Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause

Nicholas M. McLean

Yale University

February 1, 2013

Hastings Constitutional Law Quarterly, Vol. 40, 2013

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 can appropriately be understood as encoding both a proportionality principle and a further limiting principle linking financial 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. I suggest that this principle is properly conceptualized as an “economic survival,” or “livelihood protection,” norm inherent in Eighth Amendment jurisprudence.

A growing scholarly literature suggests that the practice of assessing criminal financial penalties without regard to offenders’ personal economic circumstances is both widespread and harmful. Indeed, a number of authors have argued that the burden of unpayable criminal justice debt can effectively destroy offenders’ capacity for reintegration into society. Such practices are not only open to criticism on a policy level, however, but may properly be seen as constitutionally infirm: a 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.

An Ohio intermediate appellate court of appeals case, Crain v. Crain, 2012-Ohio-6180, reverses a contempt judgement in which counsel was denied. Richard Zora recently wote about the Ohio decision:

“The defendant had been found in civil contempt for failure to make child support payments, and had been refused an explicit request for counsel, with the magistrate purportedly relying on Turner as follows:

One thing I’m going to tell you, I’m going to deny your request for

counsel at this time.    There’s a recent U.S. Supreme Court decision that came down on contempt citations regarding child support, and the decision of the justices is that obligors that are facing jail time in civil contempts are not entitled to court appointed counsel. So we’ll proceed today without Court appointed counsel * * *. Crain at 3.

The Ohio Court of Appeals corrected this misreading of Turner as follows:

[W]hile Turner does not categorically require counsel to be appointed for persons facing criminal contempt convictions for nonpayment of child support, a reading of the opinion demonstrates that neither does it categorically require, as stated by the magistrate, the denial of appointed counsel. Instead, a court must determine whether there are procedural safeguards in place that adequately protect the obligor.    There was no such determination in this case. Crain at 5.

Aside from the unfortunate reference to “criminal contempt,” to which, of course, Turner does not apply, this is a powerful statement of the requirement that a court assess the sufficiency of the “procedural safeguards in place [to] .  .  . protect the obligor.”

The opinion goes further, however, excusing the lack of procedural objection to the ruling, both because the error is “plain and structural” and, in a comment of more general use outside the state, “In fact, the need to preserve error at the magistrate’s hearing by objecting to the magistrate’s decision is something that a layperson

would not be expected to know without the assistance of counsel.” Crain at 9.

The opinion also correctly distinguishes Turner based on the facts that this case was brought by the state, and that counsel appeared for the state. Crain at 5.

The case might have been somewhat complicated by an unusual statutory structure — but the Court really did not rely on that.

It’s a strong and clear decision.”

For followers of the United States Supreme Court there is a unique feature of the SCOTUS blog: The Petition of the Day. Recently sighted was Chappell v. Phillips.

The issue in the case is whether the Ninth Circuit conflicted with the “reasonable likelihood” materiality standards of Napue v. Illinois and Brady v. Maryland by substituting a standard based on “any conceivable, speculative possibility” of a different result. The case involved a claim that  the prosecution’s failure to reveal that a key prosecution witness received significant benefits in exchange for her testimony after the witness falsely testified she had been promised no such benefits, coupled with the prosecutor’s false representation to the jury that there was no agreement promising such benefits, violated his due process rights. The 9th Circuit opinion is an interesting read to show a case where prosecutors failed to follow the mandate of Brady.

Debra Milke was a celebrated villain of 1989, a woman accused and convicted of dressing up her 4-year-old son to see Santa Claus and, instead, sending him off to be shot execution-style in a desert wash.

She is one of three women on Arizona’s death row. A three-judge panel of the 9th U.S. Circuit Court of Appeals threw out her death sentence and murder conviction because the trial court refused to let her introduce evidence that might have discredited her supposed confession.

The Phoenix police detective who claimed Milke confessed to him had a history of lying to grand juries and extracting confessions even from unconscious suspects on hospital gurneys, according to the court opinion. There were no witnesses to the confession, and it was not recorded. Milke denied she ever confessed.

The 9th Circuit asked the U.S. District Court to send the case to the Arizona court system for a new trial and ordered that the detective’s personnel files be made available for Milke’s defense.

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/14/07-99001 web – corrected.pdf

This posting is written by a professor who perhaps understandably has asked not to reveal his or her name……rumor has it that the TSA regularly reads the AJA blog.

I wanted to share with you a post I sent somewhere else.

 

As a lawyer I have been lobbying (through legal publications) in my country for a better and stricter legal framework for body searches by the police, other forces and prison officers, in the latter case with some success.

