Amicus Curiae Brief — Tyson Timbs, Petitioner v. Indiana

No. 17-1091

IN THE

Supreme Court of the United States

TYSON TIMBS and

A 2012 LAND ROVER LR2,

Petitioners,

v.

STATE OF INDIANA,

Respondent.

On Writ of Certiorari

to the Supreme Court of Indiana

BRIEF OF THE AMERICAN BAR

ASSOCIATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

ROBERT N. WEINER

ANDREW T. TUTT

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Mass. Ave., NW

Washington, DC 20001

(202) 942-5855

robert.weiner@

arnoldporter.com

ROBERT M. CARLSON

Counsel of Record

AMERICAN BAR ASSOCIATION

321 N. Clark Street

Chicago, Illinois 60654

(312) 988-5000

abapresident@

americanbar.org

Counsel for Amicus Curiae the American Bar Association

TABLE OF CONTENTS

Page

Table of Authorities.................................................... ii

Interest of Amicus Curiae .......................................... 1

Constitutional Provisions Involved ........................... 4

Introduction and Summary of Argument .................. 4

Argument .................................................................... 7

I. It Is a “Fundamental Right” in a Free

Society that Justice Be Equal in Substance

and Availability, Without Regard to

Economic Status .................................................. 7

II. A Key Function of the Excessive Fines

Clause is to Ensure Equity in the Imposition

of Fines ............................................................... 10

III. Empirical Evidence Confirms that Excessive

Fines Undermine Equal Justice ....................... 13

A. Excessive Fines Disproportionately

Burden the Poor ........................................... 13

B. Excessive Fines Disproportionately

Burden Communities and Persons of

Color .............................................................. 17

IV. The Excessive Fines Clause Protects the

Fundamental Right to Equal Justice................ 22

Conclusion ................................................................ 24

i

TABLE OF AUTHORITIES

Page(s)

Cases

Bearden v. Georgia,

461 U.S. 660 (1983)....................................... 9, 14, 22

Bounds v. Smith,

430 U.S. 817 (1977)................................................... 9

Burns v. Ohio,

360 U.S. 252 (1959)................................................... 8

Cochran v. Kansas,

316 U.S. 255 (1942)................................................... 9

Douglas v. California,

372 U.S. 353 (1963)................................................... 8

Draper v. Washington,

372 U.S. 487 (1963)................................................... 8

Duncan v. Louisiana,

391 U.S. 145 (1968)................................................. 22

Eskridge v. Wash. State Bd. of Prison Terms

& Paroles,

357 U.S. 214 (1958)................................................... 8

Evitts v. Lucey,

469 U.S. 387 (1985)................................................... 8

Ex parte Hull,

312 U.S. 546 (1941)................................................... 9

Georgia v. Brailsford,

3 U.S. 1 (1794) .......................................................... 7

Gideon v. Wainwright,

372 U.S. 335 (1963)..................................... 1, 2, 8, 22

Griffin v. Illinois,

351 U.S. 12 (1956)..................................................... 8

Gulf, C. & S.F. Ry. Co. v. Ellis,

165 U.S. 150 (1897)................................................... 7

ii

iii

Cases—Continued

Page(s)

Johnson v. Avery,

393 U.S. 483 (1969)................................................... 9

Marbury v. Madison,

5 U.S. 137 (1803)....................................................... 7

McCoy v. Court of Appeals of Wis., Dist. 1,

486 U.S. 429 (1988)................................................... 8

McDonald v. City of Chicago,

561 U.S. 742 (2010)............................................. 5, 22

McMann v. Richardson,

397 U.S. 759 (1970)................................................... 8

Palko v. Connecticut,

302 U.S. 319 (1937)................................................. 22

Procunier v. Martinez,

416 U.S. 396 (1974)................................................... 9

Smith v. Bennett,

365 U.S. 708 (1961)................................................... 8

Strauder v. West Virginia,

100 U.S. 303 (1879)................................................. 23

Strickland v. Washington,

466 U.S. 668 (1984)................................................... 8

Tate v. Short,

401 U.S., 395 (1971).................................................. 9

United States v. Bajakajian,

524 U.S. 321 (1998)................................................. 12

United States v. Jose,

499 F.3d 105 (1st Cir. 2007) ................................... 12

United States v. Levesque

546 F.3d 78 (1st Cir. 2008) ..................................... 12

United States v. Viloski,

814 F.3d 104 (2nd Cir. 2016) .................................. 12

iv

Cases—Continued

Page(s)

Washington v. Davis,

426 U.S. 229 (1976)................................................. 23

Washington v. Glucksberg,

521 U.S. 702 (1997)................................................. 22

Williams v. Illinois

399 U.S. 235 (1970)................................................... 9

Wolff v. McDonnell,

418 U.S. 539 (1974)................................................... 9

Younger v. Gilmore,

404 U.S. 15 (1971) (per curiam) ............................... 9

Statutes & Constitutional Provisions

U.S. Const. amend VIII ......................................... 4, 11

U.S. Const. amend. XIV .................................... passim

28 U.S.C. § 453 ............................................................ 7

Judiciary Act of 1789, 1 Stat. 76 § 8 ........................... 7

American Bar Association Materials

ABA, Ten Guidelines on Fines and Fees (Aug.

