Should a Fine's "Excessiveness" Turn Partly on the Defendant's Wealth?

"For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood."

The discussion of our Excessive Fines Clause amicus brief led to a dispute: When deciding whether a fine is "excessive," should a court look at how hard it is for this defendant to afford it, or should it ignore the defendant's wealth and focus just on the other circumstances of the offense? I'm no expert on the subject, but I did want to mention that there is some historical authority for the can-defendant-afford-it view.

Most significantly, the Excessive Fines Clause seems to be based on the analogous provision of the Virginia Declaration of Rights, which in turn is based on the 1689 English Bill of Rights -- and that in turn seems to be based on Magna Carta, which in turn provided,,

For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein the implements of his husbandry, if they fall upon the mercy of a royal court.

This on its face turns on whether the defendant can afford to pay the fine without losing "his livelihood" or the essential tools needed to make a living.

Nor was this forgotten at the time of the Framing: Blackstone, for instance, who wrote in the 1760s and who has long been seen as immensely influential on the Framers, quoted that passage from Magna Carta alongside his discussion of the 1689 Bill of Rights, and characterized it as meaning "that no man shall have a larger amercement [i.e., fine] imposed upon him than his circumstances will bear." Blackstone added that, even in his time, "it is never usual to assess a larger fine than a man is able to pay," and also wrote that,

The quantum, in particular, of pecuniary fines neither can, nor ought to, be ascertained by any invariable law. The value of money itself changes from a thousand causes; and, at all events, what is ruin to one man's fortune may be matter of indifference to another's.

My colleague Beth Colgan has written at length about this in her Reviving the Excessive Fines Clause (pp. 330-36), also noting some Framing-era statutes that seem to fit the Magna Carta / Blackstone approach. As she notes, the evidence is mixed, and it's hard to know for certain exactly how the no-excessive-fines principle was understood. But there is at least serious historical support for the idea that the magnitude of a fine should take into account ability to pay.