INTRODUCTION

When Americans break the law—whether it’s a minor offense like littering or a serious crime like felony assault—they tend to face the same financial penalties, no matter their income.

But while a $250 speeding ticket means little to a millionaire, it’s roughly a week’s pay for someone earning minimum wage.1

The injustice of levying monetary sanctions without regard to means has nowhere been more on display than in Ferguson, Missouri, where discriminatory enforcement of the municipal code subjected poor and black residents to fines they could not afford and incarceration for nonpayment.2

A policy that puts low-income offenders in a cycle of debt and jail while letting rich offenders break the law without meaningful financial consequence is one that fails to meet basic goals of the justice system: to treat like offenders alike, punish the deserving, and encourage respect for the law.

A system that tailors fines according to income, by contrast, would help to ensure that every person experiences a proportional penalty when she runs afoul of the law.

Outside the United States, systems that assess fines based on earnings have been around for nearly one hundred years.3 The most common model—known as the “day fine”—scales penalties according to a person’s daily income.4

These systems are credited with ensuring proportionality in sentencing, improving the effectiveness of fines as a sanction, and even allowing fines to serve as an alternative to incarceration.5

But by their very nature, day-fine systems can lead to startling results, as in 2015, when a €54,000 speeding ticket was assessed to a Finnish businessman caught going sixty-four miles per hour in a fifty zone.6 While the benefits are clear, would American courts abide a system that could slap Mark Zuckerberg with a million-dollar parking ticket?

Whatever the practical and political impediments to implementing income-based fines in the United States, this Article argues that the federal Constitution is unlikely to get in the way.

Potential obstacles—arising primarily from the Excessive Fines Clause—are navigable, especially if a US system caps how high fines can go.

Critical to this conclusion is a topic that has received little attention: while courts and commentators have shown increasing interest in whether the Excessive Fines Clause prohibits imposing overly burdensome fines on the poor, there has been no in-depth examination of whether this clause limits imposing weighty fines on the rich.7

After discussing how fines are assessed in the United States, how income-based fines work abroad, and the policy implications of such a system, this Article discusses why the Excessive Fines Clause and other constitutional doctrines could shape, but ultimately should allow, implementation of income-based fines in the United States.

Part I briefly reviews how fines are assessed in the United States and how income-based fines work abroad.

Part II discusses some of the policy implications of scaling fines to income.

Part III considers various constitutional impediments to implementing income-based fines in the United States.

Part III.A deals with equal protection, due process, the right against self-incrimination, the line between civil and criminal adjudication, and the right to a jury trial.

Part III.B—the bulk of this Article—grapples with the Excessive Fines Clause as well as a related subject: grossly excessive punitive damages awards.

I.  The Tariff Fine and the Day Fine

Fines, which have always been a feature of the American justice system, became by the late nineteenth century the predominant punishment for petty offenses and economic crimes.8

Today, fines are often the sole or primary form of punishment for low-level offenses like jaywalking—especially those considered civil rather than criminal.9 For graver criminal offenses, when incarceration is on the table, fines are typically imposed in conjunction with other sanctions.10

Although it could once be said that fines for serious crimes were unusual in the United States, the imposition of fines in such cases, levied on top of incarceration, is on the upswing: in 1991, only a tenth of felons sentenced to prison were fined; by 2004, it was a third.11

Those convicted of serious crimes but not sentenced to prison are even more likely to face fines.12

Income typically plays little, if any, role in determining the size of a fine.13 Tariff schemes, which set fixed penalties for specific offenses, are common.14

In Florida, for example, every littering infraction triggers the same $100 fine.15 Where courts have leeway in setting fines, mandatory minimum and maximum penalties circumscribe that discretion.

Pennsylvania, for instance, punishes a repeat offense of driving under the influence with a fine of “not less than $300 nor more than $2,500.”16

Some laws expressly prohibit consideration of a person’s financial means in assessing the size of financial sanctions17 or presume that all defendants will be able to pay a fine.18

When income does factor in, it is to lower or eliminate a fine because a person lacks financial means rather than increase a fine in proportion to her income.19

Even when courts have the authority to waive or modify financial penalties for the poor—often after sentencing rather than when the fine is imposed—reports suggest they do so far too rarely.20

And despite Supreme Court decisions holding that incarceration for failure to pay criminal justice debt is appropriate only if a person has the ability to pay but refuses to do so,21 in practice courts commonly ignore or skirt the requirement to examine a person’s means prior to incarcerating her for outstanding debt.22

In day-fine systems, by contrast, offender income plays a central role.

First implemented in Finland in 1921, day fines are used across Europe and Latin America, including in Argentina, Austria, Colombia, Finland, France, Germany, and Sweden.23

Although the specifics of each system differ—such as in how extensively they use day fines, how they calculate income and penalties, and whether caps limit how high a fine can go—the basic structure is the same: fines vary according to a person’s financial means.24

Take the German system: An offense is first assigned a number of “fine unit[s]” based on its seriousness, from 5 units, for the least serious, to 360.25

Next, courts determine a person’s daily income by, for instance, consulting public records and interviewing the offender.26 The amount of a fine is then calculated by multiplying those numbers together.

So for an offense carrying a punishment of ten units, a person with a daily income of €100 would pay a €1,000 fine, while a person with a daily income of €50 would pay €500.

Day fines are not entirely foreign to US shores. In the late 1980s and early 1990s, a handful of US jurisdictions—the first in Staten Island, New York—performed limited experiments with day fines and saw encouraging results despite significant statutory and administrative constraints.27

Overall, these experiences suggest that day-fine systems have the potential to increase fine collection rates and reduce the attendant costs of nonpayment—such as warrants, arrests, and court appearances to collect debt.28

Revenue could also rise if statutorily imposed maximum fines are relaxed or lifted.29 Impressively, courts by and large proved able to ascertain offenders’ financial means and calculate the appropriate sanction, notwithstanding legal limits on access to information and resource constraints flowing from the temporary nature of the experiments.30

Nevertheless, “all U.S. courts that started day fine programs eventually terminated their efforts.”31 As one scholar has explained, America’s day-fine experiments were launched just as the “tough-on-crime furor of the late 1980s and early 1990s” reached its zenith, creating a toxic environment for less punitive criminal justice reforms.32

Today, while a few US jurisdictions provide for day fines by statute, there is little indication that courts use that authority.33

II.  The Case for Income-Based Fines

A.    The Benefits of Income-Based Fines

A shift to income-based fines could have many benefits. For one, it would ensure that offenders of comparable blameworthiness experience similar punishments.34

Although imposing the same fine regardless of income is nominally consistent, true uniformity, the argument goes, requires subjective proportionality: punishments that are equally felt.35

From the perspective of retribution, scaling fines to income would ensure that financial sanctions exact meaningful punishment on wealthy offenders.

Such a system should also heighten deterrence for offenders with means, as one-size-fits-all fines likely deter the wealthy less than others.36

It is perhaps unsurprising, then, that some studies suggest upper-class individuals are more likely to break the law while driving than those from more modest circumstances.37

Income-based fines could help reduce the burden of criminal justice debt on the poor.

Across the country, courts commonly levy steep fines on those without the means to pay and then respond to nonpayment with arrests, court proceedings, and periods of incarceration.38

One result is that a single minor violation, like driving with an expired registration, can destabilize the life of someone living on the economic margins.39

Another is that formerly incarcerated people often face outstanding criminal justice debts far in excess of their annual incomes, complicating any hope of effective reentry.40 Income-based fines, on the other hand, could help ensure that monetary sanctions do not impose impossible-to-meet financial obligations on the poor.

Income-based fines are also more useful, and therefore more capable of substituting for other forms of punishment, than fixed fines. The core problem is that, when state actors set tariffs, minimums, and maximums, they know that whatever they choose will apply to offenders across the income spectrum.

As a consequence, they may be unwilling to set fines high enough to reflect the state’s interests—such as deterrence and retribution41—out of fear that steep fines will unduly penalize poorer offenders.42

And because fixed fines undersanction some offenses relative to the state’s desire, a resulting lack of confidence in fines as a punitive tool may inhibit their use as a substitute for other forms of punishment, such as incarceration.43

In Germany, where some four out of five of all criminal sanctions are day fines, courts regularly use fines as a substitute for incarceration, including for relatively serious crimes like assault and fraud.44

Without proportioning fines to income, however, it is far more difficult to set fine levels high enough to satisfactorily substitute for custodial sanctions like incarceration, at least when serious punitive consequences are considered appropriate.