2018) ................................................................ passim

ABA, Report of the Task Force on Building

Public Trust in the American Justice System (Jan. 2017) ......................................................... 2

ABA Standards for Criminal Justice

Sentencing................................................................. 3

ABA Resolution 110 (Aug. 2004) ................................ 3

ABA Resolution 111B (Aug. 2016) .............................. 3

ABA Resolution 112C (Aug. 2017) .............................. 3

ABA Resolution 114 (Aug. 2018) Report .............. 2, 13

v

Page(s)

Justice Lewis F. Powell, Address at Legal Services Corporation: A Presidential Program of

the Annual Meeting of the American Bar Association (Aug. 10, 1976) .......................................... 6

Addresses

Newspaper Articles

Counsel for Poor Acclaimed by Bar:

American Association Hails Supreme Court

Rulings, N.Y. Times, Mar. 21, 1963......................... 2

James E. Clayton, States Have Helped

Whittle Away Own Rights: 30 Years of

Revolution, Wash. Post, Mar. 24, 1963 .................... 2

Books & Book Chapters

Alexes Harris, A Pound of Flesh: Monetary

Sanctions as Punishment for the Poor (2016) ........ 14

Beth A. Colgan, Fines, Fees, and Forfeitures,

in 4 Reforming Criminal Justice: Punishment, Incarceration, and Release (Erik Luna ed. 2017) ............................................................. 16

Douglas Blackmon, Slavery by Another Name

(2008)....................................................................... 21

Eric Foner, Reconstruction: America’s

Unfinished Revolution, 1863-1877 (1988).............. 21

George McCutcheon McBride, Peonage, in 12

Encyclopedia of the Social Sciences (1934) ............ 20

vi

Scholarly Articles

Page(s)

Aremona G. Bennett, Phantom Freedom:

Official Acceptance of Violence to Personal

Security and Subversion of Proprietary

Rights and Ambitions Following

Emancipation, 1865-1910,

70 Chi.-Kent L. Rev. 439 (1994) ............................. 21

Beth A. Colgan, The Excessive Fines Clause:

Challenging the Modern Debtors’ Prison,

65 UCLA L. Rev. 2 (2018)....................................... 16

Beth A. Colgan, Lessons from Ferguson on

Individual Defense Representation as a

Tool of Systemic Reform,

58 Wm. & Mary L. Rev. 1171 (2017)...................... 16

Alexes Harris et al., Drawing Blood from

Stones: Legal Debt and Social Inequality in

the Contemporary United States,

115 Am. J. Sociology 1753 (2010)........................... 15

Nicholas M. Mclean, Livelihood, Ability to

Pay, and the Original Meaning of the

Excessive Fines Clause,

40 Hastings Const. L.Q. 833 (2013) ....................... 12

Yosal Rogat, Mr. Justice Holmes: A Dissenting Opinion,

15 Stan. L. Rev. 254 (1963) .................................... 21

Note, State Bans on Debtors’ Prisons and

Criminal Justice Debt,

129 Harv. L. Rev. 1024 (2016)................................ 14

Reports

ACLU of Pennsylvania, Guilty Property (2015) ....... 19

vii

Reports—Continued

Page(s)

Back on the Road California, Stopped, Fined,

Arrested: Racial Bias in Policing and

Traffic Courts in California (2016) ........................ 18

Brennan Center for Justice, Criminal Justice

Debt: A Barrier to Reentry (2010)........................... 18

Center For American Progress, Forfeiting the

American Dream (2016).......................................... 19

Economic Advisers Issue Brief, Fines, Fees,

and Bail: Payments in the Criminal Justice

System that Disproportionately Impact the

Poor (Dec. 2015) ...................................................... 17

Rachel L. McLean & Michael D. Thompson,

Repaying Debts (2007) ............................................ 16

United States Department of Justice Civil

Rights Division, Investigation of the Ferguson

Police Department (March 4, 2015)........................ 20

Other Authorities

F.W. Maitland, Pleas of the Crown for the

County of Gloucester (1884) .................................... 11

Glanvill, The Treatise on the Laws and

Customs of the Realm of England (G.D.G.

Hall ed., 1965) ......................................................... 11

Letter from Thomas Monroe Campbell,

Tuskegee Institute, Alabama, to George C.

Schuyler, NAACP (Mar. 3, 1942) ........................... 20

United States Department of Justice Civil

Rights Division, Dear Colleague Letter

(Mar. 14, 2016)........................................................ 20

INTEREST OF AMICUS CURIAE *

The American Bar Association (“ABA”) respectfully submits this amicus brief to urge the Court to

consider the fundamental importance of the right to

equal justice without regard to economic status and

the essential role of the Excessive Fines Clause in

preserving that right.

The ABA is one of the largest voluntary

professional membership organizations in the United

States. The ABA’s more than 400,000 members

include attorneys in private firms, corporations, nonprofit organizations, and government agencies,

including prosecutors and defense counsel, as well as

judges, legislators, law professors, law students, and

non-lawyers in related fields.

The ABA has long recognized that lawyers have a

special obligation to act as stewards of the system of

justice. To that end, as the voice for American

lawyers, the ABA has repeatedly advocated for equal

justice as an essential attribute of the legal system.

Less than a week after this Court held in Gideon v.

Wainwright that a state must provide legal

assistance to defendants too poor to pay for it, the

ABA noted that its preexisting standards for the

protection of indigents anticipated the decision,

which it praised as a “great advance in the

* Pursuant to Supreme Court Rule 37.6, counsel for amicus

curiae state that no counsel for a party authored this brief in

whole or in part, and no party or counsel for a party, or any

other person other than amicus curiae or its counsel, made a

monetary contribution intended to fund the preparation or

submission of this brief. All parties have consented in writing

to the filing of this brief.

1

2

administration of criminal justice.”

James E.

