EXCESSIVE

With extensive original analysis and empirical data on the commodity markets, Better Markets, Inc., a nonprofit organization that promotes the public interest in the financial markets, filed a detailed comment letter with the US CFTC on March 28, 2011. That letter demonstrates that excessive speculation in the commodity markets is very damaging and needs to be corrected by position limits. The comment letter (accessible at http://www.bettermarkets.com/assets/pdf/CL-CFTC-PL-Final.pdf ) reveals the following facts:


INTRODUCTION
Modern criminal restitution is a unique beast that has seen growing usage over time. 1 It is one of the most common remedies granted to crime victims in the modern criminal justice system. 2 Although use of restitution has grown, a crucial question associated with restitution remains unanswered: whether the Eighth Amendment's Excessive Fines Clause constrains such awards. 3The Eighth Amendment to the U.S. Constitution states that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." 4The Supreme Court has not resolved the question of whether the word "fines" includes restitution awards, and there is conflict in the lower courts.
On the surface, this question may seem to be of little value-after all, restitution has been traditionally understood to be a disgorgement of the defendant's wrongful gains, or "forc[ing] a defendant to disgorge a profit wrongfully taken." 5 Under such a conceptualization, restitution could never actually violate the Excessive Fines Clause because disgorgements would always be proportionate to the wrong that the defendant committed. 6However, in the modern criminal justice system, the value of restitutionary awards can be entirely disconnected from the defendant's gain. 7Instead, modern criminal-justice restitution awards are often based on the victim's purported loss, which is a characteristic better described as compensatory rather than restitutionary. 8With this expansion of restitution to include losses borne by the victim, the opportunity arises for the imposition of huge and disproportionate-yet purportedly restitutionary-judgments on defendants. 9or example, suppose a criminal defendant is charged with, and found guilty of, assault on another person.Suppose further that, in committing the assault, the defendant gained nothing of pecuniary value.Under California law, a court must issue a "restitution order" compelling the defendant to "fully reimburse the victim . . .for every determined economic loss incurred as the result of the defendant's criminal conduct . . .." 10 So, if the victim suffered $10,000 in medical expenses, the defendant will be made to pay that bill as part of his criminal restitution. 11That payment is not disproportionate-the medical expenses are clear-cut and proportionate to the defendant's wrong.However, the equation becomes less clear when considering the potential scope of "economic loss." 12 Suppose that the assault resulted in severe psychological harm that seemingly will render the victim unable to work full-time for the next ten years, resulting in an estimated reduction in pay of $50,000 per year for the victim.In such a situation, the defendant might have to pay $500,000 in restitution to the victim for his crime. 13The question of proportionality in such a situation becomes murkier.
This expansion of criminal restitution to include payments based on the victim's loss (rather than purely the defendant's gain) has become well-accepted. 14cholars have described this conception of criminal restitution as "the prevailing approach." 15Additionally, multiple states have adopted this broad understanding of restitution by passing minimum restitution statutes, requiring the imposition of minimum sums of compensatory-style restitution for various criminal violations with only few exceptions. 16Restitution is also frequently the "last part of an offender's sentence to be discharged," ensuring that offenders are forced to make the required restitution regardless of their personal circumstances, including inability to pay. 17These features make restitution a force in the modern criminal justice system that is ripe with opportunities for abuse.Defendants seeking relief from this new understanding of criminal restitution may well turn to the Eighth Amendment for help, making the constitutional issue more pressing than ever before.
Because of its long-term neglect, the Excessive Fines Clause may be described as the ugly stepchild of the Eighth Amendment, receiving far less attention than its much more handsome brother, the Cruel and Unusual Punishments Clause. 18ndeed, very little has been written about the Excessive Fines Clause at all. 19mpare Google Scholar Results for the Excessive Fines Clause, GOOGLE SCHOLAR, http://scholar.google.com(type "Excessive Fines Eighth Amendment" into search bar and click search icon) (last visited Nov. 23, 2020), with Google Scholar Results for the Cruel and Unusual Punishments Clause, GOOGLE SCHOLAR, http:// scholar.google.com(type "Cruel and Unusual Eighth Amendment" into search bar and click search icon) (last visited Nov. 23, 2020) (showing substantial disparity in number of hits between the two clauses).
Even though the Excessive Fines Clause may have been ignored for much of its history, it is still a consequential part of the Constitution. 20As such, it deserves proper