Depending on how they are designed, income-based fines hold the promise of increasing government revenue.

Some of this increase could come from progressivity at the upper end: in the Staten Island experiment, for example, estimates are that revenue from fines would have increased by nearly 80 percent during the demonstration project had relatively miserly statutory maximums not constrained collection from higher-income offenders.45

And even without steep progressivity, income-based fines could boost revenue by increasing the rate at which low-income offenders pay their debts—as fine amounts become more manageable, offenders may make greater efforts to complete payment.46

B.    Potential Criticism

Against these benefits, income-based fines are vulnerable to a number of objections, from the philosophical to the practical. Some will suggest that income-based fines are redistributionist policy masquerading as criminal justice reform.47

To be sure, economic fairness is, for many, valuable on its own and reason enough to scale fines to income.48

But even those unmoved by its egalitarian benefits may nonetheless see in income-based fines a way to make monetary sanctions more effective in meeting the various ends of punishment and more capable of substituting for alternative punishments like incarceration.

Others will argue that a person’s culpability is unrelated to her financial means, so scaling punishment according to income inappropriately untethers the severity of punishment from offender deserts.49

Relatedly, some suggest that allowing income to play so important a role in determining the value of a fine leads to an “overdimensionalization” of the financial circumstances of an offender—that is, too great an emphasis on finances relative to other factors that affect whether a punishment is proportionate to the offense.50

I have already mentioned the most significant responses to these concerns:

(1) in terms of both retribution and deterrence, it is arguably more important to equalize how severely punishment is felt than it is to achieve nominal uniformity,51 and

(2) insofar as the concern is that income-based financial sanctions will not reflect the appropriate level of severity, fixed fines—because they are one-size-fits-all—are themselves deeply imperfect.52 Moreover, a system of income-based fines need not ignore traditional sentencing factors like the “nature and circumstances of the offense and the history and characteristics of the defendant.”53

In a day-fine regime, for instance, a court could make an individualized and multifactor determination about the number of “fine units” a given offense warrants, with the income of the offender coming into play only when those fine units are converted into the ultimate fine.

In this way, an income-based fine system could leave the ability of courts to make individualized sentencing determinations largely undisturbed.

Another objection is that income-based fines will sometimes overdeter the rich. According to this argument, not all crimes are the kind that we want to eliminate entirely, such as mass murder.

Rather, some rulebreaking results in more benefit to society than harm—in law and economics terms, “some criminal acts actually are wealth-maximizing”54—and we are happy to tolerate noncompliance with the rule if the rulebreaker is willing to pay the price.55

Consider commercial delivery vehicles that routinely park illegally and see occasional tickets as the cost of doing business.

If illegal parking were a capital offense, commerce might slow and we all might be worse off.56

From this perspective, fixed fines have a valuable purpose: if set at a level that reflects the costs to society of noncompliance, they will deter only undesirable law breaking while allowing those who will benefit society by breaking the law to do so.57

Because, however, income-based fines reflect not only the costs of rulebreaking but the finances of the rulebreaker, fines imposed on the wealthy will sometimes exceed those costs and thus deter otherwise desirable behavior—making society, as a whole, worse off.58

It follows that income-based fines may be less appropriate when society can set tariffs at a socially optimal price.

As with much of the discussion on income-based fines, the salience of this critique turns on questions of system design. For instance, if an income-based scheme places a ceiling on the overall size of monetary penalties, perhaps at a level close to the social cost of a given offense, then there is less danger of deterring socially beneficial rulebreaking.

This argument also relies on an unduly rosy view of the fixed fine. For reasons already discussed, it is often difficult to calibrate a fixed fine to reflect harms to society when high fines unduly penalize lower-income offenders.

Likewise, fixed fines are often imposed as punishment for crimes that society wants to prohibit full stop—wealth maximizing instances be damned.59

More fundamentally, economically optimal deterrence is not the only end of punishment: as the Supreme Court has stated in a related context, “Citizens and legislators may rightly insist that they are willing to tolerate some loss in economic efficiency in order to deter what they consider morally offensive conduct, albeit cost-beneficial morally offensive conduct.”60

Those crafting income-based fine regimes will ultimately have to balance the various benefits of increasing progressivity against the danger of overdeterring the rich.

A related criticism is that income-based fines will underdeter the poor. Assuming that the value of successfully committing a crime—say, stealing a television—is constant, an income-based scheme will likely lower the expected penalty for poor offenders, thereby increasing their incentive to commit certain crimes.

In fact, because the size of a penalty is directly tied to income, the poorer someone is, the greater the incentive to commit crime.61 The easiest way to defuse this problem is to set minimum fines, although any departure from the principle of income proportionality undermines many of the reasons for adopting income-based fines in the first place.

Perhaps for this reason, European day-fine systems tend to have minimum per day amounts but set them very low.62 The argument that income-based fines will fail to deter the poor is something of a twist on an old theory: that it is necessary to punish the poor with custodial sanctions rather than financial penalties because, as former Judge Richard Posner put it, “Imprisonment . . . imposes disutility on people who cannot be made miserable enough by having their liquid wealth, or even their future wealth, confiscated.”63

Whatever the truth of that claim, our system is already committed to the idea that fines are an appropriate penalty for a great amount of illegal conduct, and it has long imposed fines on the poor despite that regime’s apparent inefficacy.64

Another objection is that income-based fines could lead to discriminatory enforcement against the wealthy—such as local police officers targeting drivers in expensive cars for speeding tickets.

Without a doubt, hunger for government revenue influences the allocation of law enforcement resources. In places like Ferguson, for example, a desire to fill municipal coffers has driven aggressive and discriminatory enforcement in low-income communities.65

As a result, it isn’t hard to imagine that income-based fines could incentivize reallocation of enforcement resources toward wealthier communities where new, more fruitful revenue opportunities will be available.

Because, however, those with higher incomes also tend to be those with the most political power,66 it may be significantly more difficult for governments to target wealthy communities for disproportionate enforcement without substantial pushback.

It is also possible that an increase in the punitive effect of sanctions on those with the most money and political leverage could spur efforts to lower the punitive bite of sanctions across the board67—a conversation that is sorely absent so long as only the poorest (and most politically dispossessed) suffer significant consequences from fines.

Moreover, the practical likelihood that law enforcement will target those with higher incomes should not be overstated. Indeed, most offenses are not as conducive to discriminatory enforcement targeting wealth as motor vehicle offenses.

For one, the car provides a highly visible proxy for the income of an offender that is absent in other circumstances. For another, law enforcement has a freer hand in enforcing less serious offenses like speeding, for which an officer’s testimony alone is often sufficient to secure a conviction and penalties are low enough that most charged with an offense will pay a fine without testing the government’s case.

For more serious offenses, by contrast, the need for corroborating evidence to prove a case, as well as the likelihood that the accused will contest a charge, make it more difficult for law enforcement to bring cases against wealthy offenders out of a desire for revenue—to say nothing of the fact that the integrity of law enforcement alone should prevent such unscrupulous conduct.

Finally, reforms that would decouple local government revenue from local law enforcement—as many have already proposed—could greatly reduce any incentive to target wealthy offenders created by income-based fines.68

Aside from these theoretical considerations, there are practical challenges to implementing income-based fines. Obviously, laws will have to change, beginning with those that specify fixed fines and limit fines to a narrow range.

Some courts will need new capacity to determine the income of offenders, although many courts already dedicate significant time and money to investigating the personal circumstances of offenders in criminal cases,69 and it is possible that resources currently dedicated to policing the nonpayment of fines could be reallocated if collection rates increase under the new regime.70

A fuller discussion of how to design an income-based system is outside the scope of this Article.71

* * *

Before turning from the policy implications of income-based fines to the next question—whether the federal Constitution is any barrier to implementation—three observations are worth reemphasizing:

First, income-based fines can serve traditional goals of punishment, such as retribution and deterrence.

Second, some of the thorniest issues that arise have to do with treatment of those at the very top and bottom of the income distribution.

Third, minimum and maximum fines, a feature of most international day-fine systems, can address many of these same problems, though not without a cost to the ends that income-based fines are meant to achieve.

III.  The Constitutionality of Income-Based Fines

Whatever the practical and philosophical impediments to implementing income-based fines in the United States, the federal Constitution is unlikely to get in the way. After explaining why a range of constitutional doctrines—from the Due Process Clause of the Fourteenth Amendment to the Sixth Amendment jury trial right—pose little obstacle to such a system, this Article addresses the Excessive Fines Clause, a more substantial challenge.