Clayton, States Have Helped Whittle Away Own

Rights: 30 Years of Revolution, Wash. Post, Mar. 24,

1963, at E1; Counsel for Poor Acclaimed by Bar:

American Association Hails Supreme Court Rulings,

N.Y. Times, Mar. 21, 1963, at 5. In the years since

Gideon, the ABA has consistently and forcefully

sought to advance equal justice by submitting

amicus briefs, organizing conferences, and adopting

standards, guidelines, and recommended policies for

courts and legislators.

Most recently, the ABA has focused on how

judicially imposed fines that exceed a defendant’s

ability to pay subvert equal justice. In 2015 the

ABA formed a Task Force to explore issues relating

to the breakdown of trust between law enforcement

and the communities they serve. See ABA, Report of

the Task Force on Building Public Trust in the

American Justice System (Jan. 2017), http://bit.ly/

2QkjZJi. Building on that work, in 2017 and 2018,

the ABA Working Group on Building Public Trust in

the American Justice System addressed the concern

that excessive judicial fines and fees “disproportionately harm the millions of Americans who

cannot afford to pay them, entrenching poverty,

exacerbating racial and ethnic disparities, diminishing trust in our justice system, and trapping

people in cycles of punishment simply because they

are poor.” ABA Resolution 114 (Aug. 2018), Report

at 2, http://bit.ly/2NhGzDy [hereinafter ABA

Guidelines, Report]. In August 2018, the Working

Group proposed, and the House of Delegates

adopted, Ten Guidelines on Fines and Fees, designed

to ensure equal treatment of rich and poor in the

justice system, and to promote fair practices that

consider a defendant’s individual financial circum-

3

stances. See ABA, Ten Guidelines on Fines and Fees

(Aug. 2018), http://bit.ly/2NhGzDy [hereinafter ABA

Guidelines, Comm.].

For example, the Guidelines recommend a

mandatory ability-to-pay hearing before a fine or fee

can be imposed on a defendant. Id. at 7. Another

Guideline urges courts never to incarcerate

individuals solely because they are unable to pay a

fine. Id. at 3. The Guidelines recommend, in addition, that courts and legislatures favor alternatives

to monetary payments by defendants; bar harsh

penalties, including incarceration, when ability to

pay is not willful; guarantee a right to counsel for

those facing fines and fees if nonpayment could

result in incarceration; and protect against improper

collection methods. Id. at 10. The Guidelines, however, are by no means the ABA’s first contribution in

this area. In large part, they refine, consolidate, and

complement earlier ABA policies, criminal standards, and model ethical rules that have sought equal

justice for all defendants without regard to economic

status. See, e.g., ABA Standards for Criminal Justice

Sentencing, Standards 18-2.4, 18-3.16, & 18-3.22,

http://bit.ly/2PHXzRS; see also ABA Resolution 110

(Aug. 2004), http://bit.ly/2P7E8kj (urging compliance

with procedural safeguards when accused persons

are ordered to make a payment for representation

furnished to them at government expense); ABA

Resolution 111B (Aug. 2016), http://bit.ly/2Lx6Zfx

(urging state, local, territorial, and tribal legislatures

to abolish “offender funded” systems of probation

supervised by private, for profit companies); ABA

Resolution 112C (Aug. 2017), http://bit.ly/2Lx7Wo7

(urging that pretrial detention should never occur

solely due to an inability to pay).

4

As the standard-bearer for a profession with a

special obligation to safeguard the system of justice,

the ABA has a paramount interest in the question

presented in this case and can provide the Court a

unique and informed perspective on it.

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment provides: “Excessive bail

shall not be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted.”

The Fourteenth Amendment provides, in relevant

part: “No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Constitution enshrines equal justice as a core

principle of our democracy. The promise of equal

treatment without regard to economic status inheres

in multiple provisions of the Constitution. Indeed,

this Court has treated equal justice as one of the

Constitution’s cardinal guarantees. Again and again

in cases involving the criminal justice system, the

Court has elevated the principle of equal justice over

considerations of cost, administrative ease, and more

potent law enforcement. The Court has guaranteed

criminal defendants a lawyer at both the trial and

appellate level without regard to ability to pay,

barred fees that would prevent access to the courts,

and prohibited differential punishments for those

who can pay fines and those who cannot.

5

The Court has also recognized that imposing the

same requirements or penalties across the board on

defendants presenting a wide array of different

circumstances is not equal justice. A million-dollar

fine, for example, is unlikely to deprive a very rich

person of food, shelter, or livelihood. The same

fine—or even one that is orders of magnitude

smaller—levied on a poor person who cannot pay it

could cast him into an inescapable spiral of debt and

imprisonment.

The Excessive Fines Clause should be a bulwark

against fines that deny equal justice. The Clause

has historically served two functions. First, it has

sought to bar fines so disproportionate to the crimes

they punish that they entrap defendants into endless

cycles of poverty. Second, it has sought to prevent

fines so disconnected from individual defendants’

ability to pay that they render punishment harsher

for poor defendants than for rich ones, potentially

rendering the penalty out of proportion to the offense

by depriving low-income defendants of food, shelter

and livelihood even for relatively minor infractions.

Empirical evidence corroborates how excessive

fines undermine equal justice.

The evidence

demonstrates that excessive fines have a disproportionate impact on the poor, as well as a significantly disparate impact based on race.

This Court has held that a right in the Bill of

Rights must be incorporated into the Fourteenth

Amendment’s Due Process Clause if that right is

“implicit in the concept of ordered liberty” and “so

rooted in the traditions and conscience of our people

as to be ranked as fundamental,” McDonald v. City

of Chicago, 561 U.S. 742, 760-61 (2010).

The

Excessive Fines Clause meets that standard. As dis-

6

cussed below, the historical record shows that equal

justice in the imposition of fines—the objective of the

Excessive Fines Clause—is deeply embedded in the

protections afforded in the criminal justice system.

