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Restitution and the Excessive Fines Clause
American Criminal Law Review  (IF3.455),  Pub Date : 2021-12-01, DOI:
Nathaniel Amann

A criminal conviction often, if not always, involves the imposition of financial penalties on a defendant. Such penalties can be catastrophically debilitating for defendants. With such severe consequences possible, it is of little wonder the Eighth Amendment’s prohibition on excessive fines exists. However, the exact state of the law surrounding the Excessive Fines Clause is anything but clear, especially when it comes to purportedly “remedial,” rather than punitive, payments. Under current Supreme Court doctrine, purely remedial payments might not be constrained by the Excessive Fines Clause at all. This understanding has serious consequences for criminal defendants who frequently find themselves saddled with such payments. Remedial payments frequently come in the form of “criminal restitution” – a theoretically remedial payment that has seen growing popularity over the years. To partly address this blind spot in the law of the Excessive Fines Clause, this Note uses a historical lens to explore whether the Excessive Fines Clause is meant to constrain criminal restitution. It explores the origins of the Excessive Fines Clause and follows its gradual development until the day it was incorporated into the Bill of Rights.