A.    Various Constitutional Objections

Other than the Excessive Fines Clause, there is no obvious constitutional hurdle to implementing income-based fines.

As a preliminary matter, substantive constitutional challenges to punishment—that is, challenges to the method or severity of punishment—run up against a powerful background norm of deference to legislative judgment. As Justice Anthony Kennedy put it:

Determinations about the nature and purposes of punishment for criminal acts implicate difficult and enduring questions respecting the sanctity of the individual, the nature of law, and the relation between law and the social order. . . . The efficacy of any sentencing system cannot be assessed absent agreement on the purposes and objectives of the penal system. And the responsibility for making these fundamental choices and implementing them lies with the legislature.72

In addition to the value-laden nature of punishment, Kennedy has emphasized that the Constitution “does not mandate adoption of any one penological theory.”73 Rather, governments “have accorded different weights at different times to the penological goals of retribution, deterrence, incapacitation, and rehabilitation,”74 and the Constitution should not hinder the ability of states to tailor sentencing toward those various ends.

In light of the primary role that the states play in the enforcement of criminal law, the Court has suggested that principles of federalism also counsel in favor of deference: “[M]arked divergences both in underlying theories of sentencing and in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure.”75

Finally, the Court has emphasized that judicial review in this area runs the risk of becoming a subjective line-drawing exercise—few objective factors are available to help decide, for example, whether a thirty-year versus twenty-year sentence runs afoul of the Constitution.76

This is not to say that the Constitution places no substantive limits on the methods or severity of sanctions77 but that such challenges face an uphill battle. Nevertheless, there are a number of potential constitutional arguments—both substantive and procedural—to volley at a system of income-based fines. None hold much water.

1. Equal protection.

Take, for example, the Equal Protection Clause, which one might assume could limit the imposition of penalties that discriminate on the basis of income. Because the prevailing view is that socioeconomic status is not a suspect class under that doctrine, however, government action that differentiates among people based on income is generally subject to only rational basis review.78

Indeed, government policies that differentiate on the basis of income, from progressive taxation to means-testing for public benefits, are a staple of American policy.

Moreover, to the extent the Equal Protection Clause has limited punishment along class lines, it has been to require courts to take income—specifically, poverty—into account rather than to prohibit attention to income.79

Especially relevant here, in the criminal context the Supreme Court has ruled that the Fourteenth Amendment prohibits “subject[ing] indigents to incarceration simply because of their inability to pay a fine.”80 In Williams v Illinois,81 for instance, the Court held that extending a maximum prison term on account of an involuntary nonpayment of a fine or court costs is impermissible discrimination under the Equal Protection Clause.82 In Tate v Short,83 the Court struck down a statute that limited punishment for a traffic offense to a fine but converted that fine to a prison term for an indigent defendant without the means to pay.84

And in Bearden v Georgia,85 it held that a court may not revoke a defendant’s probation for failure to pay a fine and make restitution absent evidence that the defendant was somehow responsible for that failure—in other words, that nonpayment was “willful[ ]” rather than a consequence of an inability to pay—or that alternative forms of punishment were inadequate to meet the state’s interests in punishment and deterrence.86

Although these cases limit incarceration for nonpayment of criminal justice debt, the Court has suggested that the larger issue of whether fines ought to be tailored to income is a question for legislators and sentencing courts:

The Court has not held that fines must be structured to reflect each person’s ability to pay in order to avoid disproportionate burdens. Sentencing judges may, and often do, consider the defendant’s ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate.87

1. Due process.

Likewise, the Due Process Clause of the Fourteenth Amendment is little barrier to proportioning financial sanctions to income. In a line of cases potentially relevant to income-based fines, the Court has held that due process places both procedural and substantive limitations on the power of states to impose punitive damages in civil suits, including prohibitions on “grossly excessive” or “arbitrary” damage awards.88

However, the Court has separately held that, “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.”89

As a result, the Eighth Amendment’s express prohibition on excessive fines would seem to foreclose an independent due process challenge to the excessiveness of a fine. In any event, the standard the Court has enunciated for determining whether a punitive damages award is “grossly excessive” under the Due Process Clause substantially overlaps with the standard it has applied under the Excessive Fines Clause.90

While the Court’s treatment of punitive damages awards under due process doctrine could inform the question whether income-based fines run afoul of the Excessive Fines Clause,91 the Due Process Clause of the Fourteenth Amendment is unlikely to impose constraints on the magnitude of fines beyond those independently required by the Excessive Fines Clause.

1. The right against self-incrimination.

Because a system that scales fines to income needs a way to assess offender income, some have explored whether the Fifth Amendment right against self-incrimination could prevent courts from gaining access to financial information, such as tax records, necessary to determine the appropriate level of an income-based fine.92 It shouldn’t.

Broadly speaking, the Fifth Amendment does not protect against production of preexisting records even if they contain incriminating information.93 Thus, the Fifth Amendment rights of a taxpayer are ordinarily not violated by the enforcement of a summons directing an accountant or attorney to produce that taxpayer’s records.94

Moreover, American courts routinely gather information about an offender’s financial circumstance as part of the sentencing process. In the federal system, for example, probation officers conduct presentence investigations that, among other things, provide courts with information about “the defendant’s financial condition” for use in sentencing,95 and federal law expressly provides for the disclosure of tax return information to courts for use in judicial proceedings.96

That said, although offenders will rarely be able to shield financial records and other documents from court scrutiny, they may be able to invoke the right against self-incrimination to refuse to answer questions about their income orally or in writing.97

Because many day-fine systems have relied primarily on self-reporting to determine income, this restraint is potentially of some concern. In Germany, for example, courts faced with legal limits on access to tax data have administered day fines by relying on voluntary disclosures by defendants and reports by prosecutors detailing an offender’s occupation, education, and residence to determine income.98

As a practical matter, the limited American experience with day fines suggests that reliance on self-reporting is similarly workable—with high rates of compliance and accuracy in reporting.99 Nevertheless, a system that relies primarily on self-reporting would no doubt occasionally face the prospect of an offender refusing to volunteer information on Fifth Amendment grounds—either because providing income information would influence the measure of the offender’s liability (that is, the size of a fine)100 or because disclosing income could reveal illicit or unreported sources of income and thereby subject an offender to further liability.101

Because, however, a court faced with such intransigence could seek and obtain financial documents notwithstanding the Fifth Amendment, there would likely be little practical benefit to refusing to cooperate. As a result, there is no reason to believe that the self-incrimination right is any significant barrier to implementing income-based fines.

1. The civil-criminal line.

The difference between civil and criminal adjudication is, as Chief Justice William Rehnquist put it mildly, “of some constitutional import,”102 and classification of an offense as one or the other leads to consequences ranging from the applicable burden of proof—reasonable doubt in the criminal context and preponderance of the evidence in the typical civil case103—to the availability of procedural protections that exist only in the criminal realm.104

Because fines are so frequently imposed as punishment for civil offenses, a move to income proportionality that spurred a shift from civil to criminal adjudication could prove enormously disruptive.

The Supreme Court has, however, largely deferred to legislative determinations about whether penalties are civil or criminal, and the test it employs to second-guess legislative judgment suggests that a significant increase in civil penalties imposed on the rich is unlikely to force reclassification.

As it has explained, “[T]he question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction” focused on legislative intent.105 If the statute indicates, either “expressly or impliedly,” an intent to establish a civil penalty, then the Court asks whether the scheme is “so punitive either in purpose or effect as to negate that intention,” and “only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground.”106

In determining the punitive purpose or effect of a sanction, the Court has considered a number of factors.107 Importantly, it has expressly rejected overemphasis on the degree to which a penalty is “grossly disproportionate to the harm caused”108 and suggested that such claims are more appropriately addressed by the Excessive Fines Clause.109

In contrast to other, nonfinancial penalties, which may be inappropriate in the civil setting, it has observed that “the payment of fixed or variable sums of money [is a] sanction which ha[s] been recognized as enforceable by civil proceedings since the original revenue law of 1789.”110 Another factor, whether a “sanction comes into play ‘only’ on a finding of scienter,”111 also counsels in favor of the continued classification of many low-level offenses as civil no matter the penalty, as civil offenses like littering and parking violations are typically strict-liability offenses. And the Court has noted that the use of financial sanctions to promote deterrence “is insufficient to render a sanction criminal” even though deterrence is a traditional goal of punishment, “as deterrence ‘may serve civil as well as criminal goals.’”112 For these reasons, a shift to income-based fines is unlikely to turn offenses currently classified as civil into criminal ones.

