When residents of Ferguson, Missouri, took to the streets last August to protest the death of Michael Brown, an unarmed black teenager killed by a white police officer, the events dramatically exposed an image of modern policing that most Americans rarely see: columns of police pointing military weaponry at peaceful protestors.1 But the ongoing tension between residents and police in Ferguson was also indicative of another, less visual development in how the police are used to oppress impoverished communities: using law enforcement to extract revenue from the poor.
In the late 1980s, Missouri became one of the first states to let private companies purchase the probation systems of local governments.2 In these arrangements, municipalities impose debt on individuals through criminal proceedings and then sell this debt to private businesses, which pad the debt with fees and interest. This debt can stem from fines for offenses as minor as rolling through a stop sign or failing to enroll in the right trash collection service.3 In Ferguson, residents who fall behind on fines and don’t appear in court after a warrant is issued for their arrest (or arrive in court after the courtroom doors close, which often happens just five minutes after the session is set to start for the day) are charged an additional $120 to $130 fine, along with a $50 fee for a new arrest warrant and 56 cents for each mile that police drive to serve it.4 Once arrested, everyone who can’t pay their fines or post bail (which is usually set to equal the amount of their total debt) is imprisoned until the next court session (which happens three days a month).5 Anyone who is imprisoned is charged $30 to $60 a night by the jail.6 If an arrestee owes fines in more than one of St. Louis County’s eighty-one municipal courts, they are passed from one jail to another to await hearings in each town.
The number of these arrests in Ferguson is staggering: in 2013, Ferguson’s population was around 21,0007 and its municipal court issued 32,975 arrest warrants for nonviolent offenses.8 Ferguson has a per capita income of $20,472, and nearly a quarter of residents and over a third of children live below the poverty line.9 Court fines and fees are Ferguson’s second-largest source of income, generating over $2.4 million in revenue in 2013.10 Though many of the towns that surround St. Louis draw significant revenue through their courts,11 Ferguson is an outlier: in 2013, its municipal court issued over twice as many arrest warrants per capita as any other town in Missouri.12
Widespread hostility toward Ferguson’s municipal court is the tinder that helped set the town on fire after Michael Brown was killed. Professor Jelani Cobb visited the town just after the shooting and saw this hostility as one of the “intertwined economic and law-enforcement issues underlying the protests.”13 “We have people who have warrants because of traffic tickets and are effectively imprisoned in their homes,” a resident told Cobb. “They can’t go outside because they’ll be arrested. In some cases people actually have jobs but decide the threat of arrest makes it not worth trying to commute outside their neighborhood.”14 Though state legislators are considering various reforms of municipal court practices in response to the protests,15 Ferguson’s budget for 2015 increases the town’s reliance on police-issued tickets.16
Two months after the protests began they flared again as a result of another form of profit-based policing when an off-duty police officer killed another black teenager, this time in the nearby town of Shaw.17 This officer was being paid by a private company to patrol the area. Though he was not on duty, the company required him to wear his official uniform.18 Shaw is among many St. Louis neighborhoods that “pay private companies for the services of public employees to patrol public places.”19 These businesses capitalize on the fact that wealthier neighborhoods like Shaw want (and can afford) more police. In turn, towns can cut official funding to police while ensuring a separate source of income for officers.
These trends of allocating police according to profit and criminalizing poverty to raise revenue extend well beyond St. Louis. Section A of this Chapter examines three examples of how governments raise revenue through policing. Section B identifies how this trend perverts the role of police. Section C examines when these developments might be unlawful.
A.
