Archive for April, 2018

Compassion for Juveniles or Common Sense?

posted by Judge_Burke @ 14:30 PM
April 30, 2018

This post is from the Sentencing Law & Policy blog written by Professor Douglas Berman. But, before you read it, think of context. In recent years the United States Supreme Court has issued rulings regarding sentencing of juvenile offenders and the necessity to take into account their age. The Supreme Court of New Jersey handed down a lengthy unanimous opinion in Interest of C.K., No. A-15-16 (N.J. April 24, 2018) (available here) declaring that the state’s sex-offender registry law is unconstitutional as applied to some juvenile offenders.

Here is how the opinion begins:

Juveniles adjudicated delinquent of certain sex offenses are barred for life from seeking relief from the registration and community notification provisions of Megan’s Law. N.J.S.A. 2C:7-1 to -11, -19; N.J.S.A. 2C:7-2(g).  That categorical lifetime bar cannot be lifted, even when the juvenile becomes an adult and poses no public safety risk, is fully rehabilitated, and is a fully productive member of society.  Defendant C.K. was adjudicated delinquent for sex offenses committed more than two decades ago and now challenges the constitutionality of N.J.S.A. 2C:7-2(g)’s permanent lifetime registration and notification requirements as applied to juveniles.

Subsection (f) of N.J.S.A. 2C:7-2 subjects all sex offenders, including juveniles, to presumptive lifetime registration and notification requirements.  Unlike subsection (g), however, subsection (f) allows a registrant to seek relief from those requirements fifteen years after his juvenile adjudication, provided he has been offense-free and is “not likely to pose a threat to the safety of others.”  Subsection (g) imposes an irrebuttable presumption that juveniles, such as defendant, are irredeemable, even when they no longer pose a public safety risk and are fully rehabilitated.

The record in this case reveals what is commonly known about juveniles — that their emotional, mental, and judgmental capacities are still developing and that their immaturity makes them more susceptible to act impulsively and rashly without consideration of the long-term consequences of their conduct.  See State v. Zuber, 227 N.J. 422 (2017).  The record also supports the conclusion that juveniles adjudicated delinquent of committing sex offenses, such as C.K., who have been offense-free for many years and assessed not likely to reoffend, pose little risk to the public. Indeed, categorical lifetime notification and registration requirements may impede a juvenile’s rehabilitative efforts and stunt his ability to become a healthy and integrated adult member of society.

We conclude that subsection (g)’s lifetime registration and notification requirements as applied to juveniles violate the substantive due process guarantee of Article I, Paragraph 1 of the New Jersey Constitution. Permanently barring juveniles who have committed certain sex offenses from petitioning for relief from the Megan’s Law requirements bears no rational relationship to a legitimate governmental objective.  In the absence of subsection (g), N.J.S.A. 2C:7-2(f) provides the original safeguard incorporated into Megan’s Law: no juvenile adjudicated delinquent will be released from his registration and notification requirements unless a Superior Court judge is persuaded that he has been offense-free and does not likely pose a societal risk after a fifteen-year look-back period.

Defendant may apply for termination from the Megan’s Law requirements fifteen years from the date of his juvenile adjudication, and be relieved of those requirements provided he meets the standards set forth in N.J.S.A. 2C:7-2(f).


The Law of Standing & Animals

posted by Judge_Burke @ 14:30 PM
April 27, 2018

Several years ago I posted a piece about standing & elephants (found here). Now, from the 9th Circuit we have more law about animal rights and animal standing.

By Steven D. Schwinn

The Ninth Circuit ruled today that a monkey had Article III standing to sue for copyright infringement. But the court also ruled that the monkey lacked statutory standing under the Copyright Act, so dismissed the claim.

The case, Naruto v. Slater, arose when wildlife photographer David Slater left his camera unattended in a reserve on the island of Sulawesi, Indonesia, to allow crested macaque monkeys to photograph themselves. Naruto, one of the monkeys, did just that, and Slater published his picture in a book of “monkey selfies.” Naruto, through his next of friend PETA, sued for copyright infringement.