1. The Sixth Amendment right to a jury trial.

The Sixth Amendment right to a jury trial113 poses a more noteworthy challenge, but only for regimes that levy hefty financial sanctions on those at the very top of the income scale. The issue is this: fines are often imposed for criminal offenses considered “petty” as opposed to “serious.” A significant increase in the fines that high-income offenders face could potentially turn some petty crimes into serious ones. And because the Supreme Court has held that the Sixth Amendment jury trial right applies only to serious criminal prosecutions,114 a reclassification from petty to serious could trigger that right where it currently doesn’t apply, leading to various complexities in both system design and administration.

In determining whether a particular crime is petty or serious, courts look chiefly to the “severity of the maximum authorized penalty.”115 In this analysis, “[p]rimary emphasis” is “placed on the maximum authorized period of incarceration”—while “[p]enalties such as probation or a fine may engender ‘a significant infringement of personal freedom,’ . . . they cannot approximate in severity the loss of liberty that a prison term entails.”116 Indeed, the Supreme Court has established a rebuttable presumption that offenses punishable by six months’ imprisonment or less are petty,117 which a defendant may overcome “only if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a ‘serious’ one.”118 And it has remarked more than once that it will be a “rare situation where a legislature packs an offense it deems ‘serious’ with onerous penalties that nonetheless do not puncture the 6-month incarceration line.”119

In Southern Union Co v United States,120 however, the Court made clear that fines can rise high enough to trigger the jury trial right even when incarceration isn’t on the table.121 Explaining that “not all fines are insubstantial, and not all offenses punishable by fines are petty,” the Court suggested that the defendant was “properly accorded a jury trial” under the Sixth Amendment given that the charges at issue carried a maximum fine of $50,000 for each day of a violation, culminating in a maximum potential fine of $38.1 million.122 To make its point, the Court cited an illustrative sample of “substantial” fines: a criminal contempt fine of $52 million, a $400 million fine for a violation of the Sherman Antitrust Act, a fine of $448.5 million for two violations of the Foreign Corrupt Practices Act, and a fine of $1.195 billion for violations of food and drug laws.123 If these eye-popping totals are any guide, then an eight-figure fine is likely high enough to trigger the Sixth Amendment right. At the other end of the equation, the Court has sanctioned petty crimes with maximum authorized fines of $10,000 in 1975124 (roughly $47,000 adjusted for inflation), $1,000 in 1989125 (roughly $2,000 today), and $4,000 in 1993126 (roughly $7,000 today).

The Court is unlikely to adopt a strict numerical rule governing when a fine makes a crime serious for Sixth Amendment purposes, but even a conservative reading of these cases suggests that an income-based fine regime could punish offenses with fines well into the tens-of-thousands of dollars range without triggering the jury trial right. In other words, only a Finland-like system with no ceiling on the overall size of fines would risk transforming petty crimes into serious ones.127 Moreover, this discussion has so far assumed that the absolute size of the fine is the appropriate measure, but the Court has on occasion suggested that it is the relative burden that a fine would impose that matters for Sixth Amendment purposes.128

Even if steep fines could trigger the jury trial right, the results would hardly counsel against scaling fines to income. First, as this Section discusses, fines are frequently imposed as punishment for crimes deemed serious because they carry long periods of incarceration, meaning that for these offenses the jury trial right has already attached. As for crimes that would become serious under an income-based fine regime, expansion of the jury right would lead to some increase in the number of jury trials, along with their associated costs and burdens, but that effect would likely be small:129 after all, even if the jury trial is available, “the reality [is] that criminal justice today is for the most part a system of pleas, not a system of trials.”130 Finally, under Apprendi v New Jersey,131 when the Sixth Amendment jury right attaches, the accused possesses an attendant right to have every fact “[o]ther than the fact of a prior conviction . . . that increases the penalty for a crime beyond the prescribed statutory maximum . . . submitted to a jury, and proved beyond a reasonable doubt.”132 Accordingly, under an income-based fine scheme in which the maximum penalty varied according to income, an offender’s income could become a jury question.133 By contrast, without any maximum penalty, a judge could determine an offender’s income along with the amount of a financial sanction at sentencing.134 While the design of an income-based fine regime will have to take these considerations into account, they are hardly insurmountable.

B.    The Excessive Fines Clause

According to United States v Bajakajian135—the only decision in which the Supreme Court has struck down a fine as excessive—a fine violates the Excessive Fines Clause if it is “grossly disproportional to the gravity of a defendant’s offense.”136 Whether this clause limits the ability of governments to impose weighty fines on the rich primarily turns on the meaning of disproportionality: A fine must be proportional, but proportional in what sense?137

On the one hand, income-based fines are by definition proportional: as the size of a monetary penalty rises or falls in proportion to a person’s income, offenders experience similar retributive consequences and deterrent effects. And insofar as a proportional punishment is one tailored to serve the ends of punishment as opposed to one that is unnecessary or gratuitous when measured against its purposes, income-based fines are proportional insofar as they improve the ability of financial sanctions to meet important goals of punishment, such as retribution and deterrence. On the other hand, the Excessive Fines Clause could constrain income-based fines if it requires an
income-blind assessment of proportionality or if proportionality is understood as a strict relationship between the gravity of the offense and the absolute—as opposed to relative—severity of a punishment. To explore which view of proportionality might prevail and other implications of this doctrine for income-based fines, what follows is a review of the Supreme Court’s Excessive Fines Clause jurisprudence, a survey of cases in state and lower federal courts, and a discussion of the Court’s larger “gross disproportionality” and due process case law.138

Ultimately, the Excessive Fines Clause should not prevent government efforts to scale financial sanctions to income. As with the constitutional objections already discussed, this clause is not an obstacle to a scheme that would reduce the burden of financial sanctions on those without means—if anything, it may prohibit the imposition of overly burdensome fines on the poor. At the other end of the income spectrum, the Excessive Fines Clause could place an upper limit on financial sanctions levied on the rich, especially for low-level offenses. But that result is uncertain and, if international examples are any guide, unlikely to dramatically affect the design of a US system, as most day-fine regimes include caps on the size of fines for reasons wholly apart from any constitutional constraints.

1. Excessive fines in the Supreme Court.

The Eight Amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”139 While the Supreme Court had long grappled with the meaning of “cruel and unusual punishment”140 and the prohibition on “excessive bail,”141 it took until 1989 for it to consider an application of the Excessive Fines Clause.142 A series of four cases followed, culminating in Bajakajian.

First, in Browning-Ferris Industries of Vermont, Inc v Kelco Disposal, Inc,143 the Court held that the Excessive Fines Clause constrains only fines “directly imposed by, and payable to, the government.”144 As it explained, “At the time of the drafting and ratification of the Amendment, the word ‘fine’ was understood to mean a payment to a sovereign as punishment for some offense.”145 And although there is little direct evidence of the Founders’ intent in crafting the clause, its language draws near-verbatim from a provision of the English Bill of Rights of 1689146 that was itself targeted at curbing government excess—in particular, a practice in which the king’s judges would impose heavy fines on political opponents and allow those who could not pay to languish in jail.147 In keeping with that history, the Court rejected any notion that the clause constrains the size of punitive damages awards in civil cases between private parties.148

Next, in Austin v United States,149 the Court determined that the clause “limits the government’s power to extract payments . . . as punishment” whether or not a proceeding is considered civil or criminal.150 “The notion of punishment,” it explained, “cuts across the division between the civil and the criminal law.”151 As such, “a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment” within the clause’s purview.152 Applying these principles, the Court determined that a civil action in which the government sought forfeiture of property connected to drug trafficking was subject to the clause’s limitations given that the purpose of such a forfeiture was, at least in part, punitive.153 In Alexander v United States,154 a companion case issued the same day, the Court held that a criminal forfeiture, levied atop a six-year prison term and $100,000 fine, was similarly challengeable—“no different, for Eighth Amendment purposes, from a traditional ‘fine.’”155

