How Can a Fine Be Unconstitutional?
I used to think that paying less for something was a good deal. Lower price = better deal, right? Now I’m a bit older, and my position has evolved (‘evolved’ is a condescending term, right?). It’s not always a good idea to go with the lowest price. Often, paying more for something means you’re getting a better value. So, finding the lowest priced burger, or steak, or car, or attorney—is not a good idea. Quality matters, value matters. And on that note, this article is worth what you paid for it.
Anyway, one of my favorite restaurants is Bern’s Steak House. Whenever I’m in Tampa, I try to hit Bern’s, and I consider it an excellent value. When I mentioned this to a friend who likes steak, he quipped that he can’t afford expensive steak houses. I don’t consider Bern’s expensive. A mere $34 buys a small filet, plus salad, plus loaded baked potato, plus French onion soup, plus two side items. That’s a lot of food for under $35. My friend says Outback does the same thing for $17, half the price. I say Bern’s at twice the price is a bargain, he says I’m paying too much.
Pricing tends to be relative, yet We The People have a constitutional protection against our government charging us too much bail, or too much of a fine. Excessive fines are banned by the Eighth Amendment to the United States Constitution. How can we tell if a fine is too expensive for the crime? That question was recently addressed in State v. Cotton, 2016 Fla. App. LEXIS 2859 (Fla. 2nd DCA February 26, 2016).
Cotton was convicted of soliciting a prostitute, something perfectly legal in Nevada and most of the planet–but illegal in Florida. Solicitation is a second degree misdemeanor, meaning that, a conviction can put you in jail for up to 60 days, and possibly a maximum fine of $500. In case you’re wondering how serious this crime really is, Florida has no lower criminal act than a second degree misdemeanor. That being said, the solicitation statute changed a few years ago by adding a mandatory fine of $5,000. Yes, you heard me. Let’s say you “holla” out of your vehicle for a street walker to enter your car for sex–that will get you a $5,000 fine. Not $2,850. Not $4,432. You must get the full $5,000 fine. This seems a bit excessive, doesn’t it? If you molest a child, there’s no $5,000 mandatory fine. If you beat your wife in front of the child you just molested, there’s no mandatory $5,000 fine. I could go on, but you get the idea.
Cotton’s trial court judge thought the $5,000 fine was excessive, and as such, declared the statute unconstitutional as violating the Eighth Amendment’s ban on excessive fines. In doing so, the lower court asked the higher court for some guidance on the following question “Whether the $5000 fine mandated by Section 796.07(6) Florida Statutes (2013), for a first violation of Section 796.07, a second-degree misdemeanor, is an excessive fine in light of the nature and gravity of the criminal offense being punished”. Id.
There are plenty of ways to approach this problem. Often, what is considered excessive depends upon who you’re asking. I went to my friend’s birthday party last night, he has a 9,000 square foot home. Beautiful. His front door cost more than my car, seriously. If you’re asking my friend whether or not a $5,000 fine is excessive, he’s spent that kind of money on dinner (wine, technically). So, no, it’s not an excessive fine to him. But, the law doesn’t ask defendant’s to fill out a financial affidavit before imposing a fine. The $5,000 fine is mandatory. The law doesn’t ask what type of sex was solicited, or for how much, the fine is imposed on everyone. The question then becomes, can we quantify this analysis so that we know, objectively, when enough is enough? The appellate court broke down their analysis into two prongs: (1) the principle of proportionality, and (2) the court’s “obligation to accord legislative acts a presumption of constitutionality”. Id. In other words, tie goes to the runner here. If our legislature went through all the trouble of making this $5,000 fine a law, the courts are going to bend over backwards to keep it constitutional. That being said, the appellate courts shouldn’t bend to such a degree that they approve every fine, thereby only paying lip service to the Eighth Amendment’s ban on excessive fines.
Rather than giving us substantive analysis, the Cotton court repeated vague notions like “the courts will not declare a statutory fine to be excessive in violation of the Constitution unless it is plainly and undoubtedly in excess of any reasonable requirements for redressing the wrong.” State v. Jackson, 417 So. 2d 1097, 1098 (Fla. 4th DCA 1982). The court paid lip service to a proportionality analysis, asking whether the fine “is reasonably and uniformly proportionate to the gravity of the offense, and therefore constitutionally sound”. Cotton, at 9. Is asking for $20 worth of oral sex proportional to a $5,000 fine?
