In September 2018, as part of a separate class-action lawsuit filed by the Institute for Justice, Philadelphia reached a sweeping settlement that ended many of the city’s abusive practices; law enforcement was banned from funding itself through forfeiture. Thanks to the state supreme court and the settlement agreement, Pennsylvania homeowners now have some of the strongest protections against civil forfeiture and excessive fines. Critically, the ruling was only possible because the Pennsylvania Supreme Court held that the excessive-fines clause did in fact apply to the states. The Timbs ruling at the U.S. Supreme Court lays the groundwork for further constitutional challenges in other states.
While the battle over the excessive-fines clause continues to play out in the courts, legislative reforms can strengthen this forgotten constitutional right in four ways.
First, the rules for whether a fine should be imposed at all need to be rewritten. How harmful is the offense? Is the crime really something that should be punished by the justice system?
Second, for offenses that do merit fines, courts should establish hearings to gauge someone’s capacity to pay. As the UCLA assistant law professor Beth Colgan has written, courts can readily use “objective measurements of well-being, such as income and basic living expenses” to determine the ability to pay. Meanwhile, any imposed fines must not be so punitive that they infringe on the ability to earn an honest living. If the courts deem fines and fees excessive, they must lower these fees accordingly, and they should also offer community service as a viable alternative.
Third, in keeping with the spirit of salvo contenemento, states should repeal laws that end up impeding a person’s livelihood unnecessarily. California, Maine, Mississippi, and Washington, D.C., have all stopped suspending driver’s licenses for unpaid debt. And since 2015, 18 states have eased occupational-licensing barriers for ex-offenders.
But above all, reformers should eliminate the profit incentive that drives municipal gouging. Traffic and code violations should be handled by state courts (as in Kentucky), rather than city or municipal courts, since they are further removed from a city’s desire to profit from excessive fines.
Over the summer, San Francisco became the first city in the country to repeal its locally imposed criminal-justice fees, although defendants will still have to pay any fines and fees mandated by state law. San Francisco is also expected to wipe away more than $15 million in court debt for 20,000 people, a move that would only cost the local government $1 million in foregone revenue, thanks to low collection rates. More cities should follow suit.
Moreover, any and all revenue from forfeitures, fines, and fees should be sent to a neutral fund, overseen by a democratically elected body that the public can hold accountable at the ballot box. For instance, under the North Carolina Constitution, “the clear proceeds of all civil penalties, forfeitures, and fines” must be deposited into the state’s public-school fund.
“In a free government, almost all other rights would become utterly worthless, if the government possessed an uncontrollable power over the private fortune of every citizen,” Supreme Court Justice Joseph Story wrote in 1833. “One of the fundamental objects of every good government must be the due administration of justice; and how vain it would be to speak of such an administration, when all property is subject to the will or caprice of the legislature, and the rulers.”