The Ninth Circuit ruled that Naruto had Article III standing. The court said that circuit precedent tied its hands–the Ninth Circuit previously ruled in Cetacean Community v. Bush that the world’s whales, porpoises, and dolphins could have Article III standing to sue, although they lacked statutory standing under the relevant environmental statutes–and went on to urge the Ninth Circuit to reverse that precedent.

But the court further held that Naruto lacked statutory standing under the Copyright Act, because that Act doesn’t permit a monkey to sue. It dismissed Naruto’s case on this ground.

The court ruled that PETA didn’t have next-of-friend standing, because it didn’t assert a relationship with Naruto, and because “an animal cannot be represented, under our laws, by a ‘next friend.’”


Inquiring about Jury Misconduct

posted by Judge_Burke @ 14:30 PM
April 26, 2018

There is a very good resource for judges interested in evidence as evidenced (no pun intended) by this recent post By Evidence ProfBlogger:

Federal Rule of Evidence 606(b) generally provides that jurors are not allowed to impeach their verdict, but subsection (2)(A) provides an exception allowing jurors to testify that “extraneous prejudicial information was improperly brought to the jury’s attention.” A recent case out of the Sixth Circuit shows how social media searches can support a claim that this exception applies.

In United States v. Harris, 881 F.3d 945 (6th Cir. 2018), Talman Harris was convicted of one count of conspiracy to commit securities fraud or wire fraud,  one count of obstruction of justice, and three counts of wire fraud.

On September 6, 2016, Harris received a notification from LinkedIn that other LinkedIn members had recently viewed his LinkedIn profile. Harris opened this email the next day, after the jury had returned its verdict. Shortly thereafter, Harris discovered that one of the persons who viewed his profile was Christian Goleno, a student at Youngstown State University, located in the city where Harris’s trial was conducted. The record is inconclusive regarding the exact date Goleno viewed Harris’s profile, but the September 12, 2016 LinkedIn profile-views-summary page indicates that it was sometime between August 28 and September 12, 2016. Harris’s trial began on August 24, and the jury was discharged on September 7, 2016.

Thereafter, Harris

discovered that Goleno’s Facebook profile featured pictures of her and a juror from Harris’s trial, Juror Number 12 (“Juror 12”), and Juror 12′s profile featured pictures of Goleno. The voir dire transcript confirmed that Goleno was Juror 12′s live-in girlfriend. Goleno and Harris had no personal connection, and Harris’s trial had received little publicity. Thus, Harris concluded that Juror 12 must have discussed the trial with his girlfriend. Harris surmised that Goleno had probably searched his name on Google because his LinkedIn profile was on the first page of search results. Information regarding FINRA’s investigation of Harris, which led to his permanent bar from FINRA, was also on the first page of Google results. The government was precluded from presenting evidence of this investigation during Harris’s trial.

As a result, Harris moved for a hearing to determine whether Juror #12 was exposed to extraneous prejudicial information. While the district court denied the motion, the Sixth Circuit disagreed, concluding that

Harris presented credible evidence that Goleno found his LinkedIn profile, likely from searching for him on Google. The first page of Google results also included prejudicial information that the government was precluded from introducing at trial. Although the district court admonished the jury not to discuss the case with others, under the circumstances here, it is quite possible that Juror 12 told Goleno about the trial, leading her to Google Harris and to potentially communicate her findings to her live-in boyfriend, Juror 12.

Although Harris did not establish that Juror 12 was exposed to unauthorized communication, Harris did present a colorable claim of extraneous influence, which necessitated investigation.


Rosario: Examining an intriguing rule change about bias in jury selection

By | | Pioneer Press

Bear with me here. Some columns require a prologue.

