Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause

70 Pages Posted: 4 Feb 2013 Last revised: 28 Oct 2013

See all articles by Nicholas McLean

Nicholas McLean

affiliation not provided to SSRN

Date Written: February 1, 2013


Most modern courts that have been called upon to interpret and apply the Excessive Fines Clause of the Eighth Amendment have concluded that a fine or forfeiture can be unconstitutionally excessive only if it is grossly disproportionate to its associated offense. However, in light of its text, history, and purpose, the Excessive Fines Clause can appropriately be understood as encoding both a proportionality principle and a further limiting principle linking financial penalties to the personal circumstances and economic status of the offender. This Article seeks to address a significant and surprising gap in the extant literature by articulating and systematically developing an account of this second principle, known in traditional English law as salvo contenemento. I suggest that this principle is properly conceptualized as an “economic survival,” or “livelihood protection,” norm inherent in Eighth Amendment jurisprudence.

A growing scholarly literature suggests that the practice of assessing criminal financial penalties without sufficient regard to offenders’ personal economic circumstances is both widespread and harmful. Indeed, a number of authors have argued that the burden of unpayable criminal justice debt can effectively destroy offenders’ capacity for reintegration into society. Such practices are not only open to criticism on a policy level, however, but may properly be seen as constitutionally infirm: a fines and forfeitures jurisprudence that reflected the original meaning of the Excessive Fines Clause would be significantly more sensitive to the plight of the indigent criminal defendant, and more conducive to the rehabilitative goals of the criminal law.

Keywords: Eighth Amendment, Constitutional law, criminal law, legal history

Suggested Citation

McLean, Nicholas, Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause (February 1, 2013). 40 Hastings Const. L.Q. 833 (2013). Available at SSRN:

Nicholas McLean (Contact Author)

affiliation not provided to SSRN

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