2020]
RESTITUTION AND THE EXCESSIVE FINES CLAUSE attention.That is precisely what this Note hopes to achieve: the dual aims of providing an answer to the important constitutional question of whether the Excessive Fines Clause applies to restitution, while also adding to the constitutional scholarship surrounding it.In answering the question of whether the Excessive Fines Clause constrains restitution, this Note will explore the original understanding of the Excessive Fines Clause from a variety of historical perspectives, including those found in the foundational English treatises and in the laws and practices of the early American states. 21Because the ultimate answer hinges heavily on the precise original meaning behind the word "fines" as it is found in the Eighth Amendment, 22 much of this Note's analysis focuses on historical understandings of the word.The analysis proceeds in three main parts.Part I discusses the current state of the law and how it affects the understanding of restitution in relation to the Excessive Fines Clause.Part II covers the historical understandings of the Excessive Fines Clause from an English perspective, especially those of the great English thinkers, Sir Edward Coke and Sir William Blackstone.Part III addresses early American conceptualizations of the Excessive Fines Clause, focusing on colonial-era statutes and practices.The Note concludes that, properly understood, restitution should be subject to the Excessive Fines Clause.

A. The Supreme Court & Restitution
The current doctrinal landscape surrounding the Excessive Fines Clause is relatively underdeveloped because it stood practically untouched for over 150 years. 23he Supreme Court's first interpretation of the Clause came in 1989 with its decision in Browning-Ferris Industries v. Kelco Disposal, Inc.That case involved an Eighth Amendment challenge to the constitutionality of a six-million-dollar civil jury punitive damages award. 24Analyzing the Excessive Fines Clause through a historical lens, the Court noted that, given the Eighth Amendment's references to "bail," "fines," and "punishments," the Court's cases "long have understood it to apply primarily, and perhaps exclusively, to criminal prosecutions and punishments." 25As such, the Excessive Fines Clause was not meant to disturb a jury award of punitive damages in a civil trial, affirming the judgment of the lower court. 26However, the Court did not find occasion to announce the proper constitutional test for excessiveness.
Four years later, in Austin v. United States, a case addressing the applicability of the Excessive Fines Clause to in rem civil forfeitures, the Court interpreted the Excessive Fines Clause a second time. 27There, the government sought civil forfeiture of the petitioner's mobile home and auto body shop as a result of his drug conviction and argued that the Eighth Amendment applied only to criminal proceedings. 28The Court rejected this argument and held that "the question is not . . .whether forfeiture under [statutory law] is civil or criminal, but rather whether it is punishment." 29This determination did not disturb the Browning-Ferris resultrather, it clarified that, when a state (as opposed to the private party in Browning-Ferris) goes after a person in either the criminal or civil context, the Eighth Amendment applies if the remedy sought was meant to be a punishment for the alleged wrongdoer. 30With this, the Excessive Fines Clause now had a threshold requirement; if the remedy sought was punitive, then the Excessive Fines Clause applied. 31n dicta, the Court also considered the question of "remedial" forfeitures (i.e., restitution) and noted that "[w]e need not exclude the possibility that a forfeiture serves remedial purposes to conclude that it is subject to the limitations of the Excessive Fines Clause." 32This is because even supposedly remedial measures taken could still be, in some part, punitive if they "serv[e] either retributive or deterrent purposes" and thus satisfy the Court's threshold punitive requirement for Excessive Fines Clause application. 33Under this analysis, the Excessive Fines Clause applied to the forfeitures in Austin because they were punitive. 34

2020] RESTITUTION AND THE EXCESSIVE FINES CLAUSE
In spite of Austin's wide-ranging opinion, the Court still did not adopt a constitutional test for excessiveness. 36The question of what constitutional standard to use in the Excessive Fines Clause context was finally answered in United States v. Bajakajian, issued in 1998. 37There, the government sought forfeiture of $357,144 because the defendant violated reporting requirements for transporting large sums of money. 38Turning to history in much the same way that it did in Browning-Ferris and Austin, the Court concluded that the history of the Excessive Fines Clause was so scant and vague that a proper constitutional standard could not be derived from history alone. 39Accordingly, the Court turned to other sources for inspiration and found it in the neighboring Cruel and Unusual Punishments Clause. 40his clause's gross disproportionality test was imported into the Excessive Fines Clause context. 41The Court held "[i]f the amount of the forfeiture is grossly disproportional to the gravity of the defendant's offense, it is unconstitutional." 42ith the trifecta of Browning-Ferris, Austin, and Bajakajian, the Excessive Fines Clause finally had the beginnings of a proper, Supreme Court-developed doctrinal base to guide the lower courts, although the question of restitution remained unanswered.
After this initial development, the Excessive Fines Clause doctrine went dormant again for twenty years until Timbs v. Indiana. 43In a brief opinion, written two hundred years after the clause's adoption in the Bill of Rights, the Court held that the Excessive Fines Clause was incorporated against the states. 44But the Court went no further. 45hroughout this thread of cases, the Court has never directly decided the question of whether the Excessive Fines Clause constrains restitution awards. 46owever, dicta in the Court's Austin and Bajakajian decisions suggest that the Court would consider restitution to be a fine. 47Furthermore, the Court has hinted at the contours of how it would decide whether a particular restitution measure is a fine. 48The test seems to be that the Excessive Fines Clause only constrains restitution awards if such awards serve at least partially punitive aims. 49Several state courts have reached this same answer in interpreting their own excessive fines clauses.

