Page 52 - Impact: Collected Essays on the Threat of Economic Inequality

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It is first critical to recognize that LFOs do not operate in a vacuum, but in a greater system of collateral consequences . The two are indeed intimately connected in jurisdictions that make restoration of civil rights hinge on full payment of LFOs . As repayment of LFOs can take some decades, the restoring of civil rights can take equally long .35 Hence, on their own, LFOs have the potency to create an underclass . Yet even if there were no such thing as an LFO, the collateral consequences of a felony conviction present many obstacles to successful reintegration . Thus, reforming LFOs sits within the broader need to rethink collateral consequences as a whole . Such laws have made survival on the outside a difficult feat, even though legislation like the Second Chance Act provides federal funding to local governments to run reentry programs; the legislation will ring rhetorical as long as releases remain chained to poverty .36
The decision to attach financial penalties is particularly harmful since prisoners have few self- improvement opportunities in prison . Since the passing of legislation in 1994 barring Pell grant funding to state and federal prisoners, there are few opportunities for higher education or even vocational training in prison . As degrees are often required for meaningful employment, LFOs and lack of education combine to cripple individuals from ever moving beyond last-class status . Moving forward politically will entail scaling back LFOs and collateral consequences, and reducing the number of obstacles for felons to reintegrate into society .
Finally, the constitutional question of whether a fine is excessive needs revisiting . According to the Court, the prohibition on excessive fines has never been fully incorporated against the states .37 Although the excessive fines clause has been in existence for over two hundred years, the Court has failed to make this meaningful against a state’s application of fines as punishment .
It is time for the Supreme Court to review this aspect of its Eighth Amendment jurisprudence, and do the right thing by incorporating excessive fines against the states . It has been only very recently that Excessive Fines Clause jurisprudence has experienced a revival .38 However, it still seems conspicuous that the bill of rights—in its near entirety—has been incorporated against the states, while there are still seemingly no limits to financial punishments . This omission, authorized by the judicial branch of government, breeds an heir of suspicion .
Furthermore, the Court must settle the issue of whether one’s ability to pay should factor into what is “excessive .” Circuits are split on the issue . Some hold that the penalty must not be “grossly disproportionate in relation to” the offense, and have generally not regarded an offender’s ability to pay the fine as relevant in the Eighth Amendment context .39 The emerging approach requires courts to consider an additional factor as well—whether “the contemplated fine or forfeiture [will] be so severe as to destroy a defendant’s livelihood .”40
This essay urges the Court to settle this score and hold that “excessive” is relational and, in addition to the level of crime committed, must respect the offender’s ability to pay . The financial
35 Id. at 390 (summarizing appellate court decisions that have concluded that payment of LFOs before the restoration of voting rights is constitutional, regardless of a persons ability to pay.).
36 See Second Chance Act of 2007, Pub. L. No. 110-199, 122 Stat. 657 (2008) (providing federal funding for state and federal reentry programs).
37 McDonald v. City of Chicago, Ill., 561 U.S. 742, 765 n. 13 (2010).
38 Nicholas M. McLean, Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause, 40 hasTings
consT. l.q. 833 (2013).
39 Id. at 834-35.
40 Id. at 835 & n.7.
Impact: Collected Essays on the Threat of Economic Inequality