In April 2012, Tom Barrett was arrested for stealing a can of beer from a convenience store in Augusta, Georgia.20 When Barrett appeared in court, he was offered the services of a court-appointed attorney for a $80 fee.21 Barrett refused to pay and pled “no contest” to a shoplifting charge. The court sentenced Barrett to a $200 fine plus a year of probation.22 Barrett’s probation terms required him to wear an alcohol-monitoring bracelet. Even though Barrett’s sentence did not require him to stop drinking alcohol (and the bracelet would thus detect all the alcohol Barrett chose to drink with no consequences), he was ordered to either rent this bracelet or go to jail.23 The bracelet cost Barrett a $50 startup fee, a $39 monthly service fee, and a $12 daily usage fee. Though Barrett’s $200 fine went to the city, these other fees (totaling over $400 a month) all went to Sentinel Offender Services, a private company.
Unable to pay Sentinel’s fees, Barrett spent more than a month in jail before he convinced a friend to lend him the $80 startup fee.24 But Barrett, whose only source of income at the time was selling his blood plasma, struggled to keep up with Sentinel’s fees. “You can donate plasma twice a week as long as you’re physically able to . . . . I’d donate as much plasma as I could and I took that money and I threw it on the leg monitor.”25 As Barrett began skipping meals to pay Sentinel, his protein levels dropped so much that he was ineligible to donate plasma. After Barrett’s debt grew to over $1,000, Sentinel obtained a warrant for his arrest.26 Barrett was arrested and told by a judge that he could stay out of jail if he paid Sentinel several hundred dollars.27 Barrett was still unable to pay: “I’m thinking, ‘But the whole problem is, I don’t have money.’ So they locked me up. And I just said, ‘Golly.’”28
Barrett’s story cuts across several aspects of how local governments use policing, how private companies profit from policing, and how poor people experience policing. This section describes three examples of this development: (1) “usage” fees imposed by criminal courts, (2) private probation supervision, and (3) civil forfeiture.
1. Usage Fees. — The first example of how governments use policing to raise revenue is through fees imposed on arrestees and defendants for their arrest, adjudication, and incarceration. For example, local governments charge defendants for police investigation,29 prosecution costs,30 a public defender,31 a trial (sometimes with different fees depending on how many jurors a defendant requests),32 and incarceration.33
Some cities charge all arrestees a fee, thereby raising revenue “based on only the say-so and perhaps even the whim of one arresting officer, regardless of whether the arrestee was ever prosecuted or convicted, and regardless of whether the arrest was lawful in the first place.”34 In some of these schemes, fees are a way for prosecutors to avoid any inquiry into guilt. For example, arrestees in Washington, D.C., can pay police to end a case on the spot rather than exercise their right to adjudicate the charge.35 Prosecutors can get in on the action too by promising to suspend prosecution in exchange for a fee.36 For example, Oklahoma prosecutors can offer to stall a case for a fee of $40 per month for up to three years, with proceeds funding the prosecutor’s office.37 State law initially limited fees to $20 a month; after this limit was raised to $40 in 2009, the number of suspects on supervision rose from 16,000 in 2008 to 38,000 in 2010.38 Unlike plea bargains, these agreements require no finding or admission of guilt.
Because these fees are not governed by the substantial legal constraints that states impose on locally raised taxes,39 they have emerged as an easy source of revenue for cash-strapped municipalities.40 In 1991, around a quarter of inmates said they owed court-imposed fines, restitution, or fees.41 By 2004, the last time the Department of Justice ran this survey,42 that number was sixty-six percent.43 The exceptional sovereign authority to proscribe and punish crime makes law enforcement a uniquely lucrative monopoly.
These fees serve to criminalize poverty and severely amplify the burden that criminal punishment imposes on poor communities. In many jurisdictions, debt from criminal courts carries interest and late fees,44 thereby multiplying the financial burden solely on those debtors who are least able to pay. When probation or parole terms require payment of these fees, inability to do so can foreclose housing,45 welfare assistance,46 and employment options.47 When coupled with these debilitating collateral consequences, these debts impose an enduring burden that can exceed the penalty imposed for a crime.
