William & Mary Law Review


Beth A. Colgan


A key component is missing from the Eighth Amendment’s Excessive Fines Clause doctrine: Who has the burden of proof? This question—which has been essentially ignored by both federal and state courts—is not just a second-order problem. Rather, the assignment of burdens of proof is essential to the Clause’s enforcement, making it harder—or easier—for the government to abuse the revenue-generating capacity of economic sanctions in ways that can entrench poverty, particularly in heavily policed communities of color.

This Article takes on this question by first sorting through a morass within the U.S. Supreme Court’s due process doctrine as it relates to assessing the fundamental fairness of procedural practices, including the assignment of burdens of proof. After offering a framework that reconciles the doctrine, it applies that framework to the excessive fines context by breaking the “burden of proof” into four component parts: (1) the burden to raise the excessive fines claim, (2) the burden of producing evidence relevant to that claim, (3) the burden of persuading the decision maker as to the result, and (4) the standard of proof to be employed in that determination. While the government and private interests at stake remain constant across these various burdens, disentangling them allows a more exacting inquiry. In particular, it allows for an examination of how lawmakers have crafted related processes and structures—such as the refusal to provide counsel or the vast array of direct and collateral consequences attached to both non-payment and conviction—that make it more likely that abuses of power will occur absent the check on authority that burdens of proof can help provide.