California Law Review Vol. 102 April 2014 No. 2 Copyright © 2014 by California Law Review, Inc., a California Nonprofit Corporation Reviving the Excessive Fines Clause Beth A. Colgan* Millions of American adults and children struggle with debt stemming from economic sanctions issued by the criminal and juvenile courts. For those unable to pay, the consequences— including incarceration, exclusion from public benefits, and persistent poverty—can be draconian and perpetual. The Supreme Court has nevertheless concluded that many of these concerns lie outside the scope of the Eighth Amendment’s Excessive Fines Clause. In interpreting the Clause, the Court relied upon a limited set of historical sources to restrict “fines” to sanctions that are punitive in nature and paid exclusively to the government, and to define “excessive” as referring to—either exclusively or primarily—the proportionality between the crime’s gravity and the amount of the fine. This Article takes the Court at its word by assuming history is constitutionally relevant, but it challenges the Court’s limited use of history by providing the first detailed analysis of colonial and early American statutory and court records regarding fines. This robust historical analysis belies the Court’s use of history to announce Copyright © 2014 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Thomas C. Grey Fellow at Stanford Law School. Thanks to Albertina Angtonini, Barbara Babcock, William Baude, Nathan Chapman, George Fisher, Jeffrey Fisher, Andrew Gilden, Todd Haugh, Nathan Hoffman, Thea Johnson, Kaipo Matsumura, Joan Petersilia, Zachery Price, Briana Rosenbaum, Meghan Ryan, Norman Spaulding, Derek Webb, Robert Weisberg, and the participants in the Stanford Fellows Workshop for their invaluable insight and generosity of time, and to Zachery Morris for his research assistance. This project would not have been possible without the Stanford Law librarians, in particular the extraordinary Rachael Samberg. 277 278 CALIFORNIA LAW REVIEW [Vol. 102:277 historical “truths” to limit the scope of the Clause, by showing significant evidence that contradicts those limitations. The Article uses the historical record to identify questions regarding the Clause’s meaning, to assess the quality of the historical evidence suggesting an answer to such questions, and then to consider that evidence— according to its value—within a debate that incorporates contemporary understandings of just punishment. Under the resulting interpretation, the historical evidence articulated in this Article would support an understanding of a “fine” as a deprivation of anything of economic value in response to a public offense. “Excessive,” in turn, would be assessed through a broad understanding of proportionality that takes account of both offense and offender characteristics, as well as the effect of the fine on the individual. The proposed interpretation more faithfully reflects the history and its limitations, and broadens the Clause’s scope to provide greater individual protections. Introduction ..................................................................................................... 279 I. The Breadth and Consequences of Contemporary Economic Sanctions ............................................................................................. 284 A. Common Types of Economic Sanctions ......................................... 285 B. Collateral Consequences ................................................................. 290 II. Refuting the Existing Excessive Fines Doctrine ................................. 295 A. “Fines”: The “To a Sovereign” Limitation ..................................... 300 B. “Fines”: The “Punitive Penalties” Restriction ................................ 310 1. Nomenclature ........................................................................... 311 2. Use as Punishment ................................................................... 313 3. Collection Methods .................................................................. 317 C. “Excessive” ..................................................................................... 319 1. Offense and Offender Characteristics ...................................... 324 2. The Effect of Fines................................................................... 330 3. Proportionality Considerations in Action ................................ 335 III. Breathing Life into the Excessive Fines Clause .................................. 337 A. Method of Reinterpretation ............................................................ 337 B. Reinterpreting the Clause ................................................................ 340 1. Fines ......................................................................................... 340 2. Excessive ................................................................................. 343 C. Additional Considerations .............................................................. 347 2014] REVIVING THE EXCESSIVE FINES CLAUSE 279 INTRODUCTION Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Eighth Amendment, United States Constitution Fourteen-year-old Natasha Tucker and a friend got into a fight over an iPod.1 Natasha threw a rock through the friend’s living room window during the squabble. In response, the State of Washington charged Natasha with two felony offenses: residential burglary and malicious mischief. Natasha agreed to plead guilty in exchange for a deferred disposition—a suspended sentence through which a juvenile agrees to participate in community supervision for a period of time that, if successfully completed, results in a dismissal of the action without an ultimate finding of delinquency.2 The court ordered the following terms for her supervision: “40 hours of community service, counseling, mandatory school attendance, residency requirements and curfew, a prohibition on drugs and alcohol, and restitution in the amount of $2,630.40, payable at a minimum rate of $10.00 per month.”3 Over the next two years, Natasha complied in full with all of the nonmonetary terms of her supervision. During that time, her mother, the sole breadwinner for the family, received a cut in her hours at work. As a result, Natasha’s mother had difficulty paying for the family’s basic needs and was unable to contribute much, if anything, toward her daughter’s restitution sanction. For part of the supervision period, Natasha held a part-time job and paid $235 toward the debt, “just $5 shy of the amount owed at the minimum rate of $10 per month.”4 Because Natasha was unable to pay for the entirety of the restitution, however, the State moved to revoke Natasha’s supervision. The court revoked her deferred sentence and found her delinquent.5 Across the country, Nivardo Carela-Tolentino, a thirty-six-year-old husband and father of five living in Pennsylvania, was arrested with 188 grams of cocaine.6 A first-time offender with only an eighth-grade education, Mr. Carela-Tolentino admitted to the court that he suffered from a drug addiction and testified that he had purchased the cocaine to share with one other person. He ultimately pled guilty to a drug offense. The relevant sentencing statute prevented the trial court from considering the specifics of his situation or how 1. Unless otherwise noted, all facts detailed here regarding Natasha’s case are available at State v. N.S.T., 232 P.3d 584, 586 (Wash. Ct. App. 2010). 2. WASH. REV. CODE ANN. § 13.40.127 (West 2004). 3. N.S.T., 232 P.3d at 586. 4. Id. 5. Natasha’s delinquency was later reversed due to a technicality—the State’s failure to timely request the revocation. See State v. Tucker, 246 P.3d 1275, 1275–76 (Wash. 2011). 6. Unless otherwise noted, all facts detailed here regarding Mr. Carela-Tolentino’s case are available at Commonwealth v. Carela-Tolentino, 48 A.3d 1221 (Pa. 2012) or Brief for Appellant at 8–9, Commonwealth v. Carela-Tolentino, 48 A.3d 1221 (Pa. 2012) (No. 41 MAL 2011). 280 CALIFORNIA LAW REVIEW [Vol. 102:277 an economic sanction might affect his family’s well-being. The trial court assessed the mandatory minimum fine required under Pennsylvania law: $25,000. Nearly 250 years before these courts imposed economic sanctions on Natasha and Mr. Carela-Tolentino, the revered common law theorist William Blackstone discussed the right to be protected against the imposition of excessive fines, explaining that when assessing fines, courts must consider “[t]he age, education, and character of the offender; the repetition (or otherwise) of the offence; the time, the place, the company wherein it was committed; all these, and a thousand other incidents may aggravate or extenuate the crime.”7 Yet neither court considered even one of these factors—not Natasha’s age or her family’s inability to pay the restitution sanction, not Mr. Carela- Tolentino’s addiction, his lack of a criminal record, or his need to support his children—in holding them accountable for their fines. This is not to say that the courts were entirely blind to the predicament the fines created. At the hearing in which the Washington court revoked Natasha’s suspended sentence, the juvenile court judge remarked: You did everything that you were asked to do with the exception of the financial obligations. So, you should feel proud of the fact that you completed those community service