2. For-Profit Probation Supervision. — Some jurisdictions go further than simply charging for “use” of the criminal legal system and directly sell components of law enforcement to private businesses. While private prisons have received broad scrutiny,48 privatization of probation supervision places discretionary law enforcement authority directly in the hands of private businesses. In these arrangements, a business buys exclusive use of a local government’s probation system in exchange for assuming its full cost.49 These companies charge cities nothing and depend entirely on the fees they charge probationers.50 The entire business model is to pad state punishment with additional fees for whoever can’t pay a fine immediately. These fees can amount to double or triple the fine directly imposed by the court.51
The traditional purpose of probation is to provide an opportunity for criminal offenders to earn relief from incarceration if they can meet regularly with a probation officer and satisfy various judge-ordered benchmarks for good behavior.52 In this arrangement, probation offi-cers are usually court employees, so their conduct is both protected and governed by the principles that apply to other judicial officers.53 But a business whose only work is to extract fees from probationers is simply a debt collector backed by carceral power.54 Unlike when probation officers work for a court, local governments have little control over how fee schemes are structured or which probationers are hounded. Yet these companies threaten probationers with incarceration or arrest, often via coercion from state officials.55 Then, when a company decides a probationer is not complying with probation terms (or is no longer worth the cost of supervising from among all the probationers who are also not complying), the company can obtain an arrest warrant and summon the probationer to court. If a probationer fails to appear (often because the probation company has been threatening jail time based on the failure to pay fines), she can be jailed for contempt. If the probationer does show up, the decision to revoke probation is directly informed by the recommendation and representations of the probation company, with the probationer rarely represented by counsel.56
3. Civil Forfeiture. — Another way municipalities extract revenue through policing is civil forfeiture, a mechanism by which police confiscate assets that they claim are linked to crime. These seizures can happen even when the property owner is never arrested (or is acquitted of the underlying crime), so long as the police assert that the seized property was probably used in a crime.57 If property owners do not come to court to contest a seizure within a certain time, police sell the property and keep the proceeds.58 Police often preempt this process by offering not to charge the underlying crime or initiate civil sanctions (such as taking away the property owner’s children) if the property owner promises not to contest the seizure.59
Civil forfeiture lets governments aggrandize their criminal authority without actually operating through criminal law. For example, police seize family homes based on allegations that a resident sold drugs or stop motorists whom they suspect might be transporting cash (even for completely benign purposes) and then seize assets based on suspicion that criminals often use these kinds of assets.60 The legality of these seizures generally turns on the conceit that a forfeiture action is against property, not a person. This conceit has operated for centuries without any requirement that the government prove any underlying crime.61 While civil forfeiture may seem unfair, it has been justified on the grounds that it “fosters the purposes served by the underlying criminal statutes, both by preventing further illicit use of the conveyance and by imposing an economic penalty, thereby rendering illegal behavior unprofitable.”62
Beginning with the war on drugs, civil forfeiture has become more a way to fund supposed crime-fighting than a way to actually fight crime. Before the modern federal forfeiture statute was enacted in 1970, “forfeiture outside the maritime context had been largely dormant.”63 This statute was later expanded to allow the Department of Justice to pocket proceeds from forfeitures and to allow state police to initiate seizures and keep up to 80% of the proceeds.64 Federal agencies ranging from the Postal Service to the Department of the Treasury are now authorized to fund themselves through forfeitures.65 In thirty-nine states, police departments are also allowed to keep forfeiture proceeds for their own use.66 Since 2001, local police have seized over $2.5 billion through the federal statute, 81% of which came from people who were not charged with a crime.67 Police used this revenue to pay for everything from informants and weaponry to publicity efforts (such as clowns for parties and trading cards with pictures of officers) and luxury vehicles.68
Civil forfeiture is even used for noncriminal conduct. For example, the IRS has a practice of seizing bank accounts to which businesses have made individual deposits smaller than $10,000 based on a suspicion that these deposits are meant to avoid income-reporting requirements.69 States even use civil forfeiture to enforce licensing requirements, such as when “forty Detroit police officers dressed in commando gear”70 raided an event at the Contemporary Art Institute of Detroit based on a warrant charging that the gallery had sold beer without a license.71 Though this warrant “did not authorize any arrests or searches of patrons,” police detained 130 patrons and seized the cars of 44.72 After some of the patrons sued, the city insisted it could seize any vehicle used to drive someone “to the location of an unlawful sale of alcohol.”73 For struggling cities like Detroit, these schemes promise an easy source of revenue.74
B.
