THE BURDENS OF THE EXCESSIVE FINES CLAUSE.

• Author: Colgan, Beth A.

TABLE OF CONTENTS INTRODUCTION 410 I. SETTING THE SCOPE OF THE INQUIRY 415 A. The Excessiveness Inquiry 416 B. Reconciling Mathews and Medina 418 II. THE ASSIGNMENT OF BURDENS 432 A. Interests at Stake in Assigning Burdens 433 1. Governmental Interests 433 2. Private Interests 443 B. Burden of Raising the Excessive Fines Claim 450 1. Contemporary Considerations 451 2. Historical Evidence 454 3. Assignment 459 C. Burden of Production 461 1. Contemporary Considerations 462 2. Historical Evidence 464 3. Assignment 467 D. Burden and Standard of Persuasion 468 1. Contemporary Considerations 469 2. Historical Evidence 475 3. Assignment 479 a. Burdens of Persuasion 479 b. Standards of Persuasion 480 i. Financial Effect 481 ii. Excessiveness of Fines, Fees & Forfeitures: Criminal 484 iii. Excessiveness of Fines, Fees & Forfeitures: Civil 487 iv. Excessiveness of Restitution 488 III. ADDRESSING CASES INVOLVING MULTIPLE FORMS OF PUNISHMENT 490 CONCLUSION 496 INTRODUCTION

In 2019, the California Supreme Court took a rare step in the development of the Eighth Amendment's Excessive Fines Clause jurisprudence, directing the parties in a pending case to answer a question that is straightforward only on its surface: Who carries the burden of proof in establishing the financial effect of a fine for purposes of the excessiveness inquiry--the person fined or the government? (1) This question is noteworthy not only because it had not been a central issue as a series of related cases wound their way through California's intermediate appellate courts, (2) but also because the assignment of burdens of proof in the excessive fines setting has effectively been taken for granted. (3) In the few cases that reference burdens of proof, the lower courts presume the burden is on the defendant either without meaningful analysis or citation to authority, (4) or by reference to the placement of burdens on the person challenging a non-financial punishment as cruel and unusual without consideration of any potentially relevant distinctions between the Eighth Amendment's Excessive Fines and Cruel and Unusual Punishments Clauses. (5)

The question the California Supreme Court posed is of no small matter. While the United States Supreme Court has interpreted the Excessive Fines Clause to outlaw economic sanctions when their severity is grossly disproportionate to the seriousness of the offense, (6) it has not addressed who must prove the case and by how much. (7) Yet, the assignment of burdens of proof is not just a secondorder problem to the question of the scope of the Clause's protections; rather, that assignment is essential to its enforcement. (8) Burdens of proof may make it harder--or easier--for the government to abuse the revenue-generating capacity of economic sanctions by imposing punishments out of proportion with its legitimate penal aims, including sanctions which may create or entrench poverty for people and their families, particularly in heavily policed communities of color.

To answer this question, this Article begins by offering a framework that reconciles incoherence within the U.S. Supreme Court's due process doctrine, the situs of the Court's jurisprudence on the assignment of burdens of proof. In Mathews v. Eldridge, the Court announced a three-part test for assessing procedural rules in which consideration is given to governmental interests, private interests, and the risk that the rule--in this case, the burden--will exacerbate the likelihood of an erroneous decision. (9) In subsequent years, the Court relied on that test for assessing the fundamental fairness of both criminal and civil procedural rules. (10) But after sixteen years of employing the Mathews test, the Court muddied the waters in Medina u. California." Acting out of deference to state lawmakers in establishing penal laws, the Medina Court stated it was rejecting the application of Mathews in the criminal sphere, replacing it with a test that required an examination of whether the assignment of a burden "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." (12) But Medina and its progeny have left unclear the role history is to play: Is it a gatekeeper or merely probative evidence?