B. State Courts & Restitution
State court decisions have been inconsistent on this question, but the Iowa Supreme Court has given one of the most definitive answers on whether the Excessive Fines Clause constrains restitution.In State v. Izzolena, 50 the Iowa Supreme Court held that the State's own constitutional restraint on excessive fineswhich uses essentially identical language to that of the Eighth Amendment-covers awards of restitution. 51The court traced the history of the state's constitutional provision back to the 1689 Virginia Declaration of Rights and used Supreme Court case law (i.e., Bajakajian and Austin) to conclude that "[t]he clause served to limit the ability of government to use its prosecutorial powers to impose excessive monetary sanctions." 52"Thus, the test developed to determine whether a particular sanction falls within the Excessive Fines Clause as a 'fine' is whether it is, at least in part, punishment." 53The court then proceeded to analyze the criminal restitution awarded by the lower court and found that, in substantial part, it served punitive aims. 54The court determined this by first explaining that "[e]ven though a sanction may serve a remedial purpose, it is still subject to the Excessive Fines Clause if it can only be explained as serving in part to punish." 55Then the court found that the award, in addition to being remedial, served "other purposes normally associated with punishment such as retribution and deterrence." 56This service of punitive aims was sufficient for the Excessive Fines Clause to be applicable. 57he Idaho Court of Appeals's conclusion in State v. Cottrell generally tracks the Iowa Supreme Court's analysis, but diverges on the standard to determine whether remedial sanctions are punitive. 58First, the court noted that the state's constitution and the U.S. Constitution both have identical excessive fines clauses. 59ccordingly, the Idaho Court of Appeals analyzed state case law along with Supreme Court precedent and found that the "payments or other imposed financial obligations are 'fines,' for purposes of the Eighth Amendment, only if they constitute punishment." 60Thus, "the first step in any question regarding excessive fines 49.Colgan

2020]
RESTITUTION AND THE EXCESSIVE FINES CLAUSE is to determine whether payments are punitive or remedial," with only the former being constrained by the Excessive Fines Clause. 61However, in a break from Iowa, the Idaho Court of Appeals focused on whether the "primary purpose" of the award was to punish, 62 rather than if the award could "only be explained as serving in part to punish." 63Analyzing the state restitutionary statute under this scheme, the Idaho Court of Appeals noted that several factors indicated that the statute had a remedial, rather than a punitive, purpose. 64The court considered such factors as whether the statute mandated restitution, whether the statute made a clear distinction between restitution and fines, and what standard of proof the statute required for a restitutionary award to be issued. 65Because of these remedial factors, the court stated that it was "convinced that the primary purpose of restitution in Idaho is remediation." 66The court then held that the restitution statute was not bound by either the federal or state Excessive Fines Clauses. 67hese two cases do not illustrate the full picture of state-court decisions regarding the Excessive Fines Clause.State case law on the subject is so unclear that it has been called a "quagmire," especially with regard to the precise definition of a "fine" and whether it incorporates a punitive requirement. 68Nevertheless, out of this body of case law, one overarching principle emerges: the importance of historical evidence in determining the meaning of the Excessive Fines Clause. 69The Supreme Court, in particular, has interpreted the clause through a historical lens in all three of its major excessive fines cases during the Bajakajian era. 70The fourth major case, Timbs v. Indiana, was decided in 2019 and also emphasized viewing the Excessive Fines Clause through a historical lens, further cementing historical analysis as the touchstone of understanding the clause. 71Following the practice of the Supreme Court and various state courts, the analysis must begin with history.