Further, this Court’s long insistence on equal

treatment in the administration of criminal justice,

without regard to financial means, further demonstrates the centrality of equal justice where a

defendant’s liberty is at stake. Despite this insistence, empirical evidence demonstrates the persistence of inequities in the system of justice, and

corroborates that excessive fines disproportionately

burden the poor and communities of color. That disparate impact implicates additional guarantees and

protections of equal treatment, adding to the combination of attributes that place equal justice at the

core of ordered liberty.

No just society should knowingly subject

defendants to fines they can never pay and then

punish them further for their financial default. Such

denials of equal justice, however, are rampant in

local courts throughout the country, spawning a

renaissance of debtors’ prisons—an institution

ostensibly abolished as inhumane 170 years ago—to

house those who cannot pay the fines imposed upon

them. The prohibition on excessive fines, once identified as the Magna Carta’s most important guarantee, is increasingly important to safeguard the fundamental right to equal justice.

7

ARGUMENT

I. It Is a “Fundamental Right” in a Free Society

that Justice Be Equal in Substance and

Availability, Without Regard to Economic Status

Equal justice without regard to economic status is

a cornerstone of the American justice system. See

Justice Lewis F. Powell, Address at Legal Services

Corporation: A Presidential Program of the Annual

Meeting of the American Bar Association 2 (Aug. 10,

1976), http://bit.ly/2MAO5K3 (“Equal justice under

law is not merely a caption on the facade of the

Supreme Court building; it is perhaps the most

inspiring ideal of our society. It is one of the ends for

which our entire legal system exists. … It is …

fundamental that justice should be the same, in

substance and availability, without regard to

economic status.”).

From its fledgling days to the current era, this

Court has recognized the centrality of equal justice

in the judicial system. John Jay, the first Chief

Justice of the United States, wrote on behalf of this

Court that, “Justice is indiscriminately due to all,

without regard to numbers, wealth, or rank.”

Georgia v. Brailsford, 3 U.S. 1, 4 (1794). The judicial

oath, set forth in the Judiciary Act of 1789 (and

unchanged in relevant part today) required that

judges swear to “administer justice without respect

to persons, and do equal right to the poor and to the

rich.” 1 Stat. 76 § 8; Marbury v. Madison, 5 U.S. 137,

180 (1803); 28 U.S.C. § 453. Less than a century

later, this Court held that “[n]o duty rests more

imperatively upon the courts than the enforcement of

those constitutional provisions intended to secure

that equality of rights which is the foundation of free

8

government.” Gulf, C. & S.F. Ry. Co. v. Ellis, 165

U.S. 150, 160 (1897).

The commitment to equal justice has persisted

over the 225 years since Chief Justice Jay’s

observation. Indeed, this Court has increasingly

come to understand the many ways in which the

principle affects defendants in the criminal justice

system.

Thus, this Court has held that an indigent

defendant may not be denied the assistance of a

lawyer at his trial, Gideon v. Wainwright, 372 U.S.

335, 342-45 (1963), or on direct appeal from

conviction, Douglas v. California, 372 U.S. 353, 35658 (1963). Nor may a state preclude a defendant

from appealing a conviction or denial of collateral

relief solely because of inability to pay a docket fee or

similar charge. Smith v. Bennett, 365 U.S. 708, 71013 (1961); Burns v. Ohio, 360 U.S. 252, 253-58

(1959). The state also must provide an indigent

defendant with a free transcript of trial proceedings

to aid in preparing an appeal of a conviction. Griffin

v. Illinois, 351 U.S. 12, 17-18 (1956); Eskridge v.

Wash. State Bd. of Prison Terms & Paroles, 357 U.S.

214, 214-16 (1958) (per curiam): Draper v.

Washington, 372 U.S. 487, 497-500 (1963). Moreover, this Court has held that States cannot satisfy

this obligation of equal justice by securing nominal

assistance of counsel.

The assistance must be

effective. See McCoy v. Court of Appeals of Wis.,

Dist. 1, 486 U.S. 429, 435 (1988); Evitts v. Lucey, 469

U.S. 387, 395-96 (1985); Strickland v. Washington,

466 U.S. 668, 685-86 (1984); McMann v. Richardson,

397 U.S. 759, 771 n.14 (1970).

This Court has similarly held that prisoners,

perhaps the most economically vulnerable of all

9

litigants, must have meaningful access to the courts.

See Bounds v. Smith, 430 U.S. 817, 828 (1977); Wolff

v. McDonnell, 418 U.S. 539, 579 (1974); Procunier v.

Martinez, 416 U.S. 396, 419 (1974); Younger v.

Gilmore, 404 U.S. 15, 15 (1971) (per curiam);

Johnson v. Avery, 393 U.S. 483, 483, 485 (1969);

Cochran v. Kansas, 316 U.S. 255, 257-58 (1942); Ex

parte Hull, 312 U.S. 546, 549 (1941).

In addition, this Court has implemented the

principle of equal justice by barring courts from

imposing differential punishments on the basis of

economic status. Thus, a State violates the Equal

Protection Clause when it imprisons an indigent

individual solely because he cannot afford to pay a

fine. In Williams v. Illinois, the defendant had

served his prison sentence, but an Illinois statute

required him to remain in jail because he could not

pay the monetary penalty of his sentence. 399 U.S.

235, 236-37 (1970). This Court invalidated the

statute, holding that “the Equal Protection Clause of

the Fourteenth Amendment requires that the

statutory ceiling placed on imprisonment for any

substantive offense be the same for all defendants

irrespective of their economic status.” Id. at 244.

