction and its disproportionality to the

alleged offense, this practice effectively placed the burden of proving

proportionality on the prosecution beyond a reasonable doubt.

355. Id. at 1488.

356. For example, in 1815 a South Carolina court remarked:

However absurd it may appear, that a jury who are sworn to determine a case

according to the evidence, should be authorized to find goods stolen of less value

than twelve pence, when all the witnesses swear they are of much greater value,

it is what Judge Blackstone calls a pious perjury, which they have been indulged

in, until it has become the law of the land. The principle has been too long

established, to be now called in question, and therefore, a new trial must be

refused.

OSEPH BREVARD,REPORTS OF JUDICIAL DECISIONS IN THE STATE OF SOUTH CAROLINA 515

(1840) (reprinting State v. John Bennett); see also 4 B

LACKSTONE, supra note 84, at 18

(“[J]uries, through compassion, will sometimes forget their oaths, and either acquit the guilty

or mitigate the nature of the offence.”); Bushell’s Case, 124 Eng. Rep. 1006, 1017 (C.P. 1670)

(holding that jurors could not be fined for jury nullification absent a demonstration that the

result was actually improper).

357. Apprendi v. New Jersey, 530 U.S. 466, 479 n.5 (2000) (quoting Jones v. United States,

526 U.S. 227, 245 (1999)).

358. See 4 B

LACKSTONE, supra note 84, at 380; GOEBEL &NAUGHTON, supra note 80, at 712.

359. See G

OEBEL &NAUGHTON, supra note 80, at 715-16.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 479

3. Assignment

The following first addresses the assignments of the burdens and

then the standards of persuasion for various economic sanctions.

a. Burdens of Persuasion

When the contemporary considerations and historical practices

regarding governmental interests, private interests, and risks of

erroneous determinations are combined, they support an assign-

ment of the burden of persuasion to the government for two ques-

tions: (1) financial effect regardless of economic sanction type; and

(2) the ultimate question of disproportionality with respect to fines,

fees, and forfeitures.

While the government has an interest in enforcing the law,

depriving people of the actual instrumentalities and proceeds of

crimes, and avoiding unnecessary administrative and economic

costs, those interests are set against the backdrop of a problematic

history. For centuries the allure of using the government’s prosecu-

torial power as a tax avoidance mechanism, implemented primarily

against those with limited political power, has proven too great to

go without a meaningful check.

360

And the government has no

interest in the imposition of disproportionate economic sanctions

that undermine constitutional enforcement and raise questions

about its legitimacy.

361

Further, the imposition of excessive fines can create significant

financial and social precarity for the person against whom they are

imposed and their families, with ripple effects felt by entire com-

munities and particularly communities of color.

362

Those risks are

present even with respect to restitution paid to non-governmental

victims, where the risk of governmental abuse is reduced. That

reduced risk is accounted for in assigning the burden of persuasion

for overall excessiveness of restitution to the defendant, addressed

next, and in assigning the standard of persuasion on that

360. See supra notes 67-87, 117-30 and accompanying text.

361. See supra notes 160-69 and accompanying text.

362. See supra Part II.A.2.

480 WILLIAM & MARY LAW REVIEW [Vol. 63:407

question.

363

The imposition of the obligation to pay $1,000 has the

same effect on a person’s financial condition—including the punitive

and stigmatizing responses to nonpayment devised by the govern-

ment—no matter the recipient.

Add to this the imprecision inherent in determining dispro-

portionality and financial effect, the risk of bias infecting such de-

terminations, and the lack of opportunities to reverse a wrongful

imposition.

364

Collectively, these considerations suggest that to meet

the requirement of fundamental fairness, the burden of persuasion

must be assigned to the government with regard to the financial

effect of any form of economic sanction, and with regard to proving

the proportionality of fines, fees, and forfeitures.

Unlike other economic sanctions, however, the assignment of

burdens and standards with respect to the disproportionality of a

restitution award to a non-governmental victim does not stand in

the shadow of such a significant risk of government abuse. It is true

that restitution is an imperfect system and that unmanageable

restitution can exacerbate financial precarity—which is considered

again below with respect to the standard of proof that should

apply.

365

But it is also true that before restitution must be imposed,

the government carries the obligation to prove by at least a

preponderance of the evidence that there are compensable losses for

which the defendant is culpable, which provides at least a limited

degree of protection as to the offense seriousness side of the

proportionality inquiry.

366

Therefore, it is in keeping with contempo-

rary considerations of fairness and history to place the burden of

establishing the excessiveness of a restitution award on the person

against whom it is imposed.

b. Standards of Persuasion

With the burdens of persuasion assigned, the question becomes

what standard of proof should apply. Three traditional standards,

from most protective to least, are beyond a reasonable doubt, clear

363. See infra Part II.D.3.b.iv.

364. See supra Part II.D.1.

365. See infra Part II.D.3.b.iv.

366. See supra note 28 and accompanying text.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 481

and convincing evidence, and the preponderance of the evidence.