The three examples listed in section A by no means cover the full range of how profit motives are changing policing. Instead, they each illustrate the idea that policing can be a source of revenue rather than a broadly socialized public good.75 In turn, decisions about which laws to enforce and how people should be punished are driven by profit. Instead of distributing the cost of policing throughout society, police are allowed to single out who will shoulder this burden. Section B of this Chapter examines how this transformation threatens to pervert the role of policing.
Using law enforcement to raise revenue is part of a larger trend of thinking about government through the logic of business.76 In the criminal context, critiques of privatization has primarily focused on how these developments transfer state authority to private actors.77 But the examples in section A share another important feature, regardless of whether a private actor is involved: a financial motive structured right into the immense discretion (on the part of police, prosecutors, or judicial officers) that runs law enforcement.78 These actors then use their considerable discretion to shape not only the substance of criminal law but also its funding structure, in the way a legislature normally would.79 Budget authorities have even started to cut police funding in response to these departments’ raising their own revenue, in turn spurring police to raise even more money in these ways.80
Coupling discretionary police power with an ability to raise revenue amplifies the pathologies that are perverting modern criminal justice. By enacting both more and broader criminal laws, legislatures have delegated immense power to police and prosecutors to choose which crimes to investigate, prosecute, and punish.81 When this discretion encompasses an ability to extract revenue, even more legislative power is delegated since these agencies can both avoid and override normal budgeting politics.82 This lack of political accountability is compounded by the fact that offender-funded policing solely burdens a uniquely marginalized political minority. Indeed, attempts to raise revenue through policing have been described as a regressive tax, turning the poorest segments of the population into an easy source of revenue, raised based on the discretionary whim of executive actors.83
Profit motives also distort the discretion of police, prosecutors, courts, and local officials in more concrete ways. When courts are used to raise money, officials have less incentive to make adjudications fair: recall Ferguson, where residents who cannot afford traffic fines must appear in a court session that is open only to whoever arrives in the first five minutes, with arrest warrants (and more fees) for anyone who shows up later. Likewise, in private probation, a private company decides who comes to court for alleged probation violations. A company employee is then the chief witness to alleged violations and also tells the court whether to jail the probationer. This entire process is informed by the company’s financial stakes. For example, if a probationer is so destitute that she could never pay a fee, it is much cheaper for the company to demand her incarceration than to continue to supervise probation. On the other hand, a company has little financial incentive to report someone who pays fees but violates more substantive conditions. Civil forfeiture changes police behavior too: the allure of cash diverts police attention from nonfinancial crimes toward more lucrative drug cases. Within drug cases, police prefer to raid drug buyers instead of sellers because the former are more likely to have cash.84 Some police departments even select raid targets based on “wish lists” of cars or consumer electronics they covet.85
To be sure, some of these attempts to monetize law enforcement began with benign intentions. For example, opportunities to conditionally avoid prosecution or incarceration could be thought of as offers of leniency. But not only does charging money for these options necessarily discriminate against the poor, allowing these programs to generate revenue also tends to corrupt whatever value they might otherwise provide.86 More broadly, the examples described can all involve offenses that need not carry direct prison time and thus do not trigger costly procedural protections such as the right to counsel.87 In comparison to expensive mass incarceration, this approach allows governments to target and sort certain populations through measures that are not just cheaper than normal criminal adjudication but can also raise money. Through these schemes, policing is not aimed at identifying culpability and gathering evidence but at aggressively managing poor communities through contact with the police.88 But rather than reducing the burden of policing, these changes threaten to fuel expansion of law enforcement.89
Thinking about government as a business is as old as America itself: during the initial era of federal law enforcement, policing was very much organized according to business principles and profit motives.90 Even local policing originally emerged as a wholly private enterprise: through the first half of the nineteenth century, every aspect of law enforcement, from investigation through prosecution and imprisonment, was handled by private actors.91 Even once governments began to take over law enforcement, business principles like profit, risk, and entrepreneurialism continued to run the show.92 But as policing grew more pervasive over the past century, it also became one of the most paradigmatically public functions of government.93 During the same time, a legal framework emerged that imposed many constitutional limits on what police can do.94 These restrictions might forbid the use of policing to raise revenue.