The Court reasoned that, “[s]ince only a convicted

person with access to funds can avoid the increased

imprisonment, the Illinois statute in operative effect

exposes only indigents to the risk of imprisonment

beyond the statutory maximum,” and that “[b]y

making the maximum confinement contingent upon

one’s ability to pay, the State has visited different

consequences on two categories of persons.” Id. at

242. The very next term, in Tate v. Short, the Court

extended Williams, holding that Texas violated the

Equal Protection Clause when it imprisoned a

defendant convicted under a fine-only statute solely

10

because the defendant was indigent and unable to

immediately pay the fine in full. 401 U.S. 395, 39899 (1971).

Again implementing the principle of equal justice,

this Court has held that the State impermissibly

discriminates on the basis of financial status when it

automatically revokes an individual's probation for

failure to pay a fine, without first inquiring into why.

Bearden v. Georgia, 461 U.S. 660, 672-73 (1983). “To

do [so] would deprive the probationer of his conditional freedom simply because, through no fault of

his own, he cannot pay the fine. Such a deprivation

would be contrary to the fundamental fairness

required by the Fourteenth Amendment.” Id.

Thus, no one today would contend that a State or

the Federal Government could, consistent with the

Constitution, systematically impose greater punishments on the poor than on the rich. Such an intentional disparity would make a mockery of the

Constitution’s promise of equal protection of the

laws. In the imposition of punishments, the state

can no more discriminate on account of poverty than

on account of religion, race, or creed.

This Court’s longstanding and broad-based

holdings ensuring effective representation to

indigent defendants, providing them access to the

courts, and rejecting differential punishments,

support the determination that the right to equal

justice without regard to economic status is

fundamental.

II. A Key Function of the Excessive Fines Clause Is

to Ensure Equity in the Imposition of Fines

For nearly 1000 years, the English constitution,

and for its shorter lifespan, the American Constitution, have recognized the nexus between

11

excessive fines and equal justice. From its historical

origins, to its embodiment in modern jurisprudence,

the protections of the Excessive Fines Clause and its

antecedents have turned not only on proportionality

of the fine to the offense, but also on its compatibility

with the defendant’s ability to pay.

By the twelfth century, there existed a preMagna Carta English writ known as de moderata

misericordia under which unjustly large fines could

be reduced. Glanvill’s treatise (dating to around

1188) states that “[fines] by the lord king … means

that he is to be [fined] by the oath of lawful men of

the neighborhood, but so as not to lose any property

necessary to maintain his position.” Glanvill, The

Treatise on the Laws and Customs of the Realm of

England 114 (G.D.G. Hall ed., 1965).

The Magna Carta (1215) provides: “For a trivial

offence, a free man shall be fined only in proportion

to the degree of his offence, and for a serious offence

correspondingly, but not so heavily as to deprive him

of his livelihood.” Frederic Maitland wrote that

“[v]ery likely there was no clause in Magna Carta

more grateful to the mass of the people than that

about [excessive fines].” F.W. Maitland, Pleas of the

Crown for the County of Gloucester xxxiv (1884).

Provisions regarding the calculation of fines,

mirroring Magna Carta’s were also included in the

First Statute of Westminster, 3 Edw. I, ch. 6 (1275),

which required “that no City, Borough, nor Town,

nor any Man be [fined], without reasonable Cause,

and according to the Quantity of his Trespass; that is

to say, [according to his ability to pay].”

The Eighth Amendment has its roots in these

English sources. It was taken verbatim from a

provision of the English Bill of Rights of 1689, which

12

itself grew out of the language of the Magna Carta.

Scholars have therefore recognized the historical link

between the Excessive Fines Clause and equal

justice. See, e.g., Nicholas M. Mclean, Livelihood,

Ability to Pay, and the Original Meaning of the

Excessive Fines Clause, 40 Hastings Const. L.Q. 833,

839-41 (2013). This Court likewise has recognized

that link. See United States v. Bajakajian, 524 U.S.

321, 335 (1998) (noting that, at the Founding,

English

constitutional

law

required

that

“amercements (the medieval predecessors of fines)

should be proportioned to the offense and that they

should not deprive a wrongdoer of his livelihood”).

The U.S. Court of Appeals for the First Circuit

has viewed the Eighth Amendment in the same light,

holding that an individual’s ability to pay directly

bears on a fine’s “excessiveness.” See United States

v. Jose, 499 F.3d 105, 113 (1st Cir. 2007). In United

States v. Levesque, the court found that a forfeiture—

for current purposes the equivalent of a fine—could

be so onerous as to deprive a defendant of his or her

future ability to earn a living, thus implicating the

historical concerns underlying the Excessive Fines

Clause.” 546 F.3d 78, 83-85 (1st Cir. 2008). Along

similar lines, the Second Circuit has held that “when

analyzing a forfeiture’s proportionality under the

Excessive Fines Clause, courts may consider—in

addition to the four factors we have previously

derived from Bajakajian—whether the forfeiture

would deprive the defendant of his livelihood, i.e., his

‘future ability to earn a living.’” United States v.

Viloski, 814 F.3d 104, 111 (2nd Cir. 2016) (quoting

Levesque, 546 F.3d at 85).

These sources establish that the Excessive Fines

Clause requires courts, in imposing fines, to take

into account the defendant’s ability to pay.

13

III. Empirical Evidence Confirms that Excessive

Fines Undermine Equal Justice

In general, even when not excessive, fines

imposed in judicial proceedings have disparate

effects on the poor and communities of color. The

greater the fines, the more acute and widespread the

disparate impacts. Low income defendants are more

likely to be unable to pay fines than are higher

income defendants. And unpaid fines can result in

incarceration,

suspension

of

driver’s

and

occupational licenses, and loss of employment,

further impeding the ability to pay and prolonging

the penalty imposed for the original offense. As the

evidence shows, such financial penalties can render

justice unequal.