II. ENGLISH UNDERSTANDINGS OF EXCESSIVE FINES
The Excessive Fines Clause finds its origins in the Magna Carta. 72However, the Magna Carta does not speak of fines-it speaks of amercements.Clause fourteen of the Magna Carta reads: "A freeman is not to be amerced for a . . .offence save in accordance with the manner of the offence. . .." 73 An amercement is similar to what we now think of as a fine, though it was originally a distinct concept. 74It was a non-optional pecuniary penalty imposed by the king; the criminal was "in the King's mercy" and subject to whatever financial punishment that was to be handed down by the crown. 75An amercement had two important features: first, it was considered to be punishment for a wrong, and second, payments made under force of an amercement were directed to the king, not to any other wronged party. 76A fine, on the other hand, was an optional payment by which "the offender could obtain his discharge from prison." 77In other words, a fine was an optional "alternative to imprisonment." 78The distinction between an amercement and a fine did not survive the test of time, and the amercement slowly disappeared as the fine absorbed its dual requirements. 79y the seventeenth century in Britain, the distinction between an amercement and a fine had not yet been eliminated, but it rested on shaky ground. 80The great Scottish jurist Sir Edward Coke's seminal work on law, Institutes of the Laws of England, which was published between 1628 and 1644, illustrates the dissolution of the line between a fine and an amercement. 81There, he wrote that a "fine signifieth a percuniarie punishment for an offence, or a contempt committed against the king." 82Coke's definition shows that the old understanding of a fine as an alternative to prison had been supplanted, if not wholly replaced, by the amercement's purpose as a punitive payment to the king. 83 separately in Institutes, his definition of a fine reveals a significant overlapping of the concepts. 84urthermore, any differences that Coke might have recognized between a fine and an amercement were not reflected in actual English practice of the time. 85ake the case of Titus Oates, for example.This case appeared before the King's Bench in 1685 when Mr. Oates was "fine[d] . . .1000 marks upon each indictment" for his crimes. 86Even though the court called this a fine, it exhibited the two key qualities of an amercement: it was payable to the king, and it was meant to punish Mr. Oates for his crimes. 87The court's own confusion about the distinction between an amercement and fine illustrates the fading distinction between the two. 88hile the mid-seventeenth-century texts demonstrate English confusion regarding the precise meaning of a "fine" and whether it was distinct from an amercement, eighteenth-century sources clarified the concept.By the time of Blackstone's Commentaries on the Laws of England, published between 1765 and 1770, the difference between a fine and an amercement was gone. 89In his work, Blackstone stated that "the reasonableness of fines in criminal cases has . . .been usually regulated by the determination of the magna carta, c. 14, concerning amercements . . .," reflecting his then-modern understanding that fines were indistinguishable from amercement-like payments and thus were subject to the same restrictions and requirements as amercements. 90iguring into the timeline between Coke's and Blackstone's works is the actual passage of the oldest direct predecessor to the American Excessive Fines Clause: the 1689 English Bill of Rights. 91The 1689 Bill of Rights was enacted some forty years after Coke's Institutes was published. 92With the outsized influence that Coke had on English law, it is highly likely that some semblance of his understanding that fines contained amercement-like requirements was incorporated into the English Bill of Rights. 93Furthermore, Blackstone's words-which came some eighty years after the 1689 Bill of Rights' enactment-confirm that, at least by Blackstone's time, scholars thought that the 1689 Bill of Rights's excessive fines provision had amercement roots and incorporated amercement-like requirements. 94his dovetails with what Coke originally envisioned in Institutes. 95Thus the 1689 English Bill of Rights incorporated the Magna Carta's amercement requirements into its excessive fines provision and then passed them on to its direct descendant: the U.S. Constitution's Excessive Fines Clause. 96wo hundred years later, the Supreme Court agrees with this historical interpretation; it is this blended understanding of fines as containing amercement-like qualities that has survived the test of time. 97However, if this were the end of the analysis, there would be two bars to the Excessive Fines Clause restriction of restitution: first, amercements were traditionally understood to involve payments to the king, not a private party; and second, amercements were imposed as punishment. 98his first feature of amercements would bar the majority of restitution payments from the scope of the Excessive Fines Clause because restitution necessitates that the payment be made to the wronged party, and oftentimes the wronged party is not the U.S. government (the American equivalent to the "king"). 99The second feature-that amercements were imposed as punishment-would bar purely nonpunitive payments from being cognizable. 100This bar would include non-punitive restitution, as understood by the state of Idaho. 101As a result of these two requirements, the Excessive Fines Clause would be applicable to only those awards that were payable to the government, 102 and served primarily punitive goals. 103