C.
Government schemes that use policing to raise revenue could violate at least three provisions of the federal constitution: the Due Process Clause, which requires neutral administration of criminal law; the Equal Protection Clause, which bans discriminatory punishment; and the Eighth Amendment, which forbids excessive fines. By focusing on the substance of these restrictions, this Chapter takes a different (and perhaps more pedestrian) approach to financial motives in law enforcement than scholarship that focuses on how these developments delegate government authority to private actors.95 Instead, this Chapter examines how profit motives violate the requirements of neutrality, fairness, equality, and proportionality that constitutional criminal procedure — the law of policing — imposes on law enforcement.
1. The Due Process Clause. — The Due Process Clause bars criminal adjudication by individuals who have a financial stake in cases they decide.96 The Supreme Court has suggested that this requirement could extend to enforcement actors when the risk of bias is severe enough. In Marshall v. Jerrico, Inc.,97 the Court questioned the notion “that the Due Process Clause imposes no limits” on prosecutors: instead, the Court explained, a “scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision.”98 Marshall dealt with a statute that awarded a portion of proceeds from prosecution of child labor regulations to the offices that enforced these regulations.99 Despite its warnings about improper bias, the Court held that the bias alleged in the case was “exceptionally remote” since “[n]o government official [stood] to profit” and the awards in question were “substantially less than 1% of the [agency’s] budget.”100
Even though the Court found no risk of improper bias in Marshall, the modern examples of financial motives in law enforcement may reach the level of bias that the Court warned of. When a city relies on fees collected by its criminal courts or when police departments depend on the assets they seize to fund their operations, the threat of improper influence seems far less “remote” than in a scheme that generates “substantially less than 1%” of an agency’s budget. The Court in Marshall also emphasized that the statute allowed repayment only for the expenses of prosecution, rather than reimbursement of offices based on how much their prosecutions collected.101 In contrast, when a private probation company decides which violations to enforce based on financial motives, “a direct, personal, substantial, pecuniary interest”102 is the whole reason the arrangement exists.103 Marshall even suggests that the requirement of impartiality could govern decisions “not to enforce” a law when the influence is severe enough.104 This requirement could forbid schemes in which prosecutors promise not to prosecute the crime underlying a forfeiture.
The Due Process Clause might also forbid combining the executive function of prosecution with the legislative function of budget management. The Court has held that the right to a neutral adjudicator is more than a protection against personal financial incentive: it also bars adjudicative actors from generally managing a government’s finances because this combination of functions could make an adjudicator more likely to impose financial penalties that enrich the government.105 This rationale may have special force when executive agents use their discretionary enforcement authority to choose who will fund their activities.106 Since prosecutors are increasingly the most powerful discretionary actors in criminal adjudication,107 extending this requirement to them would root out improper influences from the point where they are most pernicious.108
The Due Process Clause might also require special scrutiny whenever a financial motive is personal. Compared to government action, the activity of a private business is more likely to be based on arbitrary considerations. In Young v. United States ex rel. Vuitton et Fils S.A.,109 the Supreme Court overturned a contempt conviction that was prosecuted by a private lawyer who also “represent[ed] the private beneficiary of the court order allegedly violated.”110 Though the Court quoted the due process reasoning from Marshall (that a “scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision”), the Court grounded its decision in its authority to supervise the federal judiciary.111 This reasoning about improper financial influence has even more force when a private individual threatens probationers with arrest and then tells the court to imprison them, all as part of a venture to extract revenue through this threat. These cases involve more than just a risk of financial influence: a financial bottom line is structured directly into the arrangement.
