Restitution and the Excessive Fines Clause

NOTES

RESTITUTION AND THE EXCESSIVE FINES CLAUSE

Nathaniel Amann*

ABSTRACT

A criminal conviction often, if not always, involves the imposition of f‌inancial

penalties on a defendant. Such penalties can be catastrophically debilitating for

defendants. With such severe consequences possible, it is of little wonder the

Eighth Amendment’s prohibition on excessive f‌ines exists. However, the exact

state of the law surrounding the Excessive Fines Clause is anything but clear,

especially when it comes to purportedly “remedial,” rather than punitive, pay-

ments. Under current Supreme Court doctrine, purely remedial payments might

not be constrained by the Excessive Fines Clause at all. This understanding has

serious consequences for criminal defendants who frequently f‌ind themselves

saddled with such payments. Remedial payments frequently come in the form of

“criminal restitution” – a theoretically remedial payment that has seen growing

popularity over the years. To partly address this blind spot in the law of the

Excessive Fines Clause, this Note uses a historical lens to explore whether the

Excessive Fines Clause is meant to constrain criminal restitution. It explores

the origins of the Excessive Fines Clause and follows its gradual development

until the day it was incorporated into the Bill of Rights.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206

I. MODERN COURTS’ CONCEPTIONS OF RESTITUTION . . . . . . . . . . . . . . . . . 208

A. The Supreme Court & Restitution . . . . . . . . . . . . . . . . . . . . . 208

B. State Courts & Restitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

II. ENGLISH UNDERSTANDINGS OF EXCESSIVE FINES. . . . . . . . . . . . . . . . . . 213

III. AMERICAN UNDERSTANDINGS OF THE EXCESSIVE FINES CLAUSE . . . . . . . 216

A. State Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217

B. Common Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224

* Georgetown University Law Center, J.D. 2020; Gallaudet University, B.A. 2017. My strongest thanks to

Dean William Treanor and Professor John Mikhail for inspiring this Note with their class on the framing and

ratif‌ication of the Constitution. My thanks also extend to the American Criminal Law Review staff for all of their

hard work in helping prepare this Note for publication. Lastly, I cannot thank my family and the deaf community

enough for all they have done for me throughout my life. I hope to do the deaf community proud in all of my

future endeavors. © 2021, Nathaniel Amann.

205

INTRODUCTION

Modern criminal restitution is a unique beast that has seen growing usage over

time.

1

It is one of the most common remedies granted to crime victims in the mod-

ern criminal justice system.

2

Although use of restitution has grown, a crucial ques-

tion associated with restitution remains unanswered: whether the Eighth

Amendment’s Excessive Fines Clause constrains such awards.

3

The Eighth

Amendment to the U.S. Constitution states that “[e]xcessive bail shall not be

required, nor excessive f‌ines imposed, nor cruel and unusual punishments

inf‌licted.”

4

The Supreme Court has not resolved the question of whether the word

“f‌ines” includes restitution awards, and there is conf‌lict in the lower courts.

On the surface, this question may seem to be of little value—after all, restitution

has been traditionally understood to be a disgorgement of the defendant’s wrongful

gains, or “forc[ing] a defendant to disgorge a prof‌it wrongfully taken.”

5

Under

such a conceptualization, restitution could never actually violate the Excessive

Fines Clause because disgorgements would always be proportionate to the wrong

that the defendant committed.

6

However, in the modern criminal justice system,

the value of restitutionary awards can be entirely disconnected from the defend-

ant’s gain.

7

Instead, modern criminal-justice restitution awards are often based on

the victim’s purported loss, which is a characteristic better described as compensa-

tory rather than restitutionary.

8

With this expansion of restitution to include losses

borne by the victim, the opportunity arises for the imposition of huge and dispro-

portionate—yet purportedly restitutionary—judgments on defendants.

9

For example, suppose a criminal defendant is charged with, and found guilty of,

assault on another person. Suppose further that, in committing the assault, the de-

fendant gained nothing of pecuniary value. Under California law, a court must

issue a “restitution order” compelling the defendant to “fully reimburse the victim

. . . for every determined economic loss incurred as the result of the defendant’s

criminal conduct . . . .”

10

So, if the victim suffered $10,000 in medical expenses,

1. Courtney E. Lollar, What Is Criminal Restitution?, 100 IOWA L. REV. 93, 97 (2014).

2. See Kevin Bennardo, Restitution and the Excessive Fines Clause, 77 LA. L. REV. 21, 21 (2016) (citing

Cortney E. Lollar, Punitive Compensation, 51 TULSA L. REV. 99, 103–04 (2015)).

3. Id. at 21; see infra Part II.

4. U.S. CONST. amend. VIII.

5. Lollar, supra note 1, at 101–02. Restitution is also occasionally known as victim compensation. Id.

6. The current test for whether the Excessive Fines Clause has been violated is the disproportionality test: “If

the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense, it is

unconstitutional.” United States v. Bajakajian, 524 U.S. 321, 337 (1998). Since traditional restitution is purely

based on the defendant’s wrongful gain and requires him to discharge that amount and nothing else,

restitutionary awards, by nature, cannot be disproportionate to the wrong committed. Lollar, supra note 1, at 101.

7. Lollar, supra note 1, at 101–02.

8. Id. at 102.

9. Because criminal restitution now allows for payments to be based on something else than the defendant’s

gain, it is now possible for the payment to be disproportionate to the defendant’s wrong. See id.

10. CAL. PENAL CODE § 1202.4(f)(3).

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