In a 1986 ruling about a Kentucky case, the U.S. Supreme Court found that the use of peremptory challenges by prosecutors to bounce potential jurors because of their race violated the equal protection clause under the 14th Amendment to the Constitution.

“The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community,” the court wrote in the Batson vs. Kentucky 7-2 decision. “Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.”

The ruling, however, led to a three-step standard before a challenge to ousting a prospective juror could be, well, successfully challenged, mostly by defense attorneys:

  1. The attorney challenging the peremptory juror strike must “make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.”
  2. The striking party, in most cases but not always the prosecutor, must “come forward with a race-neutral explanation for the challenge.”
  3. Lastly, the court, in this case the presiding judge, must “determine if the defendant has established purposeful discrimination.”

Problem solved, right?

Just a year later after the ruling, prosecutors in Georgia applied that three-step standard and survived challenges to kick all five black prospective jurors in the jury pool from a murder case involving a black defendant. The all-white jury later convicted the man and sentenced him to death.

In 2016, three decades later, the nation’s highest court, though with different justices on the bench, ruled that the challenges in that case were strictly based on race and should have been sustained. It ordered a new trial.

The justices found the cited reasons for eliminating the black jurors, in that case, were, essentially, bogus. One potential black juror was kicked off, according to a published report on the case, because “her age was close to the defendant. She was 34; the defendant was 19. A 21-year-old white man served on the jury with no objection from the prosecution.”

Fast-forward to earlier this month. In a rule change, the Washington state Supreme Court pretty much set aside the Batson standards and will now allow both sides in a criminal and civil case to challenge their counterparts “if they feel they are using improper bias in dismissing potential jurors,” according to a recent article in Colorlines, an online magazine. Moreover, the trial judge in that state will ultimately determine if “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.”

(Years after Batson) “a growing body of evidence shows that racial discrimination remains rampant in jury selection,” that state’s  ACLU chapter noted in a draft of the rule changes the court mostly adopted.  “In part, this is because Batson recognizes only ‘purposeful discrimination,’ whereas racism is often unintentional, institutional, or unconscious.”

The ACLU also noted that in over 40 cases since Batson, Washington appellate courts have never reversed a conviction based on a trial court’s erroneous denial of a Batson challenge.

“We conclude that our Batson procedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination.”

Terri Nelson, legal director for Minnesota’s ACLU chapter, applauded the rule change, which will go into effect statewide in Washington shortly. She believes it’s something Minnesota courts should emulate.

“Absolutely,” Nelson told me. “If we are ever going to address the inconceivable racial disparity in the criminal justice system, we need to look at implicit bias and what happens here in Minnesota.”

Veteran Hennepin County Judge Kevin Burke agrees that Washington’s decision could have beneficial effects throughout the country’s court system.

“Since Batson was decided there has been a steady expansion of the reasons judges have accepted in denying Batson challenges but more importantly we know far more about implicit bias,” said Burke, who has studied the effects of implicit bias and addresses it in his pretrial jury instructions.

“We also know there continues to be an unacceptable perception by communities of color that the criminal justice system treats people of color unfairly. It is simply wrong to suggest Minnesota has solved the problem or that doing more is not an imperative,” he added.

Mary Moriarty, who runs Hennepin County’s public defender office, agrees that intentional and implicit bias is a major concern, but she has some issues with the Washington decision as it affects the defense.

“It is problematic that the rule would be applied to defense counsel,” she explained in an email. “Our clients are on trial and they have a right, in my opinion, to remove whomever they want from the panel of jurors deciding their fate.

“Because of attorney-client privilege, we can’t explain to the court why our client wanted to remove a juror, nor should we have to reveal those discussions,” she added.

Yet, Moriarty believes the federal courts “are way ahead of us in Minnesota on implicit bias in the court system.”

She cited a 10-minute long video on unconscious bias that is used by the federal district court in Washington state. She has requested that Minnesota judges be allowed to show the video to jurors and others before trial, “but it’s been many months and I’ve heard nothing.”