Another way the due process bar on financial interests in the outcome of criminal proceedings could apply to private probation is through the principle that probation agents perform a quasi-judicial function. The legal strictures surrounding probation presume that probation officers are unlike police and prosecutors in that they have a relationship of trust with the probationer whose conditional release the court is supervising.112 While the Supreme Court has not considered whether this relationship requires extending the bar on personal financial stakes to probation officers, circuit courts have established that both state and federal probation officers are “neutral information gatherer[s]”113 and “arm[s] of the court.”114 To the extent probation officers are judicial agents, they should be governed by the same requirements of neutrality as other such actors.
2. The Equal Protection Clause. — In Bearden v. Georgia,115 the Supreme Court held that the Equal Protection Clause, in combination with the Due Process Clause, forbids imprisoning people simply because they cannot afford to pay a fine.116 Bearden requires courts to determine whether a defendant is indigent before imposing jail time for failure to pay a fine. The Court did not distinguish the equal protection basis of the holding in much detail,117 but lower courts had previously decided the same issue by reasoning, for example, that imprisonment for failure to pay a fine “creates two disparately treated classes: those who can satisfy a fine immediately upon its levy, and those who can pay only over a period of time, if then.”118 But by the time Bearden reached the Supreme Court, the Court had already held in San Antonio Independent School District v. Rodriguez119 that the Equal Protection Clause permits uniform fees that by their nature impose a heavier burden on the poor.120 Though Rodriguez held that wealth is not a suspect classification under the Equal Protection Clause,121 Bearden established nearly a decade later that the clause combines with the Due Process Clause to bar certain forms of wealth-based discrimination.122 In another line of cases, the Court held that indigent defendants cannot be kept out of the judicial process through uniform fees.123 Like Bearden, these cases require courts to waive uniform fees for everyone who shows they cannot pay.
But Bearden, which governs when probation can be revoked, did not address the discrimination of schemes in which people who cannot pay fines are put on probation. These schemes impose two different sentences depending on wealth status: someone who can pay a traffic ticket when it is levied faces no other obligation, but everyone who cannot pay is put on probation, often with a range of other conditions and restrictions. These distinct sentences, based solely on wealth, are discriminatory long before incarceration, when Bearden requires an inquiry into whether the failure to pay was due to poverty. Even when the only distinction between two otherwise identical sentences is the fees imposed, this still discriminates by extracting fees solely from whoever has the most difficulty paying. Not only are these burdens not uniform, they multiply and increase only for those who cannot afford them. Though the equal protection reasoning that motivated Bearden seems to forbid this discrimination, Bearden simply requires assurance that a person who failed to pay a fine did not do so because she could not afford the fine, at the moment she would be incarcerated. But long before this point, a defendant who could not afford to pay a fine immediately will already have been asked to pay more money than whoever paid at once. Bearden does not require a hearing on whether the decision to pay incrementally was due to poverty rather than preference. The Equal Protection Clause should require governments to impose at most uniform financial burdens (as the Court allowed in Rodriguez) rather than discriminating based on poverty.