2020]
RESTITUTION AND THE EXCESSIVE FINES CLAUSE most relevant, source of evidence that should be considered. 105

III. AMERICAN UNDERSTANDINGS OF THE EXCESSIVE FINES CLAUSE
The exploration of American history starts with the Eighth Amendment itself. 106he immediate history surrounding the Excessive Fines Clause provides the best contemporary understanding of the meaning of a "fine."This is precisely where the Supreme Court began in Browning-Ferris. 107But the Eighth Amendment received remarkably little debate when it was first proposed, and, as the Court put it, "the Excessive Fines Clause received even less attention." 108The entirety of the debate on the congressional floor when the Eighth Amendment was first proposed is as follows: [T]he committee, who then proceeded to the [Eighth Amendment].Mr. Smith, of South Carolina, objected to the words "nor cruel and unusual punishments;" the import of them being too indefinite.Mr. Livermore -The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary.What is meant by the terms excessive bail?Who are to be the judges?What is understood by excessive fines?It lies with the court to determine.No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel?If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restricted from making necessary laws to any declaration of this kind.The question was put on the clause, and it was agreed to by a considerable majority. 109is brief debate shows that Congress' primary focus was the Cruel and Unusual Punishments Clause, not the Excessive Fines Clause. 110But the dearth of debate on the Eighth Amendment when it was first proposed does not mean that the history of the Excessive Fines Clause is hopelessly obfuscated. 111Despite its insignificance on the congressional floor, the Excessive Fines Clause has a rich and fertile American history from which to draw upon.The Eighth Amendment's Excessive Fines Clause was not unusual or new to the American people. 112As has been described, its roots lie in the Magna Carta and the subsequent 1689 English Bill of Rights. 113Additionally, as subjects of the English Crown, the American colonies inherited-as they explicitly declared-rights analogous to those of English subjects living in the home country. 114These rights also necessarily included the provisions of the 1689 English Bill of Rights. 115But America was not frozen in time; it frequently went off on its own journey of legal experimentation and evolution, separate from the laws and traditions of Great Britain. 116In the time between the colonization of America and the passage of the Bill of Rights in 1789, America was well on its way to developing its own unique body of law. 117It was these early and divergent American understandings of the law that were first written into early state constitutions or declarations of rights and then later incorporated into the federal Bill of Rights, including the Eighth Amendment. 118Accordingly, any inquiry into the original meaning of the Excessive Fines Clause must pay due attention and deference to this unique era in American history.