Her Ramsey County counterpart, James Fleming, said this: “I do not assume just because a juror and client share the same race that makes them predisposed to acquit. In my practice most clients want people like them on the jury so absent a statement that disqualifies a juror outright I am looking for people of color who will understand my client’s circumstance.

“But I am not saying that a circumstance has not existed where a defense attorney may want to exclude a juror because of race,” he added. “I don’t agree with it, but the prosecution has the same right to object to the strike as I do when they strike a person (of) color. I think this is headed to everyone will be losing their strikes in jury selection.”

Washington County Attorney Pete Orput believes the Batson ruling and current Minnesota judicial statutes are more than adequate in addressing all forms of bias in jury selection.

“I’ve never had any big issues with Batson challenges,” Orput, a former criminal trial prosecutor, explained in an email. “I ran into Batson issues more for when the defense tries to strike all women or men such as in a criminal sex case. … Batson is a sensitive issue and gets policed closely in our courts, from my own experience.”

Ramsey County Judge George Stephenson has a different take.

He asked a room full of state and federal judges in Minnesota during a panel discussion on implicit bias a few years ago how many of them were former prosecutors. Dozens of hands went up. He then asked: “How many of you were taught or have heard that in selecting a jury in criminal cases, a prosecutor should strike jurors of color because they favor the defense?”

Dozens of hands started to go up, he recalled.

“Questioning a prosecutor’s challenge to a juror when you believe it is racially motivated is not an easy or comfortable thing for a judge,” Stephenson noted in an email. “It would be easier if you knew the attorney was a flat-out racist but I don’t know any prosecutors like that anymore. Most seem to be good, caring folks interested in protecting the community and doing a good job … it is jarring to them to be challenged on what we perceive as bias.”

He would like to see continuing dialogue on the topic of implicit bias as well as clearer rules or guidelines “that would make it less uncomfortable for judges who are uneasy questioning a prosecutor’s challenge.”

However, the Minnesota Supreme Court has had “no discussions here about changing any of our related rules,” said Kyle Christopher, a spokesperson for the state’s judicial branch. As long as that’s the case, what happened in the state of Washington this month just might stay in Washington for now.


Biases in Forensic Experts

posted by Judge_Burke @ 15:00 PM
April 24, 2018

Judges went to law school and few of us are scientists. But the issue of how judges approach science is of increasing interest in the judicial community. So, what about biases in forensic experts?


Biases in forensic experts

Forensic evidence plays a critical role in court proceedings and the administration of justice. It is a powerful tool that can help convict the guilty and avoid wrongful conviction of the innocent. Unfortunately, flaws in forensic evidence are increasingly becoming apparent. Assessments of forensic science have too often focused only on the data and the underlying science, as if they exist in isolation, without sufficiently addressing the process by which forensic experts evaluate and interpret the evidence. After all, it is the forensic expert who observes the data and makes interpretations, and therefore forensic evidence is mediated by human and cognitive factors. A U.S. National Research Council examination of forensic science in 2009, followed by a 2016 evaluation by a presidential panel, along with a U.K. inquiry into fingerprinting in 2011 and a 2015 guidance by the U.K. Forensic Science Regulator, have all expressed concerns about biases in forensic expert decision-making. Where does forensic bias come from, and how can we minimize it?

Forensic experts are too often exposed to irrelevant contextual information, largely because they work with the police and prosecution. Extraneous information—from a suspect’s ethnicity or criminal record to eyewitness identifications, confessions, and other lines of evidence—can potentially cause bias. This can give rise to conclusions that are incorrect or overstated, rather than what forensic decisions should be: impartial decisions, appropriately circumscribed by what the evidence actually supports. A consequence of cognitive biases is that science is misused, and sometimes even abused, in court. Not only can irrelevant information bias a particular aspect of an investigation, it often causes “bias cascade” from one component of an investigation to another and “bias snowball,” whereby the bias increases in strength and momentum as different components of an investigation influence one another. Bias also arises when forensic experts work backward: Rather than having the evidence drive the forensic decision-making process, experts work from the target suspect to the evidence.