While those cases concerned what constitutes a fine, Bajakajian marks the first time the Court has spelled out the standard for determining whether a fine is excessive. In it, a man attempted to board a plane leaving the United States without reporting, as required by federal law, that he was transporting more than $10,000 in cash.156 Pursuant to another law that made “any property . . . involved in such offense”157 subject to forfeiture, the Government sought all $357,144 that the man failed to declare.158 Following the trio of cases just discussed, the Court had “little trouble concluding” that the forfeiture was “punishment,” and thus a “fine” within the meaning of the clause, given that it was imposed following a criminal conviction and, as the Government argued, served the state’s interest in deterring the illicit movement of cash—deterrence being a “traditional[ ] . . . goal of punishment.”159

Turning to whether the fine was constitutionally “excessive,” the Court noted that the “touchstone” of that inquiry “is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.”160 Yet as Justice Clarence Thomas remarked in his opinion for the majority, “The text and history of the Excessive Fines Clause . . . provide little guidance as to how disproportional a punitive forfeiture must be to the gravity of an offense in order to be ‘excessive.’”161 Contemporary dictionaries defined “excessive” as “surpassing the usual, the proper, or a normal measure of proportion”162—little help on the specifics. As to history, the Court recounted the legacy of the English Bill of Rights of 1689, as well as Magna Carta’s limits on “amercements (the medieval predecessors of fines),” which required that such penalties “be proportioned to the offense and that they should not deprive a wrongdoer of his livelihood,”163 but the Court found scarcely anything to suggest “how disproportional to the gravity of an offense a fine must be in order to be deemed constitutionally excessive.”164

Left wanting by text and history, the Court adopted a century-old standard165 from its Cruel and Unusual Punishments Clause jurisprudence: gross disproportionality. This clause, the Court has explained, though by its terms addressing “cruel and un-usual punishments,” “prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.”166 Because, however, “judgments about the appropriate punishment for an offense belong in the first instance to the legislature” and “judicial determination regarding the gravity of a particular criminal offense [is] inherently imprecise,” the Court has largely deferred to legislative judgment in this area, policing only punishments that are grossly disproportionate.167

Thus, under Bajakajian, a fine “violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.”168 Although the Court did not spell it out in precisely these terms, this inquiry can be divided into three parts: (1) the gravity of an offense, (2) the magnitude of a fine, and (3) proportionality.

The Court discussed gravity in terms of culpability and harm. As to culpability, the Court first observed that the “essence” of the defendant’s crime was a “willful failure to report the removal of currency from the United States”—a relatively unserious “reporting offense.”169 Then the Court took an individualized look at the defendant’s conduct, noting that his “violation was unrelated to any other illegal activities” given that “[t]he money was the proceeds of legal activity and was to be used to repay a lawful debt.”170 As a consequence, Bajakajian himself did “not fit into the class of persons for whom the statute was principally designed: He [was] not a money launderer, a drug trafficker, or a tax evader.”171 Particular emphasis was placed on the “other penalties that the Legislature ha[d] authorized” for the crime, which the Court took as “relevant evidence” of the “offense’s gravity.”172 Specifically, the Court took the fact that, “under the Sentencing Guidelines, . . . the maximum sentence that could have been imposed on [Bajakajian] was six months, while the maximum fine was $5,000” as confirmation of the defendant’s “minimal level of culpability.”173

As to harm, the Court adopted a similarly narrow view, defining it in terms of the consequences of the defendant’s individual conduct, injury to the government as opposed to the public, and injury caused by the failure to report irrespective of the amount unreported. As it explained,

[The] [f]ailure to report his currency affected only one party, the Government, and in a relatively minor way. There was no fraud on the United States, and . . . no loss to the public fisc. Had his crime gone undetected, the Government would have been deprived only of the information that $357,144 had left the country.174

Rejecting the Government’s argument that the harm it suffers increases along with the amount of money leaving the country unreported, the Court again made reference to the defendant’s own conduct: “It is impossible to conclude . . . that the harm [defendant] caused” by moving $357,144 “is anywhere near 30 times greater than that caused by a hypothetical drug dealer who willfully fails to report taking $12,000 out of the country in order to purchase drugs.”175

Moving from the gravity of the offense to the magnitude of the fine, the Court concluded only that “full forfeiture of [the defendant’s] $357,144” violated the Excessive Fines Clause, declining to speculate as to how high the forfeiture could have gone without running afoul of the Constitution.176

As to the meaning of proportionality, the Court gave even fewer clues. The majority seemed concerned with what degree of disproportionality the Constitution should tolerate,177 but the more basic question of what proportionality is went, at least on the surface, unexamined. The forfeiture, the Court noted, was “larger than the $5,000 fine” authorized by the Guidelines—indeed, it was some sixty-five times greater.178 This focus could suggest that the Court thought of proportionality as a mathematical ratio: a fine may be only so many multiples of the
gravity of an offense. The Court also remarked that full forfeiture was excessive because it bore “no articulable correlation to any injury suffered by the Government,”179 perhaps suggesting that if the government had explained why the forfeiture served important state interests—in other words, that there was a correlation between the sanction imposed and the gravity of the offense—the result might have been different. This points toward a view of proportionality as requiring that sanctions further the ends of punishment as opposed to being unnecessary or gratuitous when measured against the purposes of punishment.

More telling, perhaps, than what the Court said is what it left unaddressed. Specifically, it failed to engage with an argument raised by the government and the dissent: that forfeiture of the full amount served the state’s interest in deterrence.180 As Kennedy argued in the dissent, Congress authorized full forfeiture of all undeclared cash in order “to deter lucrative money laundering”—without full forfeiture, the consequence of moving undeclared cash becomes a “modest cost of doing business in the world of drugs and crime.”181 Because the majority instead fixed on the individual blameworthiness of the defendant and the harm resulting from his actions, without reference to the government’s interest in setting a financial sanction necessary to deter such conduct, many commentators have suggested that Bajakajian adopts a view of “retributive proportionality” grounded in the “traditional elements of blameworthiness”: harm and culpability.182 Under this view, “[I]t is wrong to punish an individual to a greater degree than offense seriousness would dictate, even if such disproportionate punishment generates significant social gain.”183 By contrast, under a nonretributive or utilitarian model of proportionality, in which interests such as deterrence are recognized as legitimate bases for punishment, a fine high enough to “deter future violations, rather than simply to compensate the government for the injury caused by the
defendant” would be appropriate despite being “some multiplier of the actual harm caused.”184

As I allude to above, because culpability and harm will rarely vary with income,185 the constitutionality of income-based fines under the standard announced in Bajakajian largely turns on the definition of proportionality. Under nonretributive proportionality, weighty income-based fines imposed on the rich could be justified as improving the ability of financial sanctions to deter wealthy offenders. From the perspective of retributive proportionality, income-based fines could still be justified on a theory of subjective retribution: increased fines on the rich are necessary to ensure that fines have an adequate retributive “bite”—in other words, that wealthy offenders experience financial sanctions as sufficiently punitive. But if proportionality is understood as mandating a strict relationship between the gravity of the offense and the absolute, as opposed to relative, severity of a punishment, or if the Excessive Fines Clause requires an income-blind assessment of proportionality, then income-based fines will be significantly constrained.

On that last point, Bajakajian expressly reserved the question whether “wealth or income are relevant to the proportionality determination” or whether the fact that a fine will “deprive [an offender] of his livelihood” is relevant to the constitutional analysis.186 But that is not the only statement on the matter from the Supreme Court. Rather, writing for herself and Justice John Paul Stevens in Browning-Ferris, Justice Sandra Day O’Connor concluded that the Excessive Fines Clause does not bar a state from taking the wealth of an offender into account when setting a punishment:

Using economic analysis, some of the amici in support of [the defendant] argue that the wealth of a defendant should not, as a constitutional matter, be taken into account in setting the amount of an award of punitive damages. It seems to me that this argument fails because the Excessive Fines Clause is only a substantive ceiling on the amount of a monetary sanction,187 and not an economic primer on what factors best further the goals of punishment and deterrence. Just as the Fourteenth Amendment does not enact Herbert Spencer’s Social Statics, . . . the Eighth Amendment does not incorporate the views of the Law and Economics School. The “Constitution does not require the States to subscribe to any particular economic theory.” . . . Moreover, as a historical matter, the argument is weak indeed. First, Magna
Carta only required that an amercement be proportionate and not destroy a person’s livelihood. Second, Blackstone remarked 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 a matter of indifference to another’s.”188

Especially notable for our purposes, O’Connor endorsed the view that a state could increase the nominal size of a penalty in response to a defendant’s wealth rather than addressing whether the Excessive Fines Clause requires the reduction of penalties on the poor.189 Her position rested on two pillars: first, that “[r]eviewing courts . . . should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes,” especially when a challenge to that legislative judgment would require imposing a single penological—or economic—theory on the state;190 and second, the historical foundations of the Excessive Fines Clause—the proportionality and deprivation of livelihood principles in Magna Carta, both of which were acknowledged by the Court in Bajakajian,191 as well as Blackstone’s recognition of the subjectivity of financial sanctions.192 Although she did not speak for the Court, O’Connor’s statement in Browning-Ferris is perhaps the firmest doctrinal foothold for a party arguing in favor of the constitutionality of weighty income-based fines. That said, her view that a state may take income into account is far from a requirement that it do so, nor is it irreconcilable, strictly speaking, with the Constitution setting some retributive upper limit restricting how high a state may set a sanction in relation to the gravity of an offense.