When I started publishing on this subject in 2001, it was frowned upon. Yet not a single criminal lawyer had ever questioned the legal rules applying to strip searches and other forms of searches, despite the fact that they allowed total discretionary power over people. A total scandal.

I was already sensitive to the extreme violation of a person’s intimacy and dignity inherent to body searches and this had started when I was doing my PhD and heard inmates saying they preferred not to have visitors or skipped visitations because they could not bear the systematic strip search that followed anymore.

 

Since I have started needing a wheel chair in airports – I have a degenerative joint illness and cannot stand in a queue or go up/down stairs anymore – I too have started being a victim of body searches. Every single time I go to an airport, I mean EVERY SINGLE TIME I am singled out and frisk searched (sometimes real real long and insistant). Last time I was in Romania, I got a ‘follow us Mam’, got locked in a room with two custom officers who searched me with a vengeance and when I was ‘released’ I had tears in my eyes and it took me a long hour, phone calls to my loved ones and friends aplenty to fight them off and calm down. Assume that I don’t look the part – according to these people’s expectation of what a ‘crippled person’ should look like. I supposed I should look older and drool and add a little bit of the old Tourette syndrome or something.

I feel humiliated every single time. Being in a wheel chair AND being singled out … well ladies and gents I understand why being black or coloured and being systematically stopped by the police hurts and puts you in anger mode when it is repeated again and again. I shan’t turn into a criminal. Lucky I am an academic and can try and intellectualise. It does not stop hurting and being humiliating though and to feel extremely angry.

 

The US Supreme Court, in a decision written by Justice Scalia, ruled recently that if police enter a citizen’s curtilage in order to have a dog sniff for potential drugs in the house the police have violated the 4th Amendment because they are outside of the scope of the implied invitation to walk to the door and knock in order to contact the citizen living there.  Florida v. Jardines, the case  a 5-4 decision is a very interesting read if for no other reason than the split among the court. Justice Elena Kagan issued a concurring opinion, in which Justices Ruth Bader Ginsburg and Sonia Sotomayor joined. Justice Samuel A. Alito, Jr. issued a dissenting opinion, in which Chief Justice John G. Roberts, Jr. and Justices Anthony M. Kennedy and Stephen G. Breyer joined. You can access the oral argument via this link.  But the best quote of the case is:

“To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police.”

Published by The Reporter

The old saying that justice delayed is justice denied is more relevant than ever in California’s court system.

In her recent State of the Judiciary speech, California Chief Justice Tani G. Cantil-Sakauye passionately spoke about ongoing cuts and how they imperil the basic right that all Americans get a fair chance in court.

“To have your day in court, you need a courtroom,” she said. “And I must say that what we once counted on, that courts would be open and ready and available to deliver prompt justice, is no longer true in California.”

State budget deficits and subsequent cuts to court funding across the state have left many courtrooms closed, services reduced or eliminated, and a backlog of cases that continues to grow. Solano County has not been immune, with reduced civil and criminal clerk office hours, furloughs and a growing backlog in civil court.

In California, the courts receive about 1 percent of the state General Fund. In the past, it was traditionally about 2 percent. In dollars, that means the courts have taken about a $1 billion cut in the past five years.

On top of that, courts are now required to reduce local reserves to 1 percent of the annual state allocation. In Solano County, that means a fund balance of slightly more than $2 million will be reduced to less than $100,000 in fiscal 2014-15, according to Court Executive Officer Brian Taylor. One computer system crash or other unexpected funding emergency would wipe that

out.

Cantil-Sakauye has urged Gov. Jerry Brown to restore some judicial funding with new revenue being generated as a result of Proposition 30, the ballot initiative that increased state sales and income taxes.

Instead, the governor has proposed a $200 million reduction, expects the courts to make up the difference by dipping into reserves and includes another monumentally bad idea: to have a $10-per-file service fee. In other words, access to court files would be free only for people directly involved in a case. Journalists, investigators and other citizens wanting to do research or simply follow a case would be charged an arbitrary and excessive fee. This would throw the idea of transparency out the window, or at least provide it only to those who can afford to pay. It’s a desperation move and a step backward that should be rejected.

Better hope for getting the wheels of justice turning again lies with a working group of judges that has been meeting to develop a new funding model for the state court system.

Judges have historically complained that the current model leaves some counties underfunded and gives too much to others. The working group is looking at a model that would take into account the complex nature of filings in each county court, as well as labor statistics on local government employee wages and unique factors for each court, such as high numbers of particular types of cases.