A. Excessive Fines Disproportionately Burden

the Poor

1. The ABA Has Recognized that Fines, Unless

Calibrated to Ability to Pay, Unfairly Burden

Defendants of Lesser Means

Concerned with the burgeoning evidence that

fines not linked to ability to pay are denying equal

justice to defendants who are poor, the ABA in

August 2018 adopted Ten Guidelines on Court Fines

and Fees. The report accompanying the Guidelines

laid out some of that evidence. The report noted, for

example, that an estimated 10 million Americans

owe more than $50 billion in debts imposed by the

criminal justice system. See ABA Guidelines, Report

at 2, http://bit.ly/2NhGzDy. Further, the ABA cited

studies showing that nearly two-thirds of current

prisoners were assessed court fines and fees, and

have little prospect of paying them when they leave

prison, as 60 percent remain unemployed a year

after release. Id.

14

The commentary to the guidelines debunks the

popular misconception that the United States long

ago abolished “debtors’ prisons.” ABA Guidelines,

Comm. at 3-4. Many current prisoners are incarcerated because they could not pay court fees and

fines. Such incarceration has been documented in at

least thirteen States since 2010. Id. at 4. In several

States, the municipal courts that typically administer fine-and-jail systems simply do not make the

indigence inquiry necessary to safeguard the

constitutional protection Bearden provides against

incarceration-for-nonpayment. Note, State Bans on

Debtors’ Prisons and Criminal Justice Debt, 129

Harv. L. Rev. 1024, 1027-31 (2016). Thus, in some

States, courts still revoke or withhold probation

based on failure to pay. ABA Guidelines, Comm. at

9. Others force defendants to choose between incarceration and paying the fine. Id. at 4-5. And still

others allow individuals to be arrested and held

while they await an ability-to-pay hearing. Id. at 5.

The remedies the Guidelines recommend testify

to the inequities that the empirical data demonstrate. Thus, the Guidelines urge, among other

things, that fines be calibrated to the financial

circumstances of the person ordered to pay; that

inability to pay (as opposed to willful nonpayment)

never result in incarceration, deprivation of

fundamental rights, or other disproportionate

sanctions; that courts hold mandatory ability-to-pay

hearings before imposing a fine; that courts consider

alternative sanctions for those unable to pay fines;

and that defendants have a right to counsel if

incarceration could result from nonpayment of a fine.

See ABA Guidelines, Comm.

Thus, Guideline 2 advises that “[f]ines used as a

form of punishment for criminal offenses or civil

15

infractions should not result in substantial and

undue hardship to individuals or their families. …

[A] full waiver of fines should be readily accessible to

people for whom payment would cause a substantial

hardship.” Id. at 3. Guideline 3 provides that “[a]

person’s inability to pay a fine, fee or restitution

should never result in incarceration or other

disproportionate sanctions.” Id. at 3. Along the

same lines, Guideline 4 states that before sanctioning an individual for nonpayment, “the court

must first hold an ‘ability-to-pay’ hearing, find willful

failure to pay a fine or fee the individual can afford,

and consider alternatives to incarceration.” Id. at 7.

ABA recommendations require broad-based

consensus from a cross-section of the legal

profession. That the ABA adopted these Guidelines

signals the dimensions of the problem. And the

Guidelines themselves illuminate the inherent inequalities in use of fines as criminal punishmentsdisparities that cement the link between

equal justice and excessive fines.

2. Scholars Have Also Extensively Documented

the Disproportionate Burden that Excessive

Fines Impose on the Poor

Scholars have also noted the disproportionate

impact of excessive fines on the poor. For example,

through studies and first-person observations, Alexes

Harris and co-authors have documented the disproportionate effect of excessive fines on those of

lesser economic means. See Alexes Harris, A Pound

of Flesh: Monetary Sanctions as Punishment for the

Poor 151-56 (2016); Alexes Harris et al., Drawing

Blood from Stones: Legal Debt and Social Inequality

in the Contemporary United States, 115 Am. J.

Sociology 1753, 1778, 1785-86 (2010) (noting that

16

80% of those interviewed found their criminal debt

obligations to be “unduly burdensome”).

Beth A. Colgan has similarly provided qualitative

accounts of the impacts of excessive fines on poor

individuals, see Beth A. Colgan, The Excessive Fines

Clause: Challenging the Modern Debtors’ Prison, 65

UCLA L. Rev. 2, 8-9 (2018), and has noted that

“municipalities appeared to be targeting low-income

and black communities with … [fine, fee, and

imprisonment] practices,” Beth A. Colgan, Lessons

from Ferguson on Individual Defense Representation

as a Tool of Systemic Reform, 58 Wm. & Mary L.

Rev. 1171, 1174-75 (2017). She has also explained

how excessive fines and fees entrench poverty. See

Beth A. Colgan, Fines, Fees, and Forfeitures, in

4 Reforming Criminal Justice: Punishment, Incarceration, and Release 205, 212-16 (Erik Luna ed.

2017), http://bit.ly/2od5ERW.

A 2007 report commissioned by the Council of

State Governments Justice Center and funded by the

federal Bureau of Justice Assistance similarly

corroborated the extraordinary impact of excessive

fines on the economically vulnerable. The report

found that “[m]any people released from prisons and

jails have a substantial amount of debt to repay,

including supervision fees, court costs, victim

restitution, and child support,” but that “[p]eople

released from prisons and jails typically have

insufficient resources to pay their debts.” Rachel L.