Having exhausted the Supreme Court’s own Excessive Fines Clause jurisprudence,193 I now turn to how other courts have interpreted that provision in the wake of Bajakajian.

1. Excessive fines in lower courts.

To say that the lower courts are confused about how to apply Bajakajian is an understatement. As one scholar has remarked, “[T]he doctrine has created a quagmire.”194 The DC Circuit has, characteristically, put it more mildly: Bajakajian’s gross disproportionality analysis “hardly establish[es] a discrete analytic process.”195 For our purposes, two observations bear mentioning. First, seizing on Bajakajian’s emphasis on the magnitude of authorized penalties, lower courts have found that nearly any fine within the range prescribed by a legislature is constitutional. The upshot is that a government’s decision to authorize income-based fines will, in and of itself, erect a significant barrier to challenge under the Excessive Fines Clause. Second, courts are divided as to whether, and how, the finances of a defendant should factor into the constitutional analysis.196

In concluding that the defendant showed a “minimal level of culpability,” the Bajakajian Court discussed an array of factors: that the crime of conviction was “solely a reporting offense”; that the defendant’s conduct was “unrelated to any other illegal activities”; that the defendant was not within “the class of persons for whom the statute was principally designed”; and that, under the Sentencing Guidelines, the forfeiture at issue far exceeded the maximum authorized fine.197 Lower courts, however, have largely made this last consideration—whether a challenged fine is within the range authorized by statute or guidelines—the locus of the constitutional inquiry. As one court observed after surveying the landscape of post-Bajakajian challenges, “[I]t is doubtful that a penalty that is . . . less than the total maximum penalty authorized by law could ever be grossly disproportional to the offense’s gravity.”198 Indeed, the dominant position appears to be that if a fine falls “within the range of fines prescribed by Congress, a strong presumption arises that the [fine] is constitutional,”199 and some courts have said that “careful[ ] consider[ation]” of the Bajakajian factors is necessary only if the fine at issue “exceeds the statutory and Guideline maximum fines.”200 Even when it is framed as a presumption, many courts have treated the fact that a fine falls within the authorized range as determinative.201

The logic behind this emphasis is plain: it stresses deference to legislative determinations about what punishment is appropriate, and by “[t]ranslating the gravity of a crime into monetary terms,”202 it reduces Bajakajian’s multifactor test—which runs the risk of subjective application—into a matter of elementary school arithmetic. Of course, taken to an extreme, it threatens to make a mockery of the Excessive Fines Clause because fines, no matter how steep, will pass muster so long as they are authorized. As the Bajakajian Court itself cautioned, legislative authorization “cannot override the constitutional requirement of proportionality review.”203 Whatever its merits, the implication of this approach for income-based fines is clear: so long as it is authorized by a statute, even a system that imposed heavy fines on the wealthy would be relatively secure against constitutional challenge.

Not all of the developments in the lower courts since Bajakajian augur in favor of the constitutionality of income-based fines. Indeed, courts are divided as to whether, and how, the financial circumstances of a defendant should factor into the constitutional analysis, with many concluding that courts should ignore, or sharply cabin, consideration of an offender’s means. As mentioned above,204 Bajakajian expressly reserved the question whether the Excessive Fines Clause, which has roots in Magna Carta’s requirement that “amercements . . . be proportioned to the offense and that they should not deprive a wrongdoer of his livelihood,”205 requires or constrains consideration of an offender’s financial circumstances.206 Since that decision, some courts, including the Eleventh Circuit, have held that they should “not take into account the personal impact of a forfeiture on the specific defendant in determining whether the forfeiture violates the Eighth Amendment.”207 Curiously, the Eleventh Circuit suggested that this result flowed from Bajakajian itself.208 The First and Second Circuits, by contrast, while agreeing that “a defendant’s inability to satisfy a forfeiture at the time of conviction, in and of itself, is not at all sufficient to render a forfeiture unconstitutional” have concluded, following Magna Carta, that a fine that “effectively would deprive the defendant of his or her livelihood” would violate the Constitution.209 In other words, those courts that have considered the financial circumstances of offenders have distinguished whether a fine would “destroy a defendant’s future livelihood” (which is grounds for finding a fine unconstitutionally excessive) from consideration of “a defendant’s present personal circumstances, including age, health, and financial situation” (which is not).210

Because whether the clause limits overly burdensome fines on the poor is a topic well covered by other scholarship, this
Article is concerned with that question only to the extent it bears on the imposition of heavy fines on the rich.211 And on their face, statements such as the Eleventh Circuit’s suggest that income-based fines could face significant obstacles under the Excessive Fines Clause. After all, if a court must ignore an offender’s financial circumstances in determining whether a fine is grossly disproportional, then a $100,000 parking ticket assessed to a billionaire would receive the same scrutiny as a $100,000 ticket assessed to someone living in poverty. The consequence, if the Excessive Fines Clause has any teeth, would be invalidation of both.

Read in context, however, there is little reason to believe these broad prohibitions on the consideration of income will stand in the way of income-based fines. For one, the courts to have confronted the question of financial circumstances have done so by way of asking if the Excessive Fines Clause requires courts to invalidate state-chosen sanctions as imposing unconstitutionally burdensome fines on the poor.212 In that setting, the powerful deference accorded to state penological judgment militates against preventing the state from imposing its preferred penalty. When, instead, the question is whether the Excessive Fines Clause prohibits a state from taking income into account, that same deference weighs in favor of income-based fines. Because deference is the animating rationale behind many of the decisions rejecting consideration of income,213 one would assume that principle will apply neutrally and not as a one-way ratchet against the poor.

For another, at least some of the courts to suggest that the financial circumstances of an offender have no constitutional relevance have signaled that this rule is related, in part, to factors special to criminal forfeiture as opposed to other types of fines.214 For example, the Second Circuit has explained that criminal forfeiture is designed to take from an offender the proceeds of crime as well as property used in connection with crime, both of which are unrelated to an offender’s financial circumstances.215 As a result, “forfeitures should be ‘concerned not with how much an individual has but with how much he received in connection with the commission of the crime.’”216 When determining the severity of other penalties, by contrast, a more individualized inquiry, taking into account the nature and circumstances of the offender, is appropriate.217 By this logic, the Excessive Fines Clause may more readily permit consideration of an offender’s means when financial sanctions other than forfeiture are at play.218

1. Gross disproportionality under the Cruel and Unusual Punishments Clause.

Because Bajakajian “adopt[ed] the standard of gross disproportionality articulated in [the Court’s] Cruel and Unusual
Punishments Clause precedents,”219 the next step is to plumb those cases for clues. Even the Court itself, however, has commented on the doctrine’s inscrutability: “Our cases exhibit a lack of clarity regarding what factors may indicate gross disproportionality.”220 The strand of that doctrine most applicable to income-based fines, concerning challenges to the length of imprisonment, is particularly fractured, with no single rationale uniting a majority of the Court.221 Still, these cases reveal a number of factors likely to play into the question of income-based fines—particularly whether, and under what circumstances, such a system will need caps to guard against weighty fines on the rich.