The group is expected to present its full plan to the Judicial Council in April.

These two items appeared the same day in the Law blog. http://blogs.wsj.com/law/

The first is a story from North Carolina about how legislators there are seeking to make obtaining a divorce more difficult.

N.C. Lawmakers Propose Two-Year Waiting Period Before Divorce

 

By Jacob Gershman

 

“Married couples in North Carolina who want to untie the knot would have to wait at least two years before filing for divorce, according to a new legislative proposal.

A trio of North Carolina state senators last week introduced what they called the “Healthy Marriage Act,” which would double the state’s current one-year waiting period.

During those two years, according to the bill, couples wouldn’t have to live apart. But North Carolina would require that they participate in workshops on communication and conflict-resolution.

The two-year clock starts after a spouse seeking divorce gives a written notice of intent to file for divorce.”    But just in case you are worried that there are people who might languish in a marriage doomed to be eventually broken up there is a second story on a new software to assist couples in getting legally rid of their spouse.

 

The Next Frontier of Technology: Making Divorce Easier

 

By Matthew Lynley

Even the divorce process is getting easier thanks to technology.

Meet Wevorce, a startup coming out of esteemed startup “school” Y Combinator. It’s an online service that breaks the process of getting a divorce into discrete steps that are easily managed without having to get into a messy court battle.

Here’s how it works: The process identifies a couple as being a certain “archetype” (there are 18 total) and then walks through the process of the divorce step-by-step. It covers not only the financial and legal components, but the stickier issues like handling emotions and how to set up an amicable co-parenting situation

Jack Clark is stepping down as the court administrator in Los Angeles. Clark is among the nation’s most able court administrators so he will be a very hard act to follow. But there is of course more than the challenge of following someone who excelled at their job.

The Los Angeles County Superior Court recently announced plans to eliminate 511 positions by June in a sweeping cost cutting effort to close an $85 million dollar budget shortfall by the beginning of the next fiscal year.

The Presiding Judge, David Wesley, said all of the cuts are necessary. Including cuts made over the past four years, the court has lost 24 percent of its employees. Meanwhile the workload continues to increase.

Nearly 50 judges and staff spent 5 months coming up with a cost-cutting plan. This involved caseload analysis, study of court facilities and discussions with attorneys and stakeholders. The cuts will result in court closures, higher court fees and longer waits for cases to be heard.

During the State of the Judiciary speech to state legislators this year, Chief Justice Tani Cantil-Sakauye pleaded with lawmakers to restore some of the funding. She stated that our court system, which is the largest in the country, is facing a “crisis in civil rights” because of the cuts. Applications for Clark’s position are still available.

 

From the Los Angeles Times

There is a new research study that was released that examines factors that help explain why an innocent defendant may end up erroneously convicted rather than released. The study was led by Jon Gould of American University and was funded by the National Institute of Justice. The study looked at 460 erroneous convictions and “near misses,” in which “factually innocent” defendants were released or acquitted post-indictment. The full study can be found at: https://ncjrs.gov/pdffiles1/nij/grants/241389.pdf.

Factors that led to a wrongful conviction instead of an acquittal included:

•             A younger defendant

•             A criminal history

•             A weak prosecution case

•             Prosecution withheld evidence

•             Lying by a non-eyewitness

•             Unintentional witness misidentification

•             Misinterpreting forensic evidence at trial

•             A weak defense

•             Defendant offered a family witness

•             A “punitive” state culture

Here is the abstract of the study:

The last thirty years have seen an enormous increase not only in the exonerations of innocent defendants but also academic scholarship on erroneous convictions. This literature has identified a number of common factors that appear frequently in erroneous conviction cases, including forensic error, prosecutorial misconduct, false confessions, and eyewitness misidentification. However, without a comparison or control group of cases, researchers risk labeling these factors as “causes” of erroneous convictions when they may be merely correlates. This article reports results from the first large scale empirical research project to compare wrongful convictions with other innocence cases in which the defendant escaped conviction (so-called “near misses”). Employing statistical methods and an expert panel, the research helps us to understand how the criminal justice system identifies innocent defendants in order to prevent erroneous convictions. In another first, the research secured the cooperation of practitioners from multiple sides of the criminal justice system, including the national Innocence Project, the Police Foundation, the Association of Prosecuting Attorneys, and the National District Attorneys Association. The results highlight ten factors that distinguish wrongful convictions from near misses, but the larger story is one of system failure in which the protections of the criminal justice system operate in a counterintuitive manner. The article closes with a series of policy reforms to address these failings.