These problems in forensic decision-making have been largely ignored by the courts, even though there are simple procedural and context management solutions at hand. Biases that arise from exposure to irrelevant contextual information can be minimized by case managers who ensure that only relevant information gets to the appropriate expert. By blinding experts to extraneous information, they only get the particulars that are appropriate for them to have. Bias cascade and bias snowball can be minimized by compartmentalization. For example, the person collecting evidence from a crime scene should not be the expert who analyzes that data in the laboratory. In that way, any exposure to extraneous information at a crime scene does not influence the subsequent analysis. Such measures to minimize bias are standard scientific practices and are commonly used in applied sciences, but forensic science has yet to fully adopt them in practice. Target suspect–driven bias could be minimized by tools such as Linear Sequential Unmasking (LSU), whereby experts are only exposed to the target suspect after they have fully analyzed and documented the actual evidence (such as latent fingerprints, DNA, handwriting, or bullet cartridges found at the crime scene).

A major obstacle in adopting such countermeasures is that many forensic experts have a “bias blind spot” to these implicit biases and therefore tend to deny their existence. Forensic experts frequently present their decisions to the court with great confidence and then incorrectly take the court’s acceptance of their findings as confirmation that they have not been biased or made a mistake. Acknowledging that bias can influence forensic science experts would be a substantial step toward implementing countermeasures that could greatly improve forensic evidence and the fair administration of justice.

If we want science to serve society, then it must be properly used in the halls of justice.


Does Sessions v. Dimaya Apply in Cases You Decide?

posted by Judge_Burke @ 18:53 PM
April 23, 2018

Sessions v Dimaya is in one sense a Supreme Court decision that can be viewed as narrow. It is a deportation case…but, it may well raise far more profound issues in state and federal courts.

The Sessions case, relying upon Johnson v. United States, 559 U. S. 133, found the language of the immigration statute void for vagueness. The decision was split. Justice  Kagan delivered the opinion of the Court in Sessions v. Dimaya with respect to certain parts and was joined by Justices Ginsburg, Breyer, and Sotomayor as to others. Justice Gorsuch concurred in part and concurred in the judgment. Chief Justice Roberts filed a dissenting opinion, joined by Justices Kennedy, Thomas, and Alito. Justice  Thomas also filed a dissenting opinion, joined in part by Justices Kennedy and Alito.

So, is the case applicable to what you do? Perhaps if what happens next is lawyers will begin to raise issues about void for vagueness claims to more statutes.



Stop & Frisk

posted by Judge_Burke @ 17:14 PM
April 16, 2018

If you were fortunate enough to attend the American Judges Association Annual Conference in Cleveland last fall you got the chance to see the courthouse where Terry v. Ohio began. The case, as you know, eventually ended up in the United States Supreme Court. Aside from the legal issue, an historical aside was the case was the first time the lawyers for both sides were black. But, now for today.

Evaluating the validity of stop and frisk is what many judges do and it is not always easy. David Rudovsky and David A. Harris (University of Pennsylvania Law School and University of Pittsburgh – School of Law) have posted Terry Stops-and-Frisks: The Troubling Use of Common Sense in a World of Empirical Data (Ohio State Law Journal, Forthcoming) on SSRN.

Here is the abstract:

The investigative detention doctrine first announced in Terry v. Ohio and amplified over the past fifty years has been much analyzed, praised, and criticized from a number of perspectives. Significantly, however, over this time period commentators have only occasionally questioned the Supreme Court’s “common sense” judgments regarding the factors sufficient to establish reasonable suspicion for stops and frisks. For years, the Court has provided no empirical basis for its judgments, due in large part to the lack of reliable data. Now, with the emergence of comprehensive data on these police practices, much can be learned about the predictive power of suspect conduct and other predicates for law enforcement interventions. And what has been learned calls into question a number of factors that have been credited over many years.