The Court’s Cruel and Unusual Clause disproportionality cases fall into two categories.222 In the first, the Court has announced categorical restrictions on the death penalty, such as prohibitions on capital punishment for crimes other than homicide.223 In the second, the Court has entertained “challenges to the length of term-of-years sentences given all the circumstances in a particular case.”224 And though they have a common source, the Court has by and large been careful to keep these two lines of cases separate, each with its own distinct test.225 In Bajakajian, the Court adopted the standard articulated in the term-of-years cases.226 Under that inquiry, a court “begin[s] by comparing the gravity of the offense and the severity of the sentence.”227 Unlike in Bajakajian, however, this question is a “threshold comparison,” which, if it “leads to an inference of gross disproportionality,” triggers a “comparative analysis” of “the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.”228 Only “[i]f this comparative analysis validates an initial judgment that the sentence is grossly disproportionate” is the sentence struck down.229

If there is one thing to take away from the Court’s length-of-incarceration cases, it is—again—the powerful deference afforded to legislative judgments. Only once has the Court struck down a term of years as grossly disproportional: in Solem v Helm,230 when it invalidated a sentence of life without parole for the crime of passing a worthless check, the defendant’s seventh nonviolent felony.231 In contrast, it has rejected a challenge to a sentence of twenty-five years to life for the theft of three golf clubs under California’s three-strikes law;232 upheld a sentence of life without parole for possessing a large quantity of cocaine;233 sustained a sentence of life with the possibility of parole for the crime of obtaining money by false pretenses, the defendant’s third nonviolent felony;234 and countenanced a sentence of forty years for possession of marijuana with the intent to distribute and distribution of marijuana.235 The factors that explain this deference are by now familiar: “[T]he primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system,” and the difficulty of developing “objective standards to distinguish between sentences for different terms of years.”236

Unlike Bajakajian itself, which was largely silent as to the meaning of proportionality and, if anything, suggested a purely retributive view, these gross disproportionality cases have mostly embraced a nonretributive one. Under this standard, a state is free to designate the purposes of punishment, but proportionality requires that there be a meaningful relationship between those goals and the punishment imposed, as opposed to a sanction that is unnecessary or gratuitous when measured against its purposes. As O’Connor put it in Ewing v
California,237 “It is enough that the State . . . has a reasonable basis for believing that dramatically enhanced sentences . . . ‘advance[ ] the goals of [its] criminal justice system in any substantial way.’”238 Under the retributive model, by contrast, it is wrong to punish an individual to a greater degree than offense seriousness would dictate, no matter whether it would serve societal interests like deterrence and incapacitation.239 Once one accepts the principle that the Constitution does not mandate any one penological theory, the reason for the dominance of the nonretributive model is clear: the alternative constitutionalizes one purpose of punishment over the others by invalidating state action that serves those other ends. That the state will be able to justify income-based fines in part on their increased deterrence benefits could bode well for their constitutionality.

But while the Court has repeatedly emphasized the role that interests like deterrence and incapacitation may play in justifying harsh sanctions, there is disagreement—among cases and among members of the Court—about how strictly to scrutinize the nexus between those interests and a state’s chosen sanction. The Court’s decision in Ewing is illustrative. For the plurality, O’Connor wrote that California’s three-strikes law was designed to combat recidivism by increasing the deterrence and incapacitation of repeat offenders.240 These justifications, she stressed, were “no pretext”—“[r]ecidivism is a serious public safety concern,” with some “67 percent of former inmates released from state prisons [ ] charged with at least one ‘serious’ new crime within three years of their release.”241 And she observed statistics suggesting that recidivism had markedly declined among the target population in the wake of the new law.242 In dissent, Justice Stephen Breyer more closely examined the state’s policy. Rather than consider the state’s interest in deterrence writ large, he asked whether the lengthy sentence furthered the state’s interest in deterring the crime of conviction: shoplifting.243 On this point, he noted the absence of any “evidence presented here that the law enforcement community believes lengthy prison terms necessary adequately to deter shoplifting” and observed that other methods of detecting (and thus deterring) shoplifting were available.244

Under the more permissive strand of nonretributive proportionality, the deterrence logic behind income-based fines could alone be enough to pass constitutional muster: fines need to scale with income to deter wealthy offenders. Under the stricter version, the constitutionality of heavy income-based fines on the wealthy could vary from offense to offense, with heavy income-based fines able to survive only for those offenses for which there is reason to believe that a harsher sanction is necessary. Under either view, wealthy offenders will argue against exorbitant income-based fines on the ground that a lower financial sanction would have had an adequate deterrent effect, an objection that will perhaps be more plausible for those offenses for which the expected value of commission is ascertainable and unrelated to income.245 Importantly, the Supreme Court has recognized the legitimacy of deterrence—and not merely the law and economics varietal.246 As a result, the deterrence value of income-based fines ought to be measured not in terms of optimal social value but in terms of whether the severity of the sanction meaningfully decreases the likelihood that a rule will be broken.

Relatedly, when asking whether a given financial sanction is gratuitous in relation to its ends, a court might take into account not only whether a lower fine would suffice but also the state’s choice to impose a financial penalty as opposed to other, more severe forms of punishment like incarceration. When compared to prison, even a hefty income-based fine could look proportional. Of course, it is much more difficult to compare severity across modes of punishment than within one.

Although nonretributive proportionality is the consensus view, Justice Antonin Scalia suggested that “[p]roportionality—the notion that the punishment should fit the crime—is inherently a concept tied to the penological goal of retribution.”247 For him, “it becomes difficult even to speak intelligently of ‘proportionality,’ once deterrence and rehabilitation are given significant weight.”248 This is so, he said, because once the size of the penalty is tailored to deter, rather than merely to fit the gravity of an offense, the size of the penalty can become wildly unhinged from the seriousness of an offense:

[S]ince deterrent effect depends not only upon the amount of the penalty but upon its certainty, crimes that are less grave but significantly more difficult to detect may warrant substantially higher penalties. Grave crimes of the sort that will not be deterred by penalty may warrant substantially lower penalties, as may grave crimes of the sort that are normally committed once in a lifetime by otherwise law-abiding citizens who will not profit from rehabilitation.249

Undoubtedly, once a fine is tailored to serve multiple ends, it will no longer correspond to any one of them. Yet it is by no means clear that proportionality becomes any less intelligible—if that means judicially administrable—if deterrence, rather than retribution alone, is a factor. The question whether a given sanction will deter conduct is more susceptible to “objective” review, through evidence and empirical measurement, than the question of how grave a given crime is.250 But insofar as Scalia was accusing the Court of misdescribing the nature of its proportionality inquiry, he was on the money. As he said, what the Court has “read[ ] into the Eighth Amendment is not the [ ] proposition that all punishment should be reasonably proportionate to the gravity of the offense, but rather the [ ] proposition that all punishment should reasonably pursue the multiple purposes of the criminal law.”251 That summarizes well the nonretributive view.252

The Court’s Cruel and Unusual Clause cases elsewhere hint at the presence and continued viability of the retributive view, not so much as a substitute for the nonretributive model but as an overlapping constraint. As Justice Lewis Powell put it in his Rummel v Estelle253 dissent: “The [gross disproportionality] inquiry focuses on whether a person deserves such punishment, not simply on whether punishment would serve a utilitarian goal. A statute that levied a mandatory life sentence for overtime parking might well deter vehicular lawlessness, but it would offend our felt sense of justice.”254 In other words, states may take into account ends other than retribution, but there is a retributive upper limit on the severity of sanctions.255 The Court’s capital punishment line of cases has at times expressly suggested that nonretributive and retributive versions of disproportionality can simultaneously circumscribe punishment: “[A] punishment is ‘excessive’ and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.”256

Supposing there is some retributive upper limit in the Excessive Fines Clause, the result is hardly fatal for income-based fines. As already discussed, income-based fines could serve purely retributive ends according to a theory of subjective retribution. Powell’s discussion in Rummel suggests that the rationale behind the retributive upper limit is a fear that the nonretributive view is inadequate because it allows barbaric sentences in the name of interests like deterrence and incapacitation. But from the perspective of subjective retribution, a heavy fine imposed on a wealthy person is no more barbarous than a similarly proportioned fine on a person without means. Rather, a fine might be gratuitous given the percentage of a person’s income it entails—a total financial wipeout is different than a fine that represents 1 percent of income—but not based on its absolute magnitude. For this reason, it’s by no means obvious that the logic behind a retributive upper limit applies when income-based fines—rather than prison or the thumbscrew—are on the table.

Perhaps counterintuitively, it may be easier to defend income-based fines in terms of subjective retribution than on the basis of deterrence. Wealthy offenders will attack the deterrence rationale by arguing that a lower financial sanction would have sufficed to dissuade their conduct, and one can imagine evidence, empirical and otherwise, to support such an argument. A similar challenge to a fine as overly retributive, given the relative subjectivity of that judgment and the resultant paucity of available evidence to support it, could be more likely to come across as an attempt to have a court substitute its own assessment of the gravity of an offense for that of the legislature.257 Likewise, if subjective retribution is recognized as a legitimate goal, a $100,000 fine imposed on a millionaire and a $100 fine on someone earning $10,000 a year will rise and fall together, giving courts little room to police burdensome fines on the wealthy without disrupting a system of financial sanctions they have long abided.