If the current doctrine is interpreted so that the historical record serves as a gatekeeper, lawmakers could entrench their ability to abuse the prosecutorial power and thereby extract revenues through economic sanctions--the exact thing the Clause is designed to prevent. They could do so by placing onerous burdens on a person raising a challenge simply because the available historical record cannot be used to establish a long-standing practice as to the assignment of burdens. The historical record related to the Excessive Fines Clause reveals why that approach is nonsensical. The record exposes a long history of abuse, dating back at least to Magna Carta, whereby governments have repeatedly exploited the prosecutorial power, using economic sanctions to generate revenue as a tax-avoidance mechanism by imposing exorbitant fines on people who were politically vulnerable. (13) Even if procedural rules had been established in those periods, they would be tainted by those abuses, the antithesis of fundamental fairness. The historical record on procedures related to the excessiveness of economic sanctions is also limited by a variety of other factors, including a lack of attention to economic sanctions by commentators, changes in litigation methods, and conflicting historical practices. (14)

There is, however, a way to reconcile the doctrine. Mathews allows us to focus on modern conceptions of risk: Will the assignment of burdens significantly interfere with an important government function, what risks does a person face if the determination is wrong, and how within the particular inquiry would the burden affect the decision maker's ability to reach a proper conclusion? History can aid in thinking through those questions. The longstanding history of abuse, for example, helps make plain that otherwise well-recognized government interests, such as the interest in imposing punishment for wrongdoing, must be taken with greater caution. (15) But for the record to be used appropriately, we must be honest about its limitations, taking into account those abuses, refusing to fill in the blanks where the record is incomplete, and recognizing and respecting anachronisms. In other words, under this approach history can serve as a partner with, rather than a gatekeeper to, modern understandings of fundamental fairness.

With that framework for assessing fundamental fairness in mind, this Article turns to the assignment of burdens of proof for excessive fines claims. It does so by breaking the "burden of proof into its component parts: the burden to raise an excessive fines claim, the burden of producing evidence related to the claim, the burden of persuading the decision maker as to the result, and the standard of proof to be employed in making that determination. For all of the burdens, the governmental interests remain the same: the interest in responding to violations of the law; in removing the means of committing crimes and the proceeds generated by them from the hands of those who offend; in restoring victims of crime through financial support; in avoiding unnecessary administrative and economic costs; in ensuring that the operation of legal systems comports with the Constitution; and in protecting its own legitimacy. (16) So, too, the private interests at stake: no matter the burden, people upon whom excessive fines are imposed face the risk of financial precarity that prevents them and their families from meeting basic human needs, subjects them to highly punitive and stigmatizing responses to nonpayment and further punishment, and strips their communities of access to the resources that may otherwise allow them better opportunities to thrive and engage in full civic participation. (17)

Disentangling the various aspects of the burdens of proof allows a more exacting focus of the third Mathews consideration: the way in which an assignment of each particular burden may exacerbate the risk that an erroneous determination--or even no determination at all--will be reached as to the excessiveness of fines. Attending to the burden of raising an excessive fines claim prompts an inquiry into what structures lawmakers have created that would prevent such claims from being raised, such as a denial of counsel or other system designs that render challenges unlikely. (18) Distinguishing the burden of production allows us to move beyond assumptions about the challenger having access to all information regarding their ability to pay or absorb economic sanctions and to recognize that the government has unique access to information about the vast apparatus it has created--including its collections mechanisms, penalties for nonpayment, and collateral consequences of conviction--that directly relate to the severity of the punishment. (19) Focusing precisely on the burdens and standards of persuasion better attends to the risks created by the inherently imprecise nature of assessing overall excessiveness and financial effect, the racial and cultural biases that may infect those determinations, and the lack of opportunities for reversing the improper imposition of excessive sanctions. (20)

This Article proceeds in three parts. Part I begins by identifying the two places within the excessive fines inquiry for which burdens of proof remain unassigned: the determination of financial effect of the economic sanction for the purpose of establishing punishment severity, and the ultimate determination that sanctions are constitutionally excessive. It then sets out and proposes a way of reconciling the Mathews-Medina conundrum that allows history to play a role without unduly predominating the due process inquiry. Part II then applies that...