Though discriminatory burdens can be constitutional if they serve a sufficiently weighty government interest, schemes that multiply penalties only for the poor seem to lack a valid purpose. In Bearden, the Court reasoned that a state’s interests in deterring crime by imprisoning people who can’t pay fines can be served by alternative measures, such as reducing fines, extending deadlines, or allowing community service.124 Elsewhere, the Court has explained that the Equal Protection Clause restricts discrimination between criminals and other individuals for the purpose of debt collection: In James v. Strange,125 it unanimously held that a state could not deny indigent criminal debtors the same protections that are afforded to private debtors.126 The Court explained that this discrimination lacked rational basis because a state’s interests in collecting fines and fees “are not thwarted by requiring more even treatment of indigent criminal defendants with other classes of debtors.”127 Unlike civil debt, criminal-court debt is backed by the threat of arrest and incarceration either for violation of probation or for criminal contempt.128 This is a form of coercion that private creditors trying to collect normal private debt cannot use, but private probation companies trying to enforce criminal debt can — and do. This discrepancy between indigent defendants and other debtors “embodies elements of punitiveness and discrimination which violate the rights of citizens to equal treatment under the law.”129
Short of a broad prohibition on any scheme that multiplies financial penalties solely for the poor, courts could root out discrimination by requiring hearings into indigence at different points in the process.130 One possibility would be to require a finding that an individual’s decision to pay either incrementally or later (rather than immediately, at a smaller total cost) is not due to poverty. Another option would be to require a showing that an individual is not indigent before imposing any new penalty or fee (just as Bearden requires before incarceration).131 After all, if the failure to pay the initial fine was due to poverty, then the additional burden would be applied solely based on separating those who can pay from those who can’t. This rule would functionally ban payment plans in which a financial burden grows automatically, outside court supervision, such as through additional fees. Finally, another option might be to prohibit fees (or punishments for failing to pay fees) that extend a sentence beyond the extent authorized by the relevant substantive criminal law.132 This rule would forbid imprisonment for offenses that were not serious enough to warrant jail time in the first place.
3. The Excessive Fines Clause. — The Eighth Amendment forbids “excessive fines.”133 This ban may be uniquely suited to restricting the use of policing to raise revenue. Though the clause applies only to penalties that are deemed fines (unlike the Fourth Amendment and due process clauses, which govern any seizure or denial of property), the Supreme Court has held that the clause can apply to in rem civil forfeiture proceedings given “the historical understanding of forfeiture as punishment.”134 As for other fees and costs imposed through criminal proceedings, the historical record suggests that the clause was meant to encompass the entire burden imposed through punishment, which should include the collateral consequences of a conviction or of criminal-court debt.135 Especially as punishment other than incarceration becomes more pervasive (and particularly in light of the increasing constitutional significance of the collateral consequences of criminal proceedings136), the Supreme Court may have an opportunity to specify which of these penalties come under the ambit of the clause.
Even for financial obligations that are deemed fines for the purpose of the clause, the question remains whether they are also excessive. This word has only been interpreted once by the Supreme Court, when it held in United States v. Bajakajian137 that forcing a traveler to forfeit all the money that he had failed to report carrying out of the United States violated the Excessive Fines Clause. Rather than debating the historical meaning of the term “excessive” as in cases considering the definition of “fines,”138 the Court imported the proportionality test it uses for the Cruel and Unusual Punishments Clause.139 Indeed, the Court applied the stronger version of this test normally applied only in capital cases,140 perhaps since the word “excessive” implies proportionality more clearly than does “cruel and unusual.” To this day, Bajakajian is the only case in which the Court has held that a financial penalty violated the Excessive Fines Clause.141 Because the clause remains undertheorized, it may be due for doctrinal development.