367

Generally, the Court has required the prosecution to prove sentenc-

ing factors, such as prior criminal history, by a preponderance of the

evidence, but has reserved the question of whether the burden

should be heightened for facts that may significantly increase sen-

tence severity.

368

i. Financial Effect

No matter the setting, when determining financial effect, a clear

and convincing evidence standard is warranted.

369

There are, of

course, important distinctions between criminal and civil settings.

Those distinctions, however, are not implicated with respect to as-

certaining the financial effect of the punishment. For example,

while it is true that in a criminal matter in which the sentence in-

cludes both fines and a period of incarceration, the fact of the in-

carceration—which, among other things, cuts the person off from

outside employment, substituting in the mere possibility of earning

below-market wages if fortunate enough to obtain a position within

367. Addington v. Texas, 441 U.S. 418, 423 (1979).

368. See Almendarez-Torres v. United States, 523 U.S. 224, 247-48 (1998) (requiring that

prosecutors prove a person’s prior criminal history by a preponderance of the evidence, but

noting “we express no view on whether some heightened standard of proof might apply to

sentencing determinations that bear significantly on the severity of the sentence”); United

States v. Watts, 519 U.S. 148, 156 & n.2, 157 (1997) (per curiam) (noting a “divergence of

opinion among the Circuits as to whether, in extreme circumstances, relevant conduct that

would dramatically increase the sentence must be based on clear and convincing evidence”).

369. Under this set of proposed assignments, more stringent procedural protections would

be necessary if (1) the person upon whom the sanction would be imposed raises a colorable

claim that the proposed sanctions would preclude that person or his or her family from

meeting basic needs or would interrupt activities that support that end and (2) the govern-

ment in turn fails to produce evidence uniquely in its control regarding the downstream

implications of systems it has created that may interfere with payment. See supra notes 298-

99 and accompanying text. One possibility is to preclude the imposition of economic sanctions

until the government provides relevant information in its control. An alternative would be to

raise the standard of proof to beyond a reasonable doubt. It should be noted that the impo-

sition of a rebuttable presumption would be insufficient in this context because it merely

serves to shift the burden of persuasion, which would already be placed on the government

under the proposed assignment. See Solum, supra note 107, at 700-02 (explaining that im-

position of presumption—a corollary to burdens of persuasion—can be justified where it

creates incentives to reduce future uncertainty and deter bad acts, using as an example the

presumption that spoliated documents contained evidence unfavorable to the party who

destroyed them).

482 WILLIAM & MARY LAW REVIEW [Vol. 63:407

the jail or prison

370

—will have implications for the person’s fiscal

condition that would not exist in the civil setting in which sentences

of incarceration are not allowed. But available income is part of the

consideration of financial effect regardless of whether a person is

subjected to incarceration or not, and whether the government

chooses to subject a person to criminal or civil proceedings.

The assignment of a clear and convincing evidence standard for

ascertaining financial effect is justified on two grounds. First is the

imprecise nature and effective finality of the inquiry. In the context

of fines and fees that will result in ongoing debt, the question is

inherently forward looking, and so a court is unable to account for

unforeseen personal or societal fiscal calamities.

371

And in any case,

there is a substantial risk that the court will fail to account for

racial or class bias in reaching the determination, a particularly

important risk in light of the disproportionate enforcement of

behaviors that often results in the imposition of fines, fees, and

forfeitures.

372

The dearth of opportunities for post-imposition relief

via appeal, pardon, or other processes essentially locks in the er-

ror.

373

Taken together, those uncertainties and conclusiveness not

only raise the risk that excessive economic sanctions will be imposed

on people unable to absorb them, but also increases the risk to the

government with respect to its interests in upholding the Constitu-

tion and ensuring that its legitimacy is not undermined by economic

sanctions that line its coffers while impoverishing its citizenry.

Beyond the risk created by the uncertainty of the inquiry, the

clear and convincing evidence standard is justified because of the

way in which lawmakers’ decisions to adopt highly punitive pen-

alties for non-payment and collateral consequences of conviction

heighten the risk to people, their families, and their communities.

374

To be sure, the Court has previously mandated a clear and con-

vincing standard in cases where the question at hand involves

370. See State and Federal Prison Wage Policies and Sourcing Information, PRISON POL’Y

INITIATIVE, https://www.prisonpolicy.org/reports/wage_policies.html [https://perma.cc/BJ57-

JLRX].

371. See supra notes 313-17 and accompanying text.

372. See supra notes 125-30, 326-28 and accompanying text.

373. See supra notes 329-41 and accompanying text.

374. See supra notes 175-91, 272-74 and accompanying text.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 483

significant deprivations, such as denaturalization,

375

termination of

parental rights,

376

and the loss of liberty due to civil commitment,

377

in part because those deprivations were more significant than a

“mere loss of money” or property.

378

As detailed above, however, the

consequences of imposing economic sanctions can result in the loss

of citizenship rights such as voting,

379

financial precarity that places

family unity at risk,

380

and deprivations of liberty through the use

of arrest warrants.