A. State Statutes
Early American statutes against theft and other types of stealing changed the traditional English paradigm regarding what constituted a "fine"-i.e.requiring that payments be made to the government and that it be punitive-in two ways.First, in a departure from the traditional English understanding of a "fine" as possessing a "to the king" requirement, 119 early American statutes show that a fine could now be made payable to a third party rather than the government. 120With this broadening of who was an acceptable payee of a "fine," restitution payments were now much more identifiable as a fine. 121Second, the statutes reveal that restitution was considered to be punitive in its own right. 122This is because restitution was often imposed in highly-punitive contexts, such as criminal proceedings. 123It was also often imposed as the only statutorily-required punishment. 124Finally, restitution was treated as essentially indistinguishable from more "traditional" punitive payments. 125As a result, restitution is best understood to be inherently punitive, as a matter of early American law.These two developments-the removal of the "to the king" requirement, and the understanding of restitution as punitive-show that restitution was considered a "fine" in early American law.
The colony of Pennsylvania passed one of the first examples of a colonial statute possessing both of these characterizations in 1700. 126Its statute, which was designed to punish stealing, declared that if goods were stolen and not returned, "the felon or thief shall pay to the owner thereof fourfold" of the value of items stolen-a payment that was designed to both compensate the owner for their losses and punish the wrongdoer for his crime. 127One thing immediately stands out in this statutory language: the imposed payment was actually payable to an entity other than the government. 128Additionally, the statute does not even explicitly reserve a component of the payment for the state or otherwise ensure that the government got its cut of the penalty charged. 129Rather, the entity that was entitled to the full payment was the "owner" of the stolen goods, 130 standing in clear contrast to traditional amercements, which required payments to be made out to the king. 131he payment imposed by the statute was also substantially punitive, regardless of its partially remedial character. 132First, the payment was imposed in the criminal context as a punishment for people who stole. 133Second, the payment was required by statute, whereas other punishments, like branding and whipping, were optional, implying that the payment was considered punitive to the point where it could, by itself, sufficiently punish some criminals for their wrongdoing. 134Third, the statute itself did not make any attempt to distinguish between the remedial component of the mandatory payment-paying the owner back the value of what was lost-and the punitive component-paying the owner more than the value of what was lost.Instead, it treated both components alike, incorporating them into one universal four-fold payment. 135This congruous treatment between punishment and remedy lends credence to the view that, at the very least, colonial Americans did not think of remedial payments as deserving "special" treatment subject to different rules than punitive awards. 136Ultimately, the payment here was designed to punish the wrongdoers, and its partially remedial features did not change that design. 137Such laws were not unique to Pennsylvania; a 1702 Connecticut statute against burglary and theft was quite similar to the Pennsylvania law. 138It stated that anyone who stole "[s]hall forfeit treble the value of the Money, Goods or Chattels, [s]o [s]tollen [sic] or purloined, unto the owner or owners thereof." 139Similarities between this statute and the Pennsylvania law are readily apparent. 140It allowed for payments to be made to the wronged party, rather than to the sovereign. 141The payments imposed were similarly punitive: the payment was imposed in a criminal context, it was mandatory, and the statute did not recognize any distinction between the punitive and the remedial components of the payment. 142owever, there is one key difference between the Connecticut and Pennsylvania statutes.The Connecticut statute explicitly called the payment that it imposed "restitution." 143The statute stated that "if any [s]uch offender be unable to make re[s] titution, or pay [s]uch threefold damages, [s]uch offender [s]hall be enjoyned [sic] to make [s]atisfaction by Service." 144The entire payment was referred to as "restitution," in spite of the payment's punitive character in making the criminal pay beyond the value of what was stolen. 145But just a few words after calling such a payment "restitution," the statute reversed course and called it "damages." 146This interchangeable treatment of the terms restitution and damages underscores the indistinguishable nature of these components in colonial America; a payment could be both remedial and punitive at the same time. 147It is this interchangeability that speaks to the inherent punitiveness of restitutionary payments.
These American understandings did not die out over the years.For example, a 1748 Virginia statute against stealing hogs required that payment be made to the wronged owner of the stolen hogs to the tune of "Four Hundred Pounds of Tobacco" for each hog stolen, 148 in addition to either public whipping or a payment 136.In other words, the compensatory component of the payment was not recognized as being distinct enough from the damages component to be portioned out and treated differently.Id

2020]
RESTITUTION AND THE EXCESSIVE FINES CLAUSE made to the state. 149Once again, the payment here was made payable to the wronged party and imposed in a punitive context. 150Importantly, despite the statute allowing for the imposition of additional punishments beyond the payment of 400 pounds of tobacco, the initial payment of tobacco was not meant to be wholly remedial.The initial payment also served inherently punitive aims because the statute provided that half of the tobacco paid by the wrongdoer be made payable to the informer. 151The possibility that the farmer could recover less than the full 400 pounds shows that at least some component of the initial payment was not purely remedial, for it would be unjust for the farmer to recover less than full compensation for his injuries.Rather, instead of being purely remedial, the payment, in some sense, was meant to incentivize informants to speak to governmental authority while also punishing wrongdoers with a duty to pay more than what they stole. 152Regardless of the multiple purposes of the tobacco payment here, the statute made no attempt to distinguish between the remedial and punitive components of the initial tobacco payment.This lends yet more credence to the idea that, at least in Virginia in 1748, the fact that a payment had substantial remedial components did not strip it of its inherent punitiveness. 153hese American understandings persisted even through the American Revolution.In 1784, Connecticut's original statute from 1702 still remained on the books.In fact, it had expanded to explicitly cover horse theft. 154The punishment for horse theft still featured a payment made to the wronged party, 155 and it was still imposed in a punitive context.More precisely, a person who stole a horse was forced to pay back to the wronged owner treble the value of the horse as his punishment for his theft. 156nce again, the law made no attempt to distinguish the damages and compensatory elements of this payment. 157The statue even goes on to refer to the treble-value payment generally simply as "damages," even though the payment had a partially remedial character.This again demonstrates that the existence of a remedial element in a payment does not convert it from a punitive one to a non-punitive one. 158tatutes that exhibited these features covered a broad gauntlet of concerns. 159Such colonial concerns ranged from theft, as mentioned above, to property damage, 160 to encouraging slaves to run away. 161All of these statutes featured restitution as a substantial component of their punitive payment scheme. 162Some of these punitive payments were also explicitly called "fines."For example, one 1791 South Carolina statute that outlawed gambling, which was passed the same year as the U. S. Bill of Rights, stated that a convicted swindler would be forced to "refund" his victims. 163The same statute then went on to refer to the refund as a "fine" a few sentences later, even though the payment had was restitutionary in nature. 164hese statutes reveal two key points: the amercement's "to the king" requirement died an early death, which allowed mandatory restitution to become an amercement-like penalty; and restitutionary payments that combined both remedial and punitive elements were considered to contain inherently punitive qualities. 165First, a payment imposed on a wrongdoer could now contain restitution paid to a third party without running into the theoretical bar imposed by the "to the king" requirement.Second, restitutionary payments that combined both remedial and punitive elements were considered to contain inherently punitive qualities 166 because (1) such payments were often imposed in highly punitive and criminal contexts; 167 (2) the payments were often imposed as the sole mandatory punishment for a crime; 168 and (3) statues prescribing the payments did not distinguish between their restitutionary and punitive components, instead preferring to treat them as one and the same. 169Ultimately, substantial statutory evidence shows that restitutionary and punitive payments were considered a part of the same pecuniary "toolbox" used to punish wrongdoers. 170Together, these points demonstrate that restitution's compensatory characteristics do not immediately bar it from being a cognizable "fine" under the Excessive Fines Clause.