If, nonetheless, a retributive upper limit operates as a relationship between the absolute value of a fine and the gravity of the offense, a Finland-style system without a ceiling on the size of income-based fines is out of the question. That said, governments could still proportion fines to income so long as they cap maximum fines at levels related to offense seriousness; and given the deference generally afforded states in setting punishment, these caps could likely be quite high. Indeed, when fines are imposed for serious offenses like felonies—in addition to, or in lieu of incarceration—the Excessive Fines Clause would seem to pose little obstacle to income-based fines with hefty maximums. After all, if a sentence of twenty-five years to life is not grossly disproportional to the gravity of shoplifting three golf clubs, one would presume that a financial sanction, even one in the hundreds of thousands or millions of dollars, could likewise pass muster. It would be odd indeed if the Court were to more aggressively constrain financial sanctions—which “cannot approximate in severity the loss of liberty that a prison term entails”258—than incarceration, at least so long as the Excessive Fines Clause is thought to embody the same standard of gross disproportionality as the Cruel and Unusual Clause.259

As for the punishment of less serious offenses—from misdemeanor crimes to parking violations260—lower caps will be necessary, but here too legislatures have room to scale fines to income. The one-size-fits-all nature of tariff fines means that, under the status quo, monetary penalties may frequently undersanction relative to desire, even in purely retributive terms. Thus, even for low-level offenses, governments could set maximum fines high enough to fully reflect society’s desire to sanction, with penalties scaling down from there as offender income declines.

1. Due process and grossly excessive punitive damages awards.

Finally, because the Court has held that due process places substantive limitations on “grossly excessive” punitive damage awards in civil suits261 using a test that is closely related to the Eighth Amendment’s standard of gross disproportionality,262 it is worth briefly investigating how that line of cases could inform the constitutionality of income-based fines.263

First, while the Court’s punitive damages cases also veer between the retributive and nonretributive models of proportionality,264 the Court has expressly discussed the role that wealth can play in determining the size of punitive awards. To resummarize O’Connor’s view of offender wealth and punitive damages: because the Constitution does not mandate any one penological or economic theory and because there is clear historical precedent for taking financial circumstances into account when setting fines, the state is entitled to do so.265 But in the same passage, O’Connor suggested nonetheless that there is “a substantive ceiling on the amount of a monetary sanction,”266 which may indicate that in her view there is yet some retributive upper limit, whether it be relative or absolute.

Breyer’s concurrence in BMW of North America, Inc v Gore267 confronted the same subject.268 That case concerned a jury award of $4 million in punitive damages against a car seller who failed to tell a buyer that his car had been repainted prior to sale—an omission that meant the car was worth $4,000 less than expected.269 On appeal, the Alabama Supreme Court reduced the award to $2 million in punitive damages—the amount it deemed constitutionally reasonable.270 Agreeing with the Court that the punitive damages award violated due process, Breyer stressed that the test applied by the Alabama Supreme Court to rein in the jury’s verdict was incapable of “significant[ly] constrain[ing]” jury awards or “protect[ing] against arbitrary results.”271 Notable for our purposes, he observed that the Alabama test expressly considered the “financial position” of the defendant but that this factor was hardly any constraint on the jury’s verdict:

Since a fixed dollar award will punish a poor person more than a wealthy one, one can understand the relevance of [the financial position of the defendant] to the State’s interest[s]. . . . This factor, however, is not necessarily intended to act as a significant constraint on punitive awards. Rather, it provides an open-ended basis for inflating awards when the defendant is wealthy. . . . That does not make its use unlawful or inappropriate; it simply means that this factor cannot make up for the failure of other factors, such as “reprehensibility,” to constrain significantly an award that purports to punish a defendant’s conduct.272

On its own, this passage could suggest that Breyer sees the need for some retributive upper limit—grounded in the reprehensibility of a defendant’s conduct—to constrain punitive awards driven by the wealth of a defendant. Later, however, Breyer frames his conclusion in nonretributive terms—that is, as a failure by the Alabama Supreme Court to provide any economic rationale connecting the size of the award to the state’s interests, nor any other community understanding, historical practice, or legislative standard to explain the award as something other than unfettered discretion.273 A system of income-based fines, grounded in a theory of effective deterrence and subjective retribution, and proportioning punishment according to a set formula, would presumably escape the same verdict. As the Court has elsewhere observed, variation in punitive damages awards “might be acceptable or even desirable if they result from judges’ and juries’ refining their judgments to reach a generally accepted optimal level of penalty and deterrence . . . while producing fairly consistent results in cases with similar facts.”274

Finally, in State Farm Mutual Automobile Insurance Co v Campbell,275 the Court invalidated an award of $145 million in punitive damages that the Utah Supreme Court rationalized, in part, by reference to the defendant corporation’s substantial assets.276 In finding that award far in excess of constitutional limits, the Court observed that the defendant’s wealth was one of many factors considered by the Utah Supreme Court that “had little to do with the actual harm sustained by the [plaintiffs].”277 And citing Breyer’s concurrence in BMW, the Court declared—with frustratingly little explanation—that “[t]he wealth of a defendant cannot justify an otherwise unconstitutional punitive damages award.”278 Perhaps the most natural reading of that statement reflects a retributive view: that wealth cannot drive too great a departure from deserts. But it is also susceptible to a nonretributive one: that a state taking wealth into account must explain how doing so meaningfully furthers its interests—in other words, that wealth is not a trump card that renders a damages award, otherwise unhinged from the state’s legitimate interests, per se constitutional.

Next, because the Court has imposed a rough mathematical constraint on the magnitude of punitive damages in civil cases, it is tempting to ask whether a similar rule could be transposed into the context of excessive fines. Though “reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award” the Court has said that, “in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”279 Punitive damages within the single-digit range, by contrast, “are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution,” than higher-ratio awards.280 Thus, it has for example struck down punitive damages awards that were 145 times281 and 500 times282 the compensatory amount.

Translating this rule into the excessive fines context would do little to help guide courts in applying the gross disproportionality standard, at least when the offense itself does not express harm as a monetary value. Consideration of the “ratio” of punitive damages to harm rests on “a piece of information that [most] criminal cases” and most civil offenses lack: “[A]n indication of the gravity of the offense that uses the very currency in which punishment is to be meted out.”283 To be sure, some civil and criminal offenses offer an indication, albeit incomplete, of monetary loss: in New York, for example, grand larceny in the fourth degree is the theft of property worth more than $1,000.284 But in the typical case, such as distribution of narcotics or a speeding ticket, the harm caused by an offense is never defined in monetary terms. If the Court were nonetheless inclined to find some objective, mathematical rule of thumb to rein in the role that income may play in setting fines, there are options available. For instance, it could fix a ratio between the absolute value of the lowest and highest authorized fines, meaning that a statute with a minimum fine of $10 could not, on the basis of income, set a maximum higher than $100, or ten times greater. But given the Court’s general reluctance to adopt bright-line rules in its gross disproportionality jurisprudence—especially in the criminal context—development along these lines is unlikely.

Conclusion

Fines are a dominant feature of American life, as certain as death and taxes. In every facet and context, they play some role in regulating behavior and expressing society’s moral reprobation. Perhaps because of that ubiquity, the way we impose fines is taken for granted, as if it were a law of nature that fines exact the same price from every offender, no matter her income. But as this Article has suggested, there is an alternative to the status quo, and it aligns at least as well with our intuitions about justice and the purposes of punishment. As more people awaken to the burden that criminal justice debt imposes on the poor, there may be an opportunity for a larger reconceptualization of financial sanctions. At a minimum, the tariff fine is an aspect of our justice system ripe for experimentation.

As for whether the federal Constitution is any barrier to income-based fines, some doctrinal questions are unsettled, but enough is clear that governments should not hesitate to pursue reform out of fear that those efforts will founder in court. Changes that reduce the burden that tariff fines place on the poor, the most urgent policy task, face no obstacle. A system that imposed hefty financial sanctions on those at the very top of the income scale could face complications, but the resulting problems are manageable and can largely be avoided with caps on the size of fines. Whether or not the million-dollar parking ticket is desirable or constitutionally permissible, introducing some measure of progressivity into financial sanctions is an idea whose time has come.