381

It should be noted, however, that this assignment of a clear and

convincing standard need not be set in stone. Lawmakers could take

steps to limit the amount of economic sanctions imposed by abol-

ishing the fees that they have tacked on over time to generate more

and more revenue, and by eliminating or significantly reducing the

addition of interest and collections costs so people can reach the

principal debt.

382

Lawmakers could also significantly reduce the

downstream penalties associated with unpaid economic sanctions—

for example, by doing away with driver’s license suspensions, ve-

hicle impoundment programs, arrest warrants, and similar con-

sequences for those unable to pay; eliminating or strictly limiting

collateral consequences of conviction that restrict access to employ-

ment and public benefits; and disentangling ongoing debt resulting

from economic sanctions from other forms of punishment, such as

the length of probation and parole terms and voter disenfranchise-

ment.

383

Lawmakers could also reduce the risk of an erroneous

375. Schneiderman v. United States, 320 U.S. 118, 122-23 (1943).

376. Santosky v. Kramer, 455 U.S. 745, 747-48 (1982).

377. Addington v. Texas, 441 U.S. 418, 433 (1979).

378. Id. at 424; Santosky, 455 U.S. at 758-59; Schneiderman, 320 U.S. at 122.

379. See supra notes 191, 209-10 and accompanying text.

380. See supra notes 183-86, 199-200 and accompanying text.

381. See supra notes 176, 178-79 and accompanying text.

382. See supra note 187 and accompanying text.

383. See supra notes 175-79, 187-90, 272-74 and accompanying text; see also Colgan, supra

note 188, at 77-80. Lawmakers could also eliminate penal disenfranchisement entirely, as the

District of Columbia did in 2020, joining Maine and Vermont as jurisdictions in which a con-

viction does not restrict the franchise. Fenit Nirappil, D.C. on the Brink of Allowing Inmates

to Vote from Prison, W

ASH.POST (July 8, 2020, 3:20 PM), https://www.washingtonpost.com/

local/dc-politics/dc-prison-voting/2020/07/08/2683bd1e-c11d-11ea-b4f6-cb39cd8940fb_story.

html [https://perma.cc/7HCL-HM54].

484 WILLIAM & MARY LAW REVIEW [Vol. 63:407

imposition of excessive economic sanctions by creating meaningful

ongoing opportunities for pre- and post-imposition remission.

384

ii. Excessiveness of Fines, Fees & Forfeitures: Criminal

Turning now to the question of overall excessiveness, we begin

with the imposition of fines, fees, and forfeitures in criminal settings

in which people are afforded full procedural protections including

proof of guilt beyond a reasonable doubt and access to counsel.

385

with the question of financial effect, a balancing of the governmen-

tal interests and private interests at stake along with the risks of an

erroneous determination support the assignment of a clear and

convincing evidence standard.

386

The governmental interest in avoiding an overly protective

assignment of burdens is highest in this setting. Ensuring that guilt

is established beyond a reasonable doubt shores up the offense

seriousness side of the proportionality analysis and supports

governmental claims that its interests in responding to violations of

the law and depriving people of the instrumentalities and proceeds

of crimes are more firmly established.

387

That, and the fact that

people subjected to economic sanctions have counsel to argue on

their behalf at each stage of the proceedings, also increases the

governmental interest in ensuring that the Excessive Fines Clause

will be enforced.

388

384. See supra notes 334-45 and accompanying text.

385. There are many reasons to question the benefit of the procedural protections afforded

in criminal proceedings. See, e.g., Eve Brensike Primus, Culture as a Structural Problem in

Indigent Defense, 100 M

INN.L.REV. 1769, 1783-90 (2016) (regarding chronic underfunding

of indigent defense services); Thea Johnson, Fictional Pleas, 94 I

ND.L.J. 855 (2019) (regarding

the implications of collateral consequences for plea bargaining). The point made here is that

in terms of governmental interests, private interests, and risks of erroneous decision-making,

the procedural protections afforded in criminal settings are comparatively less problematic

than in civil processes.

386. As with the assignment of a clear and convincing standard on the question of financial

effect, if the government failed to meet its discovery obligations it would trigger enhanced

procedural protections including either a prohibition on imposing economic sanctions until the

government produces relevant information or an increase in the burden to a beyond a

reasonable doubt standard. See supra note 369.

387. See supra notes 112-47, 299-308 and accompanying text.

388. See supra notes 215-23, 227 and accompanying text. Criminal cases in which counsel

is effectively denied would fall under the assignment of standards in the civil setting

addressed in the next subpart.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 485

Though the governmental interests related to responding to

offending behavior are heightened in the criminal arena, its in-

terests in administrative efficiency and legitimacy present a more

complicated picture. It might be assumed that a clear and convinc-

ing standard could overly incentivize the raising of excessive fines

challenges, tying up the courts’ dockets.

