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 Volokh Conspiracy |

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.

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  1. It seems that the Magna Carta quote only places one upper limit on fines – that they shall not deprive someone of his livelihood. Otherwise, they shall be in proportion to the degree of offence. Your other quotes agree. I do not see how these rules cannot be both applied simultaneously.

    Is there any historical evidence for fines that were based on the wealth of the criminal, rather than on his crime?

    1. ” I do not see how these rules cannot be both applied simultaneously.”

      I have no idea if this was ever considered in historical practice, but there is no technical reason that fines couldn’t be set as a percentage of either income or net worth.

      I would think that would apply both principles simultaneously.

  2. Toranth: I’m not sure I understand the question — wouldn’t the principle that a fine can’t deprive someone of his livelihood mean that the fine will be based in part on the wealth of the criminal?

    1. Considering the times, I would expect it to mean the fine should not be so high the criminal had to ‘sell his tools’ to pay the fine. These writings are from the dark ages where every man was in business for himself, and owned his tools.

    2. Perhaps a scenario might make my thoughts clearer:
      Let’s say the fine in a town for Public Nudity is $500.
      The town’s blacksmith gets drunk, and goes streaking around the town – ending with him being arrested.
      However, this blacksmith has no savings, and only makes $500 per year in business – but his tools are worth $1000.
      The Magna Carta‘s limit on not depriving him of his means of living would mean the fine would need to be reduced to something he could pay WITHOUT selling his tools.
      In this case, the fine is not based on the criminal’s wealth – the fine is fixed by law. Instead, the court is required to issue a lower fine to accommodate the Charter’s provisions. But everyone else, whether they make $1000 a year or $1 million a year, would be charged the same $500 fine.

      To me, those circumstances seems to describe a case where the fine is not based on wealth (or the millionaire would pay even more) but instead, poverty can be used to avoid punishment for failing to fully pay the fine.

      Although, MatthewSlyfield and Martinned have pointed out that Finland has percentage-based fines – so I guess there is a real world example of wealth-based fines out there.

  3. I believe that the Scandinavian courts follow that rule, which is why you occasionally see news stories about someone getting a $100,000 speeding ticket.

    1. Finland has a system based on ‘Day Fines.’ Basically a given offense will be assigned X number of days, and the fine for an individual is the amount that they would make in that many days of work. So if you annual income is $36,500 a one day fine would be $100. But if you make 3,650,000 your day fine would be $10,000. I actually like this system quite a lot as it makes every offense have the same relative impact on everyone.

      Though it should be pointed out that Finland treats personal income tax returns as a public record which would be required for the system to work well.

      1. “…Though it should be pointed out that Finland treats personal income tax returns as a public record …”

        ______________________

        [Fill in the obligatory, “Trump could never have become president in Finland” joke here.]

  4. May I refer to a paper of mine called “The Introduction of Jury Sentencing in the Commonwealth of Virginia”? It’s available via this link: https://papers.ssrn.com/abstract=1311086. In it, I discuss the Virginia excessive fines provision and an early decision of the Virginia Supreme Court of Appeals that referred to it. I also refer to historical scholarship about the meaning of the relevant Magna Carta provision.

    Leslie

  5. The words “for a trivial offense,” which as Professor Volokh notes have been part of the concept of excessive fines for centuries, represent a very serious qualifier.

    Because of this qualifier, it’s by no means clear that a fine too high to pay triggers the clause when imposed for very serious crimes.

    And for this reason, it might be better to raise the issue in the context of a parking ticket or some other obviously minor municipal civil infraction, rather than in the context of a drug distribution case involving felony convictions and a significant prison term.

  6. Agree with Toranth. Not inherently exclusive issues.
    More & more, trend to reduce fines from (somebody’s idea of) proportion to the degree of offense, when offender is unfortunate. Distressing to see some increasing fines beyond proportion to the degree of offense for those who are fortunate. If being wealthy increases your fines, no politician (& only some judges) would be safe from serious harm.

  7. 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 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.

    Blackstone’s extensive influence among the Framers?which can’t have been nil?may be esteemed more by lawyers than by historians. Note the error of historical method which Professor Volokh’s comment illustrates. Historians tend toward discomfort with an assertion in the form of, So-and-So was influential among the Framers; So-and-So said THIS about SOMETHING; hence the founders believed THIS about SOMETHING.

    That kind of thing is fine with lawyers. it’s practically Scalia’s method in Heller. Historians want the next step. Historians want to see where in the historical record a few founders?or at least one founder?quote Blackstone on the very point being offered as exampling Blackstone’s influence. If that can’t be found, the historian’s tendency is to discount the assertion as empty speculation.

    1. If the historians do not have positive evidence of a different influence, isn’t their dismissal of Blackstone’s influence equally empty speculation?

      1. No.

        Someone claims Blackstone had a strong influence on the founders. Isn’t it up to the person making the claim to prove it?

        It’s not “empty speculation” to say there is insufficient evidence to support the claim.

      2. No, Matthew. That way of doing it would?and for a long time did?lead to made-up history indistinguishable from fiction. So historians noticed the problem, and more than a century ago started professionalizing standards for historical reasoning, which greatly improved the reliability of more recent history compared to what had been written previously. This point from Volokh is on the wrong side of the modern standards.

        More generally, historical laymen, including a lot of would-be originalist lawyers and judges, have a tendency to presume that because older historical accounts were written closer in time to the events they relate, they enjoy credibility because of that. That is almost always a mistake.

        By today’s standards, the older histories (from the mid-19th century and on back) were almost universally unprofessionally researched and written. Good American history is mostly the stuff from the early 20th century forward, and tends to be better the more recent it is.

