CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, February 12, 2013

McLean on the Excessive Fines Clause

Nicholas M. McLean has posted Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause: Rediscovering the Eighth Amendment's 'Economic Survival' Norm (Hastings Constitutional Law Quarterly, Forthcoming) on SSRN. Here is the abstract:

Most modern courts that have been called upon to interpret and apply the Excessive Fines Clause of the Eighth Amendment have concluded that a fine or forfeiture can be unconstitutionally excessive only if it is grossly disproportionate to its associated offense. However, in light of its text, history, and purpose, the Excessive Fines Clause is appropriately understood as encoding both a proportionality principle and a further limiting principle linking penalties to the personal circumstances and economic status of the offender. This article seeks to address a significant and surprising gap in the extant literature by articulating and systematically developing an account of this second principle, known in traditional English law as salvo contenemento. This principle is properly understood as signifying an “economic survival” or “livelihood protection” norm inherent in Eighth Amendment jurisprudence.


An emerging academic literature has concluded that the practice of assessing criminal financial penalties without regard to offenders’ personal economic circumstances is both widespread and extremely harmful. Indeed, the burden of unpayable criminal justice debt can effectively destroy offenders’ capacity to reintegrate into society. I submit that such practices are not just bad policy, but may be properly seen as constitutionally infirm: a constitutional fines and forfeitures jurisprudence that reflected the original meaning of the Excessive Fines Clause would be significantly more sensitive to the plight of the indigent criminal defendant, and more conducive to the rehabilitative goals of the criminal law.

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