389

But an uptick in hearings

may be most likely in jurisdictions where governmental legitimacy

is at greatest risk, for example, where lawmakers have established

very high-dollar fine amounts, imposed fee after fee in a bid at tax-

avoidance, or drawn forfeiture laws so loosely that the loss of cash

or property is possible even when the offense is minor or the con-

nection to any offense is tenuous at best.

390

Challenges would also

likely increase in cases in which the risk that economic sanctions

will create or exacerbate poverty is aggravated by punitive re-

sponses to nonpayment—among the very cases that undermine gov-

ernmental legitimacy by leading people to question whether the

government prizes revenues over justice.

391

Further, such an uptick

may not even increase system costs given that the resulting impo-

sition of fewer unmanageable economic sanctions could lessen the

reliance on the administrative apparatus created to collect and en-

force those debts that go unpaid.

392

As to the possibility of private harms, the risks of an erroneous

determination of excessiveness are reduced in the criminal sphere

due to the enhanced procedural protections afforded in criminal set-

tings, as well as the assignment of a heightened standard of proof

for determining financial effect proposed above.

393

Because guilt is

established beyond a reasonable doubt, the certainty of whether an

offense occurred is greater, contributing to the ability to properly

assess overall proportionality.

394

On the other side of the proportion-

ality equation is punishment severity, assessed in part through the

389. Cf. Pimentel v. City of Los Angeles, 974 F.3d 917, 928 & n.8 (9th Cir. 2020) (Bennett,

J., concurring in judgment) (expressing concern that individual excessiveness determinations

on parking tickets would tie up the courts).

390. See supra notes 118-23, 136-47 and accompanying text.

391. See supra notes 175-86 and accompanying text; Colgan, supra note 27, at 58-61.

392. See, e.g., Colgan, supra note 258, at 69-73.

393. See supra Part II.D.3.b.i.

394. See supra notes 224-27 and accompanying text.

486 WILLIAM & MARY LAW REVIEW [Vol. 63:407

determination of financial effect.

395

The assignment of the burden of

proving financial effect to a clear and convincing standard will aid

in reducing the risks caused by the inherently imprecise nature of

that determination.

The question then becomes whether, in this more protective crim-

inal setting, it would be sufficient to use the preponderance of the

evidence standard—within which the parties “share the risk of error

in roughly equal fashion”

396

—in light of the Court’s admonition that

“[t]he individual should not be asked to share equally with society

the risk of error when the possible injury to the individual is sig-

nificantly greater than any possible harm to the state.”

397

Whether adjudicated criminally or not, the potential private

harms outweigh the at times contradictory governmental interests

in play, supporting application of a heightened standard. The im-

position of constitutionally excessive economic sanctions not only

makes it more likely people will be unable to meet their own and

their families’ basic needs, it also triggers the punitive and stig-

matizing array of penalties for non-payment and increases in pun-

ishment lawmakers have designed. Those systems keep people,

their families, and their communities under the government’s

thumb not due to their culpability for the underlying offense, but

because they are unable to pay or absorb the loss. Given the severity

of these punishments, the harm caused to innocent family and

community members, and the way in which these results undermine

the governmental interests in constitutional enforcement and le-

gitimacy, the possible injury is significantly greater than any likely

governmental harm. A clear and convincing evidence standard is

warranted.

As with the assignment of the clear and convincing evidence

standard with respect to financial effect, the government itself holds

the keys to a less onerous standard for proving overall excessive-

ness. In addition to the reforms noted above, such as the elimination

of fees and punitive downstream responses to nonpayment, law-

makers could, for example, more strictly limit what constitutes a

significant nexus for purposes of criminal forfeiture so that it is less

395. See supra notes 31-32 and accompanying text.

396. Addington v. Texas, 441 U.S. 418, 423 (1979).

397. Id. at 427.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 487

likely that a family’s home, automobile, or other essential property

will be lost due to a tangential relationship to a crime.

398

iii. Excessiveness of Fines, Fees & Forfeitures: Civil

For the purpose of assuring fundamental fairness in assigning

burdens, the civil setting is distinct from the criminal in two critical

ways—both of which support the use of a beyond a reasonable doubt

standard for assessing overall excessiveness.

399

First, the risk of an erroneous decision is increased where law-

makers have denied access to counsel who might present counter-

vailing evidence and have eschewed the beyond a reasonable doubt

standard for ascertaining whether an offense even occurred.

400

This

is crucial to the proportionality inquiry, which depends on the

existence of an offense against which the proportionality of the

punishment can be measured.

401

In other words, without those

safeguards, the protections against the wrongful imposition of any

punishment is reduced, making the risk of excessive punishment

greater.

Second, by choosing to create systems by which the government

can more effortlessly extract money and property from people, law-

makers have made it easier to abuse the government’s penal power

as a means of tax-avoidance, with such abuses disproportionately

borne by politically vulnerable Black and Latinx communities. They

have done so not only by denying access to counsel and reducing

burdens of proof, but also in some cases by allowing guilt and pun-

ishment to be imposed by lay judges without legal training or by

seeking forfeitures through complicated procedures without ever

even charging a person with a crime.

