In recent years, the use of economic sanctions—statutory fines, surcharges, administrative fees, and restitution—has exploded in courts across the country. Economic sanctions are imposed for violations as minor as jaywalking and as serious as homicide, and can range from a few dollars to millions. When a person is unable to immediately pay off economic sanctions, “poverty penalties” are often imposed, including interest and collections fees and probation. Failure to pay economic sanctions can result in serious consequences, including prohibitions on obtaining or suspensions of driver’s and occupational licenses, restrictions on public benefits, and even incarceration. Even when poverty penalties are not employed, an inability to pay off criminal debt means that the punishment imposed, even for very minor offenses, can effectively be perpetual. Desperate to avoid these repercussions, people go to extremes to pay. In an alarming number of cases people report having to forego basic necessities like food, housing, hygiene, or medicine, in order to pay what little they can, even if just a few dollars at a time. These and countless other stories of people trapped in persistent debt are becoming ubiquitous, and have raised the specter that current practices amount to modern day debtors’ prisons.
Constitutional challenges to such practices have primarily focused on the narrow window of the post-sentencing collections context, relying on a series of Fourteenth Amendment cases prohibiting the automatic conversion of economic sanctions to incarceration where a debtor has no meaningful ability to pay. While these challenges can provide an important post-hoc protection against the use of incarceration as a penalty for the failure to pay, they do not address the financial instability exacerbated by and ongoing threat of incarceration raised by ongoing debt from unmanageable economic sanctions.
A separate, albeit under-developed, constitutional provision that may be better suited to the debtors’ prison crisis lies in the Eighth Amendment’s Excessive Fines Clause, which provides protection at sentencing. To date, the United States Supreme Court has only determined that criminal and civil forfeitures constitute fines. This Article examines the key concerns underlying those determinations, explicating the Court’s interest in treating economic sanctions as fines where they are used by the government to punish—evidenced by a link to prohibited conduct or treatment of economic sanctions like other recognized forms of punishment—as well as the Court’s desire that the Clause serve as a bulwark against the risk that the prosecutorial power will be abused due to the revenue generating capacity of economic sanctions. Applying these core concerns supports the conclusion that common forms of economic sanction (including statutory fines, surcharges, administrative fees, and restitution) constitute fines for purposes of the Clause.
In addition, this Article examines the meaning of excessiveness, arguing that one’s ability to pay is relevant to the question of whether a fine is constitutional. The Court has adopted the Cruel and Unusual Punishments Clause’s gross disproportionality test for measuring excessiveness. Attending to financial circumstances in the excessiveness inquiry is in harmony with key principles animating the proportionality doctrine: equality in sentencing, comparative proportionality between offenses of different seriousness, the expressive value of punishment, concern for the criminogenic effect of and other social harms caused by punishment, and the prohibition on punishments that unreasonably infringe on human dignity.