B. Common Practice
The statutory evidence presented must not be viewed in a vacuum, though; the common practice of colonial Americans also sheds substantial light on their understanding of a "fine."Such common practice substantially supports the two conclusions already reached.First, common practice of the colonists shows that fines were not required to be made out to a sovereign. 171Rather, they could be made payable to a non-governmental entity, including to wronged parties in the form of restitution. 172Second, restitution was treated as possessing punitive qualities in its own right.Partial or whole restitution payments were imposed in highly punitive contexts, often as the sole punishment for a crime, and were treated virtually identically to other forms of pecuniary punishment, such as damages awards. 173Simply put, the common practice in colonial America shows that the Excessive Fines Clause applies to restitution.
First, early court cases show that colonists did not revive, by way of common practice, the ancient "to the king" requirement that was originally eliminated by their statutory laws. 174Rather, the colonists most assuredly drove the final nail into the coffin of that English requirement with the 1798 Virginia case Goodall v. Bullock. 175This case came a mere seven years after the ratification of the Bill of Rights.Goodall, the party sanctioned in the lower court, argued against his sanction on the basis that it violated the ancient requirement that a fine go to the sovereign. 176The court promptly struck down that argument, holding that, because the injured party was not the government, but rather a private party, a fine could be paid to him. 177Stated differently, the court considered the amercement "to the king" requirement as only existing because, in England, the sovereign was considered to be the injured party. 178Accordingly, if a private party was injured, it was only natural that a fine (i.e., amercement) be directed to him. 179The time and place of this case is especially relevant.The case appeared in Virginia, which drafted its Declaration of Rights-including an excessive fines provision-around twenty years prior to the case. 180The Virginia Declaration of Rights is credited as a major influence on the federal Bill of Rights and Virginia's treatment of restitution under its Declaration of Rights can inform our understanding of the federal Bill of Rights. 181Monetary sanctions, as understood by the American people (not just Virginians) at the time, did not have to go to the sovereign, meaning that restitutionary payments could be considered fines. 182econd, early cases overwhelmingly show that restitutionary payments were often imposed as a punishment.For example, in a 1672 case against a person named Alice Thomas, who was found guilty of "abetting accessary in Burglary," was ordered to "restore to" her victims threefold the value of goods stolen. 183Regardless of the compensatory element that the imposed payment carried, it is best understood as a punitive fine.First, it was only imposed after Alice was found guilty by a jury, and it was a part of her sentence for her crimes. 184Second, forcing her to pay treble value (i.e., triple the value) of what she stole back to the people she wronged is punitive in nature. 185Finally, even though the payment had some remedial elements, the court did not single out these elements for special treatment. 186ather, both the remedial and punitive elements were combined and imposed in one universal payment meant to punish the wrongdoer, further demonstrating that a payment with remedial elements does not strip it of its inherent punitiveness. 187his is not to say that only "mixed-goal" payments-i.e., single payments that served both remedial and punitive goals-were considered to be punitive, to the exclusion of purely remedial payments.Rather, even purely remedial payments were considered inherently punitive, and such payments were often imposed as the sole punishment for a crime. 188One of the best examples is an early case in the colony of Rhode Island that concerned an "Indian" who stole liquor out of the cellar of a certain William Cadman. 189The jury found the Indian guilty and the court ordered him to pay exact restitution as his sole punishment. 190The court then went further and stated that if the thief failed to pay restitution, he would be punished with "fifteene stripes." 191In other words, the purely remedial payment was considered punitive enough to the point where it was a sufficient punishment for the theft by itself. 192The threat of whipping was made to compel the payment, not to punish for the theft. 193urther bolstering this conception of restitution as a punitive penalty that is commensurate to a traditional fine is an abstract of court cases in Boston between the years of 1680 and 1698. 194The abstract reveals that, out of 460 convictions issued in those years, "a remedial sanction was the sole form of punishment" in thirty of those cases. 195Thus even purely remedial sanctions were considered inherently punitive to the point that they could serve as the sole punishment for a crime. 196he evidence adduced from the common practice of colonial Americans shows that they affirmatively denied the ancient English law that a fine be payable to the sovereign. 197They also understood restitution, whether it appeared as part of a mixed-goal payment or in its "pure" form, to be inherently punitive. 198These two points are bolstered by the text of the statutes that the colonies passed. 199As such, a "fine" in early America included restitutionary payments in whatever form they may have assumed.