402

Not only do these and other

procedural barriers undermine the government’s interest in being

398. See supra note 147 and accompanying text.

399. Unlike with the standard for financial effect and fines, fees, and forfeitures in the

criminal sphere, see supra note 369, it is more difficult to increase the beyond a reasonable

doubt standard here should the government fail to meet its discovery obligations. One pos-

sibility is to increase the standard to one of absolute certainty. The alternative of prohibiting

imposition of economic sanctions absent production of relevant information also remains

available.

400. See supra notes 215-23, 301-08 and accompanying text.

401. See supra notes 22-26 and accompanying text.

402. See supra notes 141-47, 228-32, 318-25 and accompanying text.

488 WILLIAM & MARY LAW REVIEW [Vol. 63:407

perceived as legitimate, these choices strike at the very heart of

what the Excessive Fines Clause is designed to protect against.

403

light of the fact that the risk of harm to people against whom econo-

mic sanctions are imposed remains just as great as in the criminal

setting, requiring the government to prove proportionality beyond

a reasonable doubt is consistent with fundamental fairness. That

standard can serve an important symbolic function to the com-

munity at large: that the government shall not be allowed to engage

in “policing for profit,”

404

or to maintain “modern-day debtors’ pris-

on[s].”

405

As in the criminal context, it is within lawmakers’ power to avoid

the imposition of a beyond a reasonable doubt standard by choosing

to turn away from systems that make it so easy to abuse govern-

mental power. This includes the reforms noted above, as well as

additional reforms targeted at ensuring meaningful consideration

of excessive fines claims through the provision of counsel, and

through the reduction or elimination of fees to contest a forfeiture

along with other procedural hurdles.

406

And, of course, the govern-

ment may also avoid this higher standard by holding itself to the

burden of proving guilt beyond a reasonable doubt.

iv. Excessiveness of Restitution

Restitution paid to non-governmental victims is on a different

footing. The proposed assignment above would place the burden of

proof on the person against whom restitution is imposed to prove

the disproportionality of the restitution award in recognition of the

reduced risk of abuse in play when the penalty imposed accrues to

someone other than the government.

407

There are reasons, however,

to impose only a preponderance of evidence standard on this

403. See Timbs v. Indiana, 139 S. Ct. 682, 689 (2019).

404. See, e.g., L

ISA KNEPPER,JENNIFER MCDONALD,KATHY SANCHEZ &ELYSE SMITH POHL,

NST. FOR JUST., POLICING FOR PROFIT:THE ABUSE OF CIVIL ASSET FORFEITURE (3d ed. 2020).

405. Kate Gibson, Poor Defendants Say They Face Modern-Day Debtors’ Prison, CBS

EWS

(Aug. 23, 2016, 5:15 AM), https://www.cbsnews.com/news/poor-defendants-say-they-face-mod

ern-day-debtors-prison/ [https://perma.cc/9VEW-CD7H].

406. See supra notes 215-32 and accompanying text.

407. See supra Part II.D.3.a.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 489

question.

408

First, while the government has an interest in making

victims whole through restitution, the imposition of unmanageable

restitution does not make it forthcoming and may even undermine

victims’ needs by making the communities they live in less safe.

409

Further, by maintaining a focus on restitution assessed against peo-

ple convicted of crimes, lawmakers avoid the responsibility of crea-

ting systems that better address victim needs.

410

Second, restitution

carries with it the same very serious consequences for the person

against whom it is imposed and their innocent family members and

communities.

411

Taken together, these considerations support the

conclusion that the standard of proof should be that of a preponder-

ance.

412

But like the other assignments, reforms that lessen the risk

of harm against those upon whom restitution is imposed—the

elimination of punitive penalties for nonpayment, imposition of

additional punishments, and application of collateral consequences

upon conviction, for instance—could support the assignment of a

clear and convincing standard down the road.

* * *

At first glance, this combination of burdens on various issues may

raise questions of administrability, which—as noted above—is a

consideration relevant to establishing burdens of proof.

413

But each

component is determined separately; the financial effect of the

forfeiture of an automobile, for example, would be ascertained

independently from the overall examination of disproportionality,

which takes into account financial effect in conjunction with crime

facts, sentencing factors, and the dollar value of the total package

of economic sanctions.

414

Courts are already adept at this kind of

408. Again, should the government fail to meet its discovery obligations, it would be

appropriate to either prohibit the imposition of restitution until those obligations are met or

to reduce this standard further, for example to a probable cause standard. See supra note 369.

409. See supra notes 148-53 and accompanying text.

410. See Colgan, supra note 123, at 1558-65, 1579-80.

411. See supra Part II.A.2.

412. Cf. Colorado v. Connelly, 479 U.S. 157, 168-69 (1986) (assigning the burden of proof

to the prosecution but only by a preponderance, satisfying the need for deterrence without

overcorrecting in a way that would deprive juries of seeing probative evidence).

