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Fines, forfeitures, and federalism
Fines are ubiquitous in modern society, and they are imposed for both serious crimes and minor civil wrongs. The U.S. Supreme Court recently recognized that the Constitution's Excessive Fines Clause applies to the states, but that decision raises previously unexplored questions as to how to enforce the Clause's protections in the states. A key question is what role, if any, federalism should play in crafting doctrinal rules that apply the Clause's protections to state and local fines and related property forfeitures. This Article is the first to accord in-depth treatment to that important question.
The extent to which federalism principles should apply does not have an immediate and obvious answer. On the one hand, federalism plays a significant role in the Court's jurisprudence on the Cruel and Unusual Punishment Clause. The Court therefore generally takes a highly deferential approach in reviewing sentences of imprisonment. Lower courts have applied that same deferential review in the context of the Excessive Fines Clause. On the other hand, fines and forfeitures are unlike other forms of punishment-such as prison-because they are often used as a revenue source for state and local governments, creating a conflict of interest for state and local decision-making bodies.
To address this conundrum, this Article makes the novel argument that the Court should look to the exactions doctrine under the Takings Clause, which often implicates similar concerns of government self-interest and overreaching. Exactions and excessive fines are conceptually similar, but scholars thus far have overlooked the close relationship between them. The exactions doctrine gives minimal weight to federalism concerns, and it applies a heightened-scrutiny standard that is well suited to the excessive fines context. Indeed, differences between federal practice and state and local practices as to fines suggest that state and local discretionary fines should be subject to closer constitutional scrutiny than federal fines. As a recent example illustrates, such heightened scrutiny would ensure that the Excessive Fines Clause is not merely a parchment barrier, while still accounting for variations between states and localities in terms of their communities' values and needs.
Journal Article
Asset Recovery Handbook
The Asset Recovery Handbook is a practical tool to help policymakers, public officials, and those who have been entrusted with recovering stolen assets by informing them on how to pursue proceeds of corruption and navigate the challenges of international asset recovery.
eBook