The Excessive Fines Clause: Challenging the Modern Debtor’s Prison

In this article, UCLA Law Professor Beth Colgan suggests the Eight Amendment’s Excessive Fines Clause may be a better, albeit underdeveloped, provision to address the epidemic of debtor’s prisons. The Fourteenth Amendment addresses post- sentencing collections but the Excessive Fines Clause can be used at sentencing. Moreover, Colgan argues that her analysis of the Excessive Fines Clause cases could be used to achieve structural change as well as individual protection for defendants.

The first section of the article explores the scope of the term fines. The Supreme Court considers a fine as an economic sanction that is partially punitive. The author recommends a subjective approach to determine what is punitive and concludes that fees, surcharges, costs, and restitution should be subject to the excessive fines clause. Next, the author examines excessiveness and the proportionality of fines. She examines five key principles that arise from the Court’s approach to the Cruel and Unusual Punishments clause. Colgan examines equality in sentencing, proportionality and the seriousness of the offense, the expressive function of the punishment (whether the punishment effectively reflects society’s condemnation of the crime and what the punishment conveys to the defendant), recidivism, and the dignity of the defendant. She concludes that an individual’s economic circumstances must be a factor in determining excessiveness. Further, in Part B, the author highlights that the Court is attempting to abandon “to-a-sovereign restriction”. Should it be done, the Excessive Fines Clause could be used to address mandatory fees paid to private probation companies.

Throughout the article Colgan quotes several people who were actually affected by the excessive fines and fees. People sacrifice their basic needs, endure humiliation from judges and the court staff, and are sometimes prevented from civic participation such as voting. The author concludes that the Excessive Fines Clause is a powerful weapon in the fight to achieve criminal justice reform.

You can read the full text of this law review article here.

Beth A. Colgan, Associate Professor of Law, UCLA School of Law
UCLA Law Review