Financial Hardship and the Excessive Fines Clause: Assessing the Severity of Property Forfeitures After Timbs

The Yale Law Journal Forum (2020)

20 Pages Posted: 28 Jan 2020

See all articles by Beth A. Colgan

Beth A. Colgan

University of California, Los Angeles (UCLA) - School of Law

Nicholas McLean

University of Hawaii at Manoa - William S. Richardson School of Law

Date Written: January 3, 2020

Abstract

In the wake of the Supreme Court’s decision in Timbs v. Indiana—which held that the Fourteenth Amendment incorporates against the states the Eighth Amendment’s ban on the imposition of “excessive fines”—it is likely that state and lower federal courts around the nation will be called upon to further develop Excessive Fines Clause doctrine. The Court’s historical exegesis in its Timbs opinion, as well as aspects of existing Eighth Amendment doctrine, support an analytical framework under which courts would look to the effects of property forfeiture on individuals and their families—in particular, the infliction of financial hardship—when assessing the severity of a forfeiture in the proportionality review context. In this Essay, we sketch the outlines of a forfeitures jurisprudence that would take into account the ways that property deprivations may restrict employment and educational access, interfere with the ability to meet basic needs (including food, shelter, and medical care), create family and social instability, and impede the ability to satisfy legal obligations.

Keywords: punishment, poverty, property, Eighth Amendment, excessive fines, forfeitures

JEL Classification: K14

Suggested Citation

Colgan, Beth A. and McLean, Nicholas, Financial Hardship and the Excessive Fines Clause: Assessing the Severity of Property Forfeitures After Timbs (January 3, 2020). The Yale Law Journal Forum (2020). Available at SSRN: https://ssrn.com/abstract=3514914

Beth A. Colgan (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-825-6996 (Phone)

Nicholas McLean

University of Hawaii at Manoa - William S. Richardson School of Law ( email )

2515 Dole Street
Honolulu, HI 96822-2350
United States

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