CONCLUSION
Restitution is a substantial and growing part of a modern court's toolbox of remedies. 200In spite of its increasing modern usage, the Supreme Court still has not decided whether restitution payments are governed by the Excessive Fines Clause. 201However, the Court has strongly indicated that the Excessive Fines Clause is best understood when viewed through a historical lens. 202This historical lens reveals that, at common law, American courts have considered restitution a "fine" in its own right.History shows that the Excessive Fines Clause finds its roots in English history and the Magna Carta's amercements provision, which had very narrow and strict requirements-that such payments be punitive and be made out to the king. 203These requirements were later incorporated into the definition of a "fine" in the English Bill of Rights. 204Even though English law influenced the American colonies, the colonies also developed their own separate and unique understanding of a fine. 205First, early Americans understood fines as being properly payable to third parties rather than the sovereign. 206Second, they understood restitution to be inherently punitive. 207Combining these understandings supports the conclusion that restitution was considered a fine in its own right in early America.Under this historical backdrop, restitution should be subject to Excessive Fines Clause analysis and restriction.

2020]
RESTITUTION AND THE EXCESSIVE FINES CLAUSE
20.The Excessive FinesClause is still used and applied in court nowadays, with a recent high-profile Supreme Court case.See Timbs v. Indiana, 139 S. Ct. 682 (2019).
92. See Bill of Rights (1689), 1 W. & M.; Charles Butler, Preface to 1 EDWARD COKE, INSTITUTES OF THE LAWS OF ENGLAND, at xxvi (13th ed.1787).Coke's work is also known as Commentary Upon Littleton.Id. 93.See JOHN H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 165 (1979) (discussing the influence of Coke and his Institutes).
Thus traditional English history paints a very restrictive picture of what constituted a "fine" and what it required.104However,Englishhistory is not the only, or even the 94. 4 BLACKSTONE, supra note 89 at *379.95.Compare id., with COKE, supra note 81, at *126b (showing similar conceptualizations of "fine").96.See Massey, supra note 74, at 1243 ("[T]he lineage of the excessive fines clause is so obviously and directly traceable to the 1689 English Declaration of Rights.").See Colgan, supra note 33, at 24-32 (discussing how this limit removes a huge array of economic sanctions from excessive-fines restriction).100.COKE, supra note 81, at *126b; see Massey, supra note 74, at 1259, 1264.Some scholars have even stated that the disappearance of the amercement led to the development of "other devices [that] assumed [the amercement's] functions," including the fine, "as a means by which to punish crimes."Massey, supra note 74, at The Supreme Court has essentially restricted its historical analysis of the Excessive Fines Clause to English understandings and American perspectives on those understandings rather than delving deeply into early American practices.See e.g., Browning-Ferris Indus.v. Kelco Disposal, Inc., 492 U.S. 257, 268-73 (1989) (demonstrating a strong focus on English history); United States v. Bajakajian, 524 U.S. 321, 335-36 (1998) (mentioning American history only in passing).
The initial imposition of the fine was threefold the value of the stolen property.The statute goes on to refer to the payment as "restitution" and then a few words later, refers to it again as "threefold damages."Id.147.1702 Conn.Pub.Acts 11. 148.1748 Va.Acts 356 (1752 compilation).