413. See supra note 157 and accompanying text.

414. See Colgan & McLean, supra note 32, at 443-49.

490 WILLIAM & MARY LAW REVIEW [Vol. 63:407

mixing of burdens, as is done when the prosecution seeks to supple-

ment evidence proven beyond a reasonable doubt at trial or through

a guilty plea with facts, such as prior criminal history, which are

proven under a preponderance of the evidence standard.

415

There

are more complex questions related to administrability when a sen-

tencing court imposes both fines, fees, or criminal forfeitures and

restitution, or other punishments with differing burdens and stan-

dards of proof, which are addressed below.

III. A

DDRESSING CASES INVOLVING MULTIPLE FORMS OF

PUNISHMENT

This Article has proposed a varying assignment of burdens and

standards of persuasion depending on the nature of the economic

sanction—differentiating between fines, fees, and forfeitures on the

one hand, and restitution on the other—as well as whether the

sanctions are imposed in criminal or civil proceedings. This raises

the question of whether it is feasible to employ those different bur-

dens in a single case in which multiple punishments are imposed.

This issue does not implicate the determination of financial effect,

which must be decided prior to conducting the excessiveness inquiry

because it helps establish the severity of the punishment.

416

The

issue also will not arise in cases involving minor offenses for which

the only available punishments are fines and fees, such as parking

or low-level traffic or ordinance violations.

417

But it would apply in

cases, for example, in which fines and fees are imposed in addition

to restitution, or in cases where economic sanctions are imposed in

addition to punishments challengeable under the Eighth Amend-

ment’s Cruel and Unusual Punishments Clause, such as execution,

incarceration, or probation.

418

Consider the following hypothetical: a statute sets the punish-

ment for a misdemeanor graffitiing of private property as restitution

and up to a $1,000 fine. The two forms of economic sanction are

inherently linked in the disproportionality analysis by the fact that

415. See supra notes 24-26 and accompanying text.

416. See supra notes 31-33 and accompanying text.

417. See Pimentel v. City of Los Angeles, 974 F.3d 917, 920 (9th Cir. 2020).

418. See Timbs v. Indiana, 139 S. Ct. 682, 686 (2019).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 491

there is only one underlying offense against which their collective

punitive severity must be measured:

Offense Seriousness Punishment Severity

Crime Facts re: Graffitiing of Property

[Sentencing Factors, if any]

Dollar Value of Restitution + Fine

Financial Effect of Restitution +

Fine

If the dollar value and financial effect of the restitution were

weighed against the offense’s seriousness separately from the dollar

value and financial effect of the fine, the government would im-

properly have two bites at the apple. It would allow the imposition

of restitution and a fine that may not be separately disproportionate

to the graffitiing, but collectively disproportionate. Therefore, as the

dollar value of either the restitution, the fine, or both increases, the

more disproportionate the punishment becomes to the act of graf-

fitiing.

419

That said, beginning the proportionality inquiry with a focus on

restitution can make the distinctions in burdens and standards of

persuasion in this scenario administrable. Assuming the Court

adopts the burdens and standards posited above, the defendant

would have the burden of proving the disproportionality of the res-

titution by a preponderance of the evidence, and the government

would hold the burden of proving the proportionality of the fine by

clear and convincing evidence.

420

The sentencing judge can manage

this distinction by beginning with the analysis of restitution; if the

defendant meets the burden of showing that the proposed compen-

sable amount is disproportionate to the offense, requiring the im-

position of a lower restitution award, then the government will

necessarily fail to show by any standard that an additional fine is

allowable.

421

If, in contrast, a court determines that the compensable

419. See State v. Timbs, 169 N.E.3d 361, 372-74 (Ind. 2021) (explaining that the

assessment of punishment severity included the challenge forfeiture of a vehicle and “other

sanctions imposed on Timbs” including “six years of restricted liberty as well as $1,200 in fees

and costs”).

420. See supra Part II.D.3.a.ii, iv.

421. See United States v. Bajakajian, 542 U.S. 321, 336-40 (1998); see also id. at 349

(Kennedy, J., dissenting) (“The majority affirms the reduced $15,000 forfeiture on de novo

review ... which it can do only if a forfeiture of even $15,001 would have suffered from a gross

492 WILLIAM & MARY LAW REVIEW [Vol. 63:407

amount is not grossly disproportionate to the offense, then the de-

fendant has not met his or her burden and the full restitution award

could issue.

422

The question then becomes whether the government

can meet its burden of showing that the addition of a fine on top of

the restitution amount remains proportionate to the offense.

423

This

ordering of the assessment has the benefit of prizing restitution over

the types of revenue-generating sanctions that raise the risk of

abuse the Clause is particularly intended to protect against.

424

We can also test the effects of combining competing burdens

between the Excessive Fines and Cruel and Unusual Punishments

Clauses by using a different hypothetical: a statute setting out the

punishments available for possession of a small quantity of nar-

cotics, for which the maximum term of incarceration is one year and

the maximum fine is $10,000.