The appellate court mentions how important it is that a fine be proportionate to the gravity of the offense, but the court doesn’t address the gravity of the offense, other than to say how bad vice crimes are for society. The court further claims that “[w]hile there is no bright-line ratio to determine whether a fine is excessive, strict proportionality is not the standard. See Bajakajjan, 524 U.S. at 336. Under the proportionality analysis, we must consider the nature of the criminal offense being punished and whether the $5000 fine exceeds “any reasonable requirements for redressing the wrong.” See Amos, 94 So. at 641. Even under such careful consideration, Cotton has not established that the fine, as applied to him, rises to the level required to be deemed unconstitutional.” Id. at 12. So, what is the gravity of asking a consenting adult to accept $20 for oral sex? Again, the court doesn’t really answer the question, but concludes that: “we agree with the State’s assessment that the [$5,000 fine] is a ‘relatively modest amount by today’s standards.” Id. at 14. Really? Relatively modest?
What’s frustrating about this court’s opinion is the lack of any real framework by which they reached their conclusion, and by which future fines may be analyzed. I’m not asking for a bright line, but we don’t even have any structure to overturn the trial court’s ruling. Would $6,000 be excessive? How about $10,000? Does the nature of the transaction play any role in their analysis? For example, I’ve defended solicitation of prostitution cases where the fee was as little as $20 for oral sex, or in excess of $300 for anal sex. Would a $5,000 fine be more appropriate on a $300 deal versus a $20 deal? Are the details of the agreement factored into the “gravity of the offense”? After reading this case we are no less equipped to determine what constitutes an excessive fine on a second degree misdemeanor.
The court did make one attempt at an analysis. They reasoned that, because a third solicitation offense is a felony with a maximum $5,000 fine, it must be constitutional to impose that same punishment on a first offender, noting that the “$5000 fine imposed by section 796.07(6) is constitutional as to third or subsequent violations of the prostitution solicitation statute because they are third-degree felonies. And as a result, the statute cannot be facially unconstitutional.” Id. at 11. The logic here is completely flawed. You cannot take the most extreme punishment–reserved only for those idiots who repeat the crime three times–and assume that such punishment is reasonable for a first offender. Really, I can’t make this stuff up. Basically, whatever sentence can be imposed for repeat offenders is “reasonable” for first offenders. Let’s expose this nonsense by taking a look at the United States Supreme Court case of Rummel v. Estelle, 445 U.S. 263 (1980). Rummel stole $120 in Texas, and that constituted a felony. Rummel’s problem was that Texas has a three strikes law, meaning that a third felony offense requires the imposition of a life sentence. Rummel had two prior felony thefts, one for $80, and one prior bad check for $29. Thus, his punishment for this third $120 felony was life in prison. Harsh, for sure. Rummel appealed the constitutionality of his life sentence on the $120 theft, but the U.S. Supreme Court upheld the life sentence. For our purposes, the point is that our “justice” system can be pretty harsh when folks repeat the same criminal behavior. It’s a stupid tax of sorts. That being said, no sane person would argue that the life sentence imposed on Rummel would be justified for a first offender. Yet, that’s the logic found in Cotton, as you can see above. A third solicitation is a felony which carries a $5,000 fine, therefore, this same punishment must be legal for a first offender.
But wait, there’s more. The appellate court concludes with–what I would call–a brief moment of clarity, noting that this “$5000 fine approaches the outer limits of constitutionality”. Yes, it does. Now, tells us why.
[In 2014, I wrote an article about the first court to declare this fine unconstitutional, and you can find that article here. I wrote about Cotton’s trial court case before the appeal, in 2015, when the lower court declared the fine excessive, and you can find that article here. It’s too early to say how the Cotton case will play out in jurisdictions outside the Second DCA, is it possible that some economically depressed districts will find the fine more excessive than a wealthier DCA?]