No observer of the legal system can fail to notice the growing role of data and empirical analysis in the courts. A disparate set of cases have turned in large part on rigorously analyzed data. Yet this trend has not taken root in an important set of cases involving the widely used practice of stop-and-frisk. When stop-and-frisk practices become the subject of litigation, courts generally either have no data to review or have failed to engage in empirical analysis of the data that are available and which could be used to test the claims of reasonable suspicion. Rather, the courts invoke the conventional wisdom that as a matter of common sense certain conduct, for example, furtive movement, flight, bulges in clothing, and suspect location, indicates criminal conduct.

We have no argument with common sense propositions; we have no aversion to clear, straightforward thinking. But what this phrase often reflects is a set of unexamined (even if widely held) assumptions. The proliferation of data on these basic questions provides the means for empirical analysis, and it is our argument that courts should do so in assessing reasonable suspicion factors in the same manner that they have engaged in empirical judgments, using both big and targeted data, in other areas.


From the Legally Weird Blog

posted by Judge_Burke @ 14:30 PM
April 12, 2018

200 Roosters Held in Arkansas Jail Evidence in Cockfighting Case

By Molly Zilli, Esq.

What do you do when you have to keep hundreds of roosters as evidence of a crime? Put ‘em in jail. That’s what one Arkansas sheriff decided to do after arresting over a hundred people suspected of participating in cockfighting. Now a court will have to decide what to do with the jailbirds while neighbors put up with the noise.

Continue reading 200 Roosters Held in Arkansas Jail Evidence in Cockfighting Case .


Thinking About Juries

posted by Judge_Burke @ 15:00 PM
April 11, 2018

Richard Jolly (New York University (NYU), School of Law – Civil Jury Project) has posted The New Impartial Jury Mandate (117 Michigan Law Review _ (2019 Forthcoming)) on SSRN.

Here is the abstract:

Impartiality is the cornerstone of the Constitution’s jury trial protections. Courts have historically treated impartiality as procedural in nature, meaning that the Constitution requires certain prophylactic procedures which secure a jury that is more likely to reach verdicts impartially. But in Peña-Rodriguez v. Colorado, 137 S.Ct. 855 (2017), the Supreme Court recognized for the first time an enforceable, substantive component to the mandate. There, the Court held that criminal litigants have a Sixth Amendment right to jury decisions made without reliance on extreme bias, specifically on the basis of race or national origin. The Court did not provide a standard for determining when evidence of partiality is sufficient to set aside a verdict, but made clear that an otherwise procedurally adequate decision may fall to substantive deficiencies.

This Article advances a structural theory of the Constitution’s Impartial Jury Mandate, focusing on the interplay between its ex-ante procedural and ex-post substantive components.

The Article argues that the mandate has traditionally taken shape as a collection of procedural guarantees because of a common law prohibition on reviewing the substance of jury deliberations. Pena-Rodriguez tosses this constraint, allowing judges for the first time to review the rationales upon which jurors base their verdicts. The Article then offers a novel approach for applying substantive impartiality more broadly by looking to the Equal Protection Clause’s tiers of scrutiny. It concludes that ex-ante procedural rules and ex-post substantive review can operate in conjunction to tease out undesirable, impermissible forms of jury bias, while still allowing for desirable, permissible forms of jury bias.


Excessive Fines

posted by Judge_Burke @ 16:06 PM
April 10, 2018

Anatole France once said, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” Now, Beth A. Colgan (University of California, Los Angeles (UCLA) – School of Law) has posted The Excessive Fines Clause: Challenging the Modern Debtors’ Prison (UCLA Law Review, Vol. 65, No. 2, 2018) on SSRN.

Here is the abstract:

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 debt from unmanageable economic sanctions.

A separate, albeit underdeveloped, constitutional provision that may be better suited to addressing 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.