To undertake this analysis we must begin with a few assump-

tions. The first assumption is that the Court has adopted the as-

signment of burdens and standards of persuasion posited herein—

for this hypothetical, the assumption is that the prosecution must

establish the proportionality of the fine by clear and convincing

evidence.

425

The analysis that follows also assumes that the Court

would require the defendant to prove gross disproportionality for

cruel and unusual punishments purposes by a preponderance of the

evidence. The Court has clearly placed the burden of persuasion on

the defendant, but to date has only described that burden in sen-

tencing cases as “heavy.”

426

It has, however, used that same term to

describe the preponderance standard in other settings,

427

and

adopted a preponderance standard in cruel and unusual punish-

ments cases challenging conditions of confinement.

428

This should

not be taken to suggest that this low standard puts a showing of

gross disproportionality well within the challenger’s grasp.

429

disproportion.”).

422. See id. at 336-40 (majority opinion).

423. See Pimentel v. City of Los Angeles, 974 F.3d 917, 925 (9th Cir. 2020).

424. See id.

425. See supra Part II.D.3.a.ii.

426. See Gregg v. Georgia, 428 U.S. 153, 175 (1976).

427. See Colorado v. Connelly, 479 U.S. 157, 185 (1986) (Brennan, J., dissenting).

428. See Crawford-El v. Britton, 523 U.S. 574, 594-95 (1998).

429. See Harmelin v. Michigan, 501 U.S. 957, 1003-04 (1991) (plurality) (opinion of

Kennedy, J.).

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 493

Rather, because the Court has shown such significant deference to

lawmakers’ authority in establishing nonfinancial punishments, the

burden can only be met if the defendant proves that it is more likely

than not that no rational basis for the punishment—whether re-

tributive or utilitarian—could exist.

430

Similar to the hypothesized imposition of restitution and a fine,

these punishments are linked in the disproportionality analysis by

the fact that there is only one underlying offense—possession of

narcotics:

Offense Seriousness Punishment Severity

Crime Facts re: Possession of

Narcotics

[Sentencing Factors, if any]

Dollar Value of Fine

Financial Effect of Fine

Term of Incarceration

Therefore, any approach to the application of these divergent bur-

dens and standards of persuasion must ensure that the collective

punishment—both economic and carceral—is not grossly dispropor-

tionate to the seriousness of the offense.

431

That the economic and carceral punishments are collectively

imposed against a single offense does not mean that their constitu-

tionality necessarily lives or dies with each other. Undergirding

these competing burdens is the extreme deference the Court has

afforded lawmakers in the cruel and unusual punishments con-

text and the suspicion with which it has approached lawmakers in

the excessive fines context.

432

Throughout the cruel and unusual

punishments doctrine, the Court has based its interpretations of

430. See id.

431. See supra note 419 and accompanying text; Weems v. United States, 217 U.S. 349, 366

(1910) (considering all aspects of the punishment of cadena temporal, including imprisonment

for at least twelve years, during which time the person was to be chained at the ankle and

wrist and subjected to “hard and painful labor,” the stripping of parental and marital rights,

and lifetime surveillance and restrictions, including the inability to vote); cf. Blanton v. City

of North Las Vegas, 489 U.S. 538, 543-45 (1989) (considering a period of incarceration and

other statutory penalties such as fines in assessing whether available punishments are

sufficiently serious to justify a right to a jury trial).

432. Compare Harmelin, 501 U.S. at 1003-04 (plurality) (opinion of Kennedy, J.) (deferring

to the state legislature because it “could with reason conclude” that petitioner’s crime

warranted the sentence imposed), with Timbs v. Indiana, 139 S. Ct. 682, 689 (2019)

(describing how lawmakers could abuse their ability to impose fines).

494 WILLIAM & MARY LAW REVIEW [Vol. 63:407

the Clause’s scope on considerable deference to lawmakers’ ability

to devise appropriate punishments for people found to have com-

mitted crimes.

433

As Justice Kennedy explained in the Harmelin v.

Michigan plurality, such decisions “implicate difficult and endur-

ing questions respecting the sanctity of the individual, the nature

of law, and the relation between law and the social order.”

434

And

while in adopting a gross, rather than strict, disproportionality test

the Bajakajian majority showed deference to lawmakers,

435

through-

out its excessive fines jurisprudence, the Court has repeatedly called

into question whether lawmakers will set financial punishments in

accord with penal principles or will rather act to secure tax-avoid-

ance.

436

In other words, a court may hold that imposing incarcera-

tion is constitutional while also finding that the use of a fine vio-

lates the core principles of the Excessive Fines Clause.

437

Further,

unlike in the cruel and unusual punishments setting, the inclusion

of the subjective consideration of financial effect in assessing the

severity of a fine gives a person challenging its constitutionality

more secure footing to argue that the fine, as applied in a particular

case, is constitutionally excessive.