McLean & Michael D. Thompson, Repaying Debts 7-8

(2007), http://bit.ly/2wi2lNB. That is because, “[n]ationally, two-thirds of people detained in jails report

annual incomes under $12,000,” and “[m]ost people

returning to the community have difficulty finding

employment upon release from incarceration, and

they often rely on their families for support.” Id.

17

Thus, “[v]ictims, families, and criminal justice

agencies often compete for a share of the small

payments people released from prisons and jails are

able to make.” Id.

A 2015 report by the White House Council of

Economic Advisors reached many of the same

conclusions. See Council of Economic Advisers Issue

Brief, Fines, Fees, and Bail: Payments in the

Criminal Justice System that Disproportionately

Impact the Poor 3-4 (Dec. 2015), http://bit.ly/2oexSff.

The report noted that fines and fees “serve as a

regressive form of punishment as the same level of

debt presents an increasingly larger burden as one

moves lower on the income scale.” Id. The report

observed further that “[f]ines and fees create large

financial and human costs, all of which are

disproportionately borne by the poor.” Id.

B. Excessive Fines Disproportionately Burden

Communities and Persons of Color

1. The ABA Has Recognized the Disparate Impact

Excessive Fines Have on Minority

Communities

One of the foundations for the ABA’s Guidelines

was the determination that fines and fees fixed

without regard to whether a person reasonably can

pay

them

“are

regressive

and

have

a

disproportionate, adverse impact on low-income

people and people of color.” ABA Guidelines, Comm.,

at 5 & n. 18. The disproportionate racial and ethnic

impact arises because of, among other things, the

continuing disparity in income and wealth based on

race and ethnicity, higher rates of poverty and

unemployment among minorities, and persistent

racial discrimination. Statistics show, for example, a

disproportionate

number of

driver’s license

18

suspensions in communities of color for nonpayment

of fines. See id. Often, individuals need to drive in

order to work. The disparate number of license

suspensions contributes to higher unemployment

among minorities, and to a higher incidence of

convictions for driving with a suspended license,

which carries even greater penalties.

These

disparities have resulted in waning trust in the

justice system, particularly in communities of color,

and hostile or even explosive relationships between

lower income, minority communities and the police.

2. Other Sources Have Also Documented Racial

and Ethnic Disparity in the Imposition and

Enforcement of Fines

Other groups have also demonstrated the

disproportionate racial impact of fines and fees on

minority communities.

A report by “Back on the Road California,” a

coalition of California civil-rights organizations,

found, through analysis of public records from the

California Department of Motor Vehicles and U.S.

Census data, that, in California, “there are dramatic

racial and socioeconomic disparities in driver’s

license suspensions and arrests related to unpaid

traffic fines and fees.” Back on the Road California,

Stopped, Fined, Arrested: Racial Bias in Policing and

Traffic Courts in California 1, 22-24 (2016),

http://bit.ly/2PISx7M. As the report documented,

“data collected from 15 police and sheriff’s

departments across California show that Black

motorists are far more likely to be arrested for

driving with a suspended license for failure to pay an

infraction citation than White motorists.” Id. at 1.

The Brennan Center for Justice, a non-partisan

public policy and law institute that focuses on

19

fundamental issues of democracy and justice, found

that “African-Americans face a particularly severe

burden” from the imposition of fines and fees.

Brennan Center for Justice, Criminal Justice Debt: A

Barrier to Reentry 4 (2010), http://bit.ly/2MS7TIm.

In particular, because in at least seven States,

individuals must pay off criminal justice debt before

they can regain their eligibility to vote after a

conviction, criminal justice debt disproportionately

disenfranchises African-Americans. See id. at 29.

The ACLU of Pennsylvania, after a months-long

investigation, found pronounced racial disparities in

civil forfeiture practices in Philadelphia. According

to the study, “[a]n estimated 7 out of 10 people whose

cash is taken by Philadelphia law enforcement

agencies even though they have not been convicted of

a crime are African-American.” ACLU of Pennsylvania, Guilty Property 10 (2015), http://bit.ly/

2PFet3s (emphasis in original).

The Center for American Progress, a non-profit

organization in Washington, D.C., found that “people

of color are disproportionately impacted by civil asset

forfeiture.” Center for American Progress, Forfeiting

the American Dream 5 (2016), http://bit.ly/2PJDzhR.

The Center reported that people of color appear to

bear the brunt of civil asset forfeiture in States and

cities across the United States. See id.

3. The Department of Justice Has Similarly

Identified Excessive Fines as a Significant

Burden for Communities of Color

The Department of Justice investigation in

Ferguson, Missouri, also identified significant racial

disparities in the imposition of fines and fees.

Originally intended as an investigation into a police

shooting of an African-American teenager, the DOJ

20

investigation produced a 105-page report on the

City’s allegedly exploitative, excessive system of

fines. See United States Department of Justice Civil

Rights Division, Investigation of the Ferguson Police

Department, 2, 3, 9, 10, 13 (Mar. 4, 2015),

http://bit.ly/2ofK7bu; see also United States

Department of Justice Civil Rights Division, Dear

Colleague Letter, 2 (Mar. 14, 2016), http://bit.ly/

2O4LlkV (reminding state and local law enforcement

agencies, in the wake of the Ferguson report, that

practices related to the imposition of fines may

“violate Title VI of the Civil Rights Act of 1964, 42

U.S.C. § 2000d, when they unnecessarily impose

disparate harm on the basis of race or national

origin”).

4. Excessive Fines Have a Sordid History as

Tools of Racial Oppression

Excessive fines were used as tools in the postReconstruction and Jim Crow South to subordinate

African-Americans. As one letter writer stated succinctly in a 1942 letter to the NAACP,

the general practice of white land lords down

here is to go into the county courts that meet

in the spring of the year and ‘bail out’ all

available Negroes ‘convicted’ of petty crimes,

pay their fines, and have them placed into

their custody and work them as long as they

choose.

