Restitution and the Excessive Fines Clause

AuthorKevin Bennardo
PositionClinical Associate Professor of Law, University of North Carolina School of Law.
Pages21-45
Restitution and the Excessive Fines Clause
Kevin Bennardo*
INTRODUCTION
Restitution is an important component of a criminal offender’s
sentence. Increasingly, it is imposed mandatorily and encompasses an
ever-widening scope of payments.1 Because courts commonly impose
restitution regardless of the offender’s ability to pay,2 it is often the last
part of an offender’s sentence to be discharged. Yet the constitutional
limits of a sentencing court’s ability to impose a restitution order on a
criminal defendant are murky. The seemingly straightforward question of
whether the Excessive Fines Clause of the Eighth Amendment applies to
restitution orders has not been answered, despite the fact that both have
been around for well over 200 years.
This Article offers solutions to further the conversation regarding the
Eighth Amendment’s limits on restitution. The Excessive Fines Clause
applies to payments that involve sufficient governmental involvement and
are at least partially punitive.3 Criminal restitution satisfies both
components and therefore falls within the compass of the Clause. To test
for constitutional excessiveness, the amount of the restitution order should
be aggregated with other monetary payments that constitute the Eighth
Amendment “fine.” That cumulative fine should then be weighed against
the gravity of the defendant’s offense conduct for gross disproportionality.
Restitution should not be subjected to a special causation-based
excessiveness test because causation is predominantly relevant to the
compensatory aspect of restitution, not to its punitive aspect.
Part I of this Article provides an overview of restitution systems and
statutes in the United States. Part II provides an overview of the case law
interpreting the Excessive Fines Clause of the Eighth Amendment. Part III
discusses how the Excessive Fines Clause should be applied to restitution
in criminal cases.
Copyright 2016, by KEV IN BENNARDO.
Clinical Associate Professor of Law, University of North Carolina School
of Law. Many thanks to the editors, participants, and audience members at the
Louisiana Law Review and Pugh Institute’s joint sentencing symposium for their
perspectives.
1. See Cortney E. Lollar, Punitive Compen sation, 51 TULSA L. REV. 99,
103–04 (2015).
2. See infra P art I.
3. See infra P art II.A, C.
22 LOUISIANA LAW REVIEW [Vol. 77
I. AN OVERVIEW OF CRIMINAL RESTITUTION
Criminal restitution systems take various forms in the United States.
These systems have several defining characteristics: the types of offenses
that authorize restitution, the persons who are eligible to receive restitution
payments, the types of harms or losses that are recoverable in restitution,
and whether an order of restitution is mandatory, discretionary, or subject
to exceptions.
In the federal system, a court may order restitution for the violation of
any offense.4 The Mandatory Victim Restitution Act of 19965 (“MVRA”)
requires mandatory restitution for a wide range of offenses. Examples include
crimes of violence;6 offenses against property; offenses relating to tampering
with consumer products; and offenses relating to theft of medical products, as
long as at least one identifiable victim has suffered a physical injury or
pecuniary loss.7 Other statutory provisions mandate restitution for specific
offenses, including sexual abuse;8 sexual exploitation and other abuse of
children;9 domestic violence and stalking;10 telemarketing fraud;11 peonage,
slavery, and human trafficking;12 and failure to pay child support
obligations.13
Restitution is generally recoverable by the “victim” of an offense.14 The
MVRA defines a victim as “a person directly and proximately harmed as a
result of the commission of an offense for which restitution may be
4. 18 U.S.C. § 3663(a)(1)(A) (2012) (permitting restitution for all offenses
under Title 18, violations o f the Controlled Substances Act, and criminal
violations of Title 49 relating to air piracy); see also 18 U.S.C. § 3556 (2012).
Restitution may also be ordered as a condition of probation or supervised release.
See 18 U.S.C. §§ 3563(b)(2), 3583(d)(3) (2012).
5. 18 U.S.C. § 366 3A (2012).
6. A crime of violence is an offense that either “has as an element the use,
attempted use, or threatened use of physical force against the person or property
of another” or “is a felony that, by its nature, involves a substantial risk that
physical force again the person or property of another may be used in the co urse
of committing the offense.” 18 U.S.C. § 16 (2012).
7. 18 U.S.C. § 366 3A(c)(1) (2012).
8. 18 U.S.C. § 224 8 (2012).
9. 18 U.S.C. § 225 9 (2012).
10. 18 U.S.C. § 2264 (2012).
11. 18 U.S.C. § 2327 (2012).
12. 18 U.S.C. § 1593 (2012).
13. 18 U.S.C. § 228( d) (2012).
14. See, e.g., 18 U.S.C. § 3663A(a)(1) (2012).

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