        Note that I am talking here about accounts by antiquarians and historians, and not about the reliability of original historical records. Also, nothing prevents a bad 21st century would-be historian from making a mess right now?see Kopel for example.

        1. Interesting how you claim the only good history is that which started under various derivatives of Marxist ideology like Communism in Russia and China, National Socialism in Germany, and Progressivism in USA. Another commonality is that it is also the time of WWI and the aftermath which led to WWII.

          Interesting.

    2. So are you suggesting that American common law didn’t grow out of English common law, or that Blackstone wasn’t an important commentator on English common law?

    3. Its a 4 paragraph post. You expect a citation to every sentence?

      Every lawyer in colonial America [who could afford] had Commentary upon Littleton by Coke and Commentaries on the Laws of England by Blackstone. This is not in dispute.

      Regarding the Commentaries:

      “The first American edition was produced in 1772; prior to this, over 1,000 copies had already been sold in the Thirteen Colonies.” wikipedia

      1,000 copies in colonial America prior to 1772. And you question its influence?

      Instead of getting on your “lawyers suck at history” hobby horse, learn something on your own.

      For starters, try this article [link would not post]link:

      Books the Founders Read: Blackstone’s Commentaries on the Laws of England

      Note this quote:

      “James Madison mentioned in a 1773 letter that he was reading the work and commented: “I am most pleased with & find but little of that disagreeable dryness I was taught to expect.” Madison included Blackstone in his 1783 list of “books proper for the use of Congress.”

      I can’t imagine why anyone would think James Madison had any influence on the Bill of Rights.

    4. Given that Nancy McLean explained to us that if a person explicitly says “X” but a historian knows that the person really believes “!X,” the proper approach of a historian is to claim that the person actually said “!X,” I think I’ll stick with the lawyers.

      1. Nieporent?playing credulous?announces good lawyers ought to take statements at face value, regardless of discredit or jeopardy the person saying them might fear. When a historian details trouble a forthright subject might get into?or avoid by less candor?as McLean did at length while reciting the historical record of Buchanan’s positions and machinations during the Virginia desegregation crisis?readers are invited to judge the case in its entirety. I had thought lawyers might do likewise. Nieporent not only teaches the error of my cynical ways, but also humbles me for inability to appreciate properly the rule of idealism among the legal profession.

  8. Lots of issues in this day and age.
    Are we talking income or net worth in defining excessive?
    What differences will come into play for a business owner .vs a wage earner? (How to define income if business is way down due to the trial?)
    Do we have to define excessive using a progressive scale like taxes, or actually be fair about it?
    How about doing away with fines and actually putting people in jail, where one day for a poor man is equal to one day for a rich man?

    1. “Are we talking income or net worth in defining excessive?”

      Why does it have to be one and not the other. What about the lesser/greater of x% of income or y% of net worth.

    2. “How to define income if business is way down due to the trial”

      Courts calculate income all the time, in contexts ranging from child support to bail to bankruptcy to scheduling payments. No special challenge here.

      And jail isn’t equal. Do you think your hypothetical business owner would fire himself? Of course not, but he may fire a jailed employee.

      1. “Courts calculate income all the time, in contexts ranging from child support to bail to bankruptcy to scheduling payments. No special challenge here.”

        It might not be a special challenge, but I don’t think we want courts going through that process for every speeding ticket. There would have to be an administratively-easier way established.

  9. Even that has disparate impacts – in some cases, even worse ones. Where a rich man, or someone who owns their own business, may be able to take leave for a couple weeks or months, someone being paid hourly isn’t bringing in money while they’re working, and if they don’t work for too long, they’re likely now out of a job. So in the end, not only are you in effect “fining” them the money they would have brought in while in jail, you’re depriving them of future earnings from that job, and leaving a permanent black mark on their record. I’m generally of he feeling that imprisonment should be a punishment of last resort, when society can’t effectively figure anything else to do. It has too many side effects to be the go-to.

    1. Neither the main article nor any commentor on this thread has suggested jail time as an appropriate alternative to fines.

      1. In the US, jail time would definitely deprive most people of their livelihood…

      2. Yes, a commenter did, and you replied to that comment four minutes before this reply. Do you just fire off replies to comments you don’t read? Or what?

  10. And I believe that any offense more serious than the theft of a couple hundred dollars should result in a presumptive death sentence.

  11. In looking at the full discussion in Book IV: Of Public Wrongs, of Blackstone’s Commentaries (Oxford Univ. Press), I think you miss some of the nuance by reorganizing the order of the passages you quote. The statement about the quantum of the fine appears in the context of Blackstone claiming that the specific amount of a fine cannot, and should not, be specified beforehand in the law. He follows that statement with an example of a Roman law that fined every person who struck another a set amount. But, when the empire was thriving, Lucius Neratius took the habit of striking others and then just tendering the fine.

    You also leave at the last part of the section in the Commentaries where Blackstone writes, “… but to inflict corporal punishment, or a stated imprisonment, which is better than an excessive fine, for that amounts to imprisonment for life. And this is the reason why fines in the king’s court are frequently denominated ransoms, because the penalty must otherwise fall upon a man’s person, unless it be redeemed or ransomed by a pecuniary fine: according to an antient maxim, qui non habet in crumena luat in corpore [let he who has nothing in his purse, pay in his person].”

    It would seem then that under English law, at least according to Blackstone’s synthesis of it, there is a connection between the imposition of the fine, the nature of the individual and offense, and, in the event a fine cannot be paid, the substitution of the person for the purse.

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