Letter from Thomas Monroe Campbell, Tuskegee

Institute, Alabama, to George C. Schuyler, NAACP

(Mar. 3, 1942). George McCutcheon McBride wrote

in the entry on “Peonage” in the 1934 Encyclopedia

of the Social Sciences, that

[a]s a penalty for vagrancy or petty crimes,

especially when committed by Negroes, it

21

became customary in many districts to impose

a fine and to accept payment of this fine from

some employer of labor, who in return secured

the services of the culprit until the amount of

the fine had been worked out. It was not

difficult to bring about the accumulation of

other debts by excessive charges for tools, food,

lodgings and clothing advanced to the victim.

Thus a system of long continued, if not

permanent, involuntary servitude developed.

Yosal Rogat, Mr. Justice Holmes: A Dissenting

Opinion, 15 Stan. L. Rev. 254, 269-70 (1963) (quoting

George McCutcheon McBride, Peonage, in 12

Encyclopedia of the Social Sciences 69, 71 (1934)).

Those Jim Crow practices had roots in the period

immediately following Reconstruction, where “minor

breaches of sometimes vague laws made the [fine

and fee] system a device for controlling blacks, whose

omnipresence as free persons was found offensive by

many whites.” Aremona G. Bennett, Phantom

Freedom: Official Acceptance of Violence to Personal

Security and Subversion of Proprietary Rights and

Ambitions Following Emancipation, 1865-1910, 70

Chi.-Kent L. Rev. 439, 468 (1994). Scholars of the

post-Reconstruction South have documented how

excessive fines, among other excessive punishments,

were enacted in that period for the purpose of racial

oppression.

See Douglas Blackmon, Slavery by

Another Name 53-57, 63-69 (2008); Eric Foner,

Reconstruction: America’s Unfinished Revolution,

1863-1877, at 198-205 (1988).

22

IV. The Excessive Fines Clause Protects the

Fundamental Right to Equal Justice

This

Court

has

engaged

in

“selective

incorporation” of the Bill of Rights into the Due

Process Clause of the Fourteenth Amendment. The

standard for incorporation is whether the right is

“implicit in the concept of ordered liberty,” and “so

rooted in the traditions and conscience of our people

as to be ranked as fundamental.” McDonald v. City

of Chicago, 561 U.S. 742, 760 (2010); see Washington

v. Glucksberg, 521 U.S. 702, 721 (1997); Duncan v.

Louisiana, 391 U.S. 145, 148-49 (1968); Palko v.

Connecticut, 302 U.S. 319, 325 (1937). The Excessive

Fines Clause plays an essential role in protecting

equal justice.

This Court has recognized that protecting equal

justice without regard to economic status is a key

function of the Fourteenth Amendment. As shown in

Part I, supra, in case after case this Court has

recognized fundamental rights—such as access to

courts and counsel, and protection from differential

punishments on the basis of economic status—that

are themselves merely instrumental to the

preservation of equal justice. Those cases recognize

that equal justice, without regard to economic status,

is an indispensable component of ordered liberty.

See Bearden, 461 U.S. at 666-69; Gideon, 372 U.S. at

343-45.

The Excessive Fines Clause is an essential

safeguard of equal justice. As shown in Part II,

supra, for nearly a millennium an important aim of

the Excessive Fines Clause has been to ensure equal

justice by requiring that a fine be proportional to the

offense and that it not exceed a defendant’s ability to

pay. Moreover, as shown in Part III, supra, there is

23

an overwhelming practical link between excessive

fines and equal justice. Empirical evidence shows

that fines not calibrated to ability to pay have had a

disparate impact on both the poor and communities

of color, in derogation of equal justice.

Finally, the well-documented pervasive, nationwide racially disparate impact of excessive fines is

further proof of its necessity in ensuring equal

justice. “The central purpose of the Equal Protection

Clause of the Fourteenth Amendment is the

prevention of official conduct discriminating on the

basis of race.” Washington v. Davis, 426 U.S. 229,

239 (1976). “Its aim was against discrimination

because of race or color. As we have said more than

once, its design was to protect an emancipated race,

and to strike down all possible legal discriminations

against those who belong to it.” Strauder v. West

Virginia, 100 U.S. 303, 310 (1879). To be sure, this

Court has generally focused its constitutional inquiry

on whether a law has a racially discriminatory

purpose. See Washington v. Davis, 426 U.S. at 239.

But here, where the question is not whether to

invalidate a law but whether to incorporate a

constitutional right into the Due Process Clause, the

calculus is different. Whether or not the disparate

racial impact of excessive fines would be

unconstitutional otherwise, the disparity adds

another level—one of unique historical, legal, and

sociological import—to the impairment of equal

justice due to excessive fines. This evidence is

another important building block in establishing the

centrality of the Excessive Fines Clause in the

concept of ordered liberty.

24

CONCLUSION

Amicus curiae the American Bar Association respectfully urges that the Court reverse the decision

below.

Respectfully submitted,

ROBERT N. WEINER

ANDREW T. TUTT

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Mass. Ave., NW

Washington, DC 20001

(202) 942-5855

robert.weiner@

arnoldporter.com

ROBERT M. CARLSON

Counsel of Record

AMERICAN BAR ASSOCIATION

321 N. Clark Street

Chicago, Illinois 60654

(312) 988-5000

abapresident@

americanbar.org

Counsel for Amicus Curiae the American Bar Association

SEPTEMBER 11, 2011