438

Given the distinctions between the degree of deference, or lack

thereof, incumbent to the two clauses, and the structural distinction

of bringing the subjectivity of financial effect into the excessiveness

inquiry, it is appropriate for a court to begin by assessing the con-

stitutionality of the two forms of punishment separately under their

respective clauses. This does not, however, lend itself to the same

433. Harmelin, 501 U.S. at 998 (plurality) (opinion of Kennedy, J.).

434. Id.

435. United States v. Bajakajian, 524 U.S. 321, 336 (1998) (“[J]udgments about the ap-

propriate punishment for an offense belong in the first instance to the legislature.”).

436. See, e.g., Timbs, 139 S. Ct. at 689.

437. See Harmelin, 501 U.S. at 978 n.9 (plurality) (opinion of Scalia, J.). This distinction

between affording great deference in the cruel and unusual punishments context and sus-

picion in the excessive fines context is possible in part because the Court has to date treated

lawmakers’ decision-making about what constitutes a crime and whether execution, incar-

ceration, or community supervision are appropriate in a vacuum, rather than recognizing that

the very same lawmakers might be motivated to create or retain substantive criminal vi-

olations in part for their revenue-generating capacity. Whether grappling with the reality that

lawmakers may have multiple interests opens the door for reexamination of the Court’s

rational basis approach to the Cruel and Unusual Punishments Clause, however, is outside

of the scope of this Article.

438. See Colgan & McLean, supra note 32, at 443-49.

2021] THE BURDENS OF THE EXCESSIVE FINES CLAUSE 495

type of preference ordering suggested above for the restitution-fine

combination. In that situation, while it may be constitutionally ex-

cessive in some instances, restitution clearly runs a smaller risk of

offending the Clause’s core aims than fines, fees, and forfeitures,

and so prizing it in the disproportionality analysis makes sense.

439

That is not, however, the case in the fines-incarceration context

where the Court’s central understanding of the two clauses stand in

contradiction.

440

It is also not as simple as prizing financial punish-

ments over the more severe punishment of incarceration. While the

Court has generally understood there to be a hierarchy of punish-

ment severity, with fines ranking less severe than at least incarcer-

ation,

441

and while certainly a lengthy term of incarceration is a

more severe punishment than a small fine, it is not so clear that eco-

nomic sanctions are always less severe than other forms of pun-

ishment.

442

This is borne out, for example, by people who opt for jail

terms to “work off” economic sanctions in order to avoid the ongoing

financial precarity such debt creates.

443

Once separately assessed, however, it would be critical to engage

in an additional consideration: whether collectively the punish-

ments that survive the first stage of review are so severe that they

outweigh the underlying offense. If the answer is no, a court could

constitutionally impose both forms of punishment.

444

If the answer

is yes, a court would be required to adjust, reducing the economic

sanctions, the term of incarceration, or both.

445

A potential benefit of assigning disparate burdens and standards

of persuasion between economic sanctions and other forms of

punishment is that it requires courts to actually consider the nature

of the punishment and its multiple forms in a way that may not

occur if the sanctions were lumped together at the outset. More than

just sand in the gears, the approach ensures that the economic

sanctions imposed—which may otherwise be seen as mere add-ons

439. See Timbs, 139 S. Ct. at 689.

440. Compare Harmelin, 501 U.S. at 998 (plurality) (opinion of Kennedy, J.), with Timbs,

139 S. Ct. at 689.

441. See, e.g., Solem v. Helm, 463 U.S. 277, 294 & n.18 (1983).

442. See Colgan & McLean, supra note 32, at 443-49.

443. See supra note 189 and accompanying text.

444. See Solem, 463 U.S. at 290.

445. See id.

496 WILLIAM & MARY LAW REVIEW [Vol. 63:407

to a period of incarceration or other punishment—do not get lost in

the shuffle, but instead are understood as what they are: significant

aspects of punishment, with real perils to both citizen and state,

subject to the Clause’s protections.

ONCLUSION

Burdens of proof matter. They do more than tell the parties what

their obligations are and the decision maker how to decide—though

of course burdens serve those important purposes as well. Assigning

burdens provides us an opportunity to consider the incredible, and

even devastating, consequences economic sanctions pose in conjunc-

tion with the ways in which lawmakers have designed broad and

overlapping processes and structures of punishment. In doing so, we

are able to ensure that the burdens work to cabin governmental

overreach, thus reflecting societal values.

446

Once assigned, at sen-

tencing, articulating the various burdens of proof creates moments

for reflection on the severity of economic sanctions in and of their

own right, and in conjunction with other forms of punishment.

446. See In re Winship, 397 U.S. 358, 364 (1970) (holding that a beyond a reasonable doubt

standard is required for the guilt phase of juvenile trials because it is “critical that the moral

force of the criminal law not be diluted”); see also Cruzan v. Dir. Mo. Dep’t of Health, 497 U.S.

261, 283 (1990) (“But not only does the standard of proof reflect the importance of a particular

adjudication, it also serves as ‘a societal judgment about how the risk of error should be

distributed between the litigants.’” (quoting Santosky v. Kramer, 455 U.S. 745, 755 (1982))).