The proportionality test in Bajakajian could have unique force when penalties are intended to raise money. Bajakajian provides “that a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.”142 This inquiry requires an examination of the substance of an offense to determine whether the punishment is calibrated to it. In Bajakajian, the Court held that the forfeiture in the case was excessive to the extent that it was calibrated to the amount of money an offender had failed to declare, rather than to the defendant’s culpability in failing to disclose this information.143 For comparison, fines that exist to support a private business lack a valid retributive function, especially when the financial burden is tied to delays in repayment rather than to the severity of the offense.144 Even absent privatization, courts might hold that the Excessive Fines Clause bars financial burdens that are calibrated to the amount of debt an individual owes (or how long they have owed this debt), rather than to culpability. The majority in Bajakajian noted that “the maximum fine” the defendant was subject to for his conduct was “but a fraction of the penalties authorized” through forfeiture.145 Fees and interest that significantly multiply the penalty imposed by a statute could similarly be unlawful, as could fees imposed by a private company on top of the penalty for the offense. Because these fees are not imposed based on culpability — they apply only to people who are too poor to pay — they are by definition excessive.
Applying the Excessive Fines Clause to government schemes that attempt to raise revenue through policing also channels original intent. Even though the bar on punishment for inability to pay fines arises from due process and equal protection principles,146 the historical record suggests that the Eighth Amendment was intended to forbid fines that are so onerous they lead to imprisonment: “One of the main purposes of the ban on excessive fines was to prevent the King from assessing unpayable fines to keep his enemies in debtor’s prison. . . . Concern with imprisonment may explain why the Excessive Fines Clause is coupled with, and follows right after, the Excessive Bail Clause.”147 Applying the Eighth Amendment to these cases would extend an underused constitutional right to a problem that strongly resembles its inspiration.
As for civil forfeiture, the Excessive Fines Clause could also restrict seizures that are either unrelated or disproportionate to culpability. For example, a comparison between the value of a forfeiture and the “harm” and “gravity” of an offense could forbid the seizure of cars used to drive to an art gallery that sells alcohol without a license.148 The Bajakajian Court also considered whether the defendant “fit into the class of persons for whom the statute was principally designed.”149 This same comparison of an individual offender and legislative intent could limit the expansive use of civil forfeiture to raise revenue. The Excessive Fines Clause could provide for a more textured analysis of statutes that punish through financial burdens, while keeping the scope of the Fourth Amendment and due process clauses intact.150
On January 26, 2014, Sharnalle Mitchell was with her children in Montgomery, Alabama when police showed up at her home to arrest her.151 Mitchell was not accused of a crime. Instead, the police came to her home because she had not fully paid a traffic ticket from 2010. The single mother was handcuffed in front of her children (aged one and four) and taken to jail. She was ordered to either pay $2,800 or sit her debt out in jail at a rate of fifty dollars a day for fifty-nine days. Unable to pay, Mitchell wrote out the numbers one to fifty-eight on the back of her court documents and began counting days.
Financial motives are perverting law enforcement. Though effective resistance to these transformations must be political, constitutional criminal procedure also offers some doctrinal weapons. Shortly after Mitchell was released from jail, she and fifteen other Montgomery residents filed a federal lawsuit against the city alleging that their detention for failing to pay court debt was unconstitutional.152 The judge ordered the city to temporarily suspend its reliance on private probation companies.153 City officials have since agreed to a settlement that requires broad reform of the city’s municipal courts.154
Just as important as using the law to constrain these perverse innovations is rejecting the idea that gave rise to them. Policing should be focused on cooperating with communities to help them flourish. When police start going to people’s homes to arrest them in front of their children for traffic fines from four years earlier, the relationship between police and the communities they claim to serve is no longer a partnership. Instead, as policing becomes a way to generate revenue, police start to “see the people they’re supposed to be serving not as citizens with rights, but as potential sources of revenue, as lawbreakers to be caught.”155 This approach creates a fugitive underclass on the run from police not to hide illicit activity but to avoid arrest for debt or seizure of their purportedly suspicious assets.156 The vast demographic and residential disparities between police and the communities they operate in further exacerbate this tension.157 In turn, communities like Ferguson begin to see police not as trusted partners but as an occupying army constantly harassing them to raise money to pay their salaries and buy new weapons. This needs to end.