Judges may determine that a criminal forfeiture violates the Eight Amendment's excessive fines clause by considering whether it deprives the defendant of the future ability to earn a living.

United States v. Voloski, 2016BL 43826, 2d Cir., No. 14-4176-cr, 2/17/16

    The Second Circuit ruled that judges may consider that a criminal forfeiture is too harsh by determining whether it would deprive the defendant of the future ability to earn a living.

    In United States v. Bajakajian, 524 U.S. 321 (1998), the U.S. Supreme Court ruled that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the defendant's offense." They gave four factors to make this determination:

• the essence of the crime and its connection to other criminal activity;
• whether the defendant is in the class of persons at whom the statute was principally aimed;
• the maximum sentence and fine that could have been imposed; and
• the nature of the harm caused by the conduct.

    Many courts (including the Eleventh and Ninth Circuits) have taken a narrow approach, essentially that the above list is exhaustive, and have ruled that excessiveness is determined by the character of the offense, not the offender. The Second Circuit concluded that there is an additional factor, that

• "a fine should not be so oppressive as to deprive a wrongdoer of his livelihood."

    The court indicated that this is not inconsistent with the Bajakajian decision, because the excessive fines clause comes from English constitutional tradition, which includes protections against livelihood deprivations. In this case, the court turned down Viloski's claim, because he had presented no evidence that his forfeiture would prevent him from earning a living once he was out of prison.

http://www.bloomberglaw.com/public/document/United_States_v_Viloski_No_144176cr_2016_BL_43826_2d_Cir_Feb_17_2