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Re: clarencebeaks21 post# 744804

Monday, 01/23/2023 3:29:26 PM

Monday, January 23, 2023 3:29:26 PM

Post# of 751570
Clarence, Justice Gorsuch, in his written opinion dissent from the denial of a petition for a Writ of certiorari said this today in relation to a 8th Amendment right violation: Cite as: 598 U. S. ____ (2023) 1
GORSUCH, J., dissenting
No. 22–177. Decided January 23, 2023
The petition for a writ of certiorari is denied.
JUSTICE GORSUCH, dissenting from the denial of certio-

In the 1930s, Monica Toth’s father fled his home in Ger-
many to escape the swell of violent antisemitism. Eventu-
ally, he found his way to South America, where he made a
new life with his young family and went on to enjoy a suc-
cessful business career in Buenos Aires. But perhaps owing
to his early formative experiences, Ms. Toth’s father always
kept a reserve of funds in a Swiss bank account. Shortly
before his death, he gave Ms. Toth several million dollars,
also in a Swiss bank account. He encouraged his daughter
to keep the money there—just in case.

Ms. Toth, now in her eighties and an American citizen,
followed her father’s advice. For several years, however,
she failed to report her foreign bank account to the federal
government as the law requires. 31 U. S. C. §5314. Ms.
Toth insists this was an innocent mistake. She says she did
not know of the reporting obligation. And when she learned
of it, she says, she completed the necessary disclosures.

The Internal Revenue Service saw things differently.
Pursuant to §5321, the agency charged Ms. Toth with will-
fully violating §5314’s reporting requirement and assessed
a civil penalty of $2.1 million—half of the balance of Ms.
Toth’s account—plus another $1 million in late fees and in-
terest. Initially, Ms. Toth sought to represent herself in
proceedings challenging the IRS’s assessment, but that did
not go well. Later, Ms. Toth engaged counsel who argued that the IRS’s assessment violated the Excessive Fines
Clause of the Eighth Amendment. But the First Circuit re-
jected this line of defense. It held that the Constitution’s
protection against excessive fines did not apply to Ms.
Toth’s case because the IRS’s assessment against her was
“not tied to any criminal sanction” and served a “remedial”
purpose. 33 F. 4th 1, 16, 17–19 (2022).

This decision is difficult to reconcile with our precedents.
We have recognized that the Excessive Fines Clause “traces
its venerable lineage” to Magna Carta and the English Bill
of Rights. Timbs v. Indiana, 586 U. S. ___, ___–___ (2019)
(slip op., at 4–5). We have held that “[p]rotection against
excessive punitive economic sanctions” is “‘fundamental’”
and “‘deeply rooted in this Nation’s history and tradition.’”
Id., at ___ (slip op., at 7). And all that would mean little if
the government could evade constitutional scrutiny under
the Clause’s terms by the simple expedient of fixing a “civil”
label on the fines it imposes and declining to pursue any
related “criminal” case. Far from permitting that kind of
maneuver, this Court has warned the Constitution guards
against it. See Austin v. United States, 509 U. S. 602, 610
(1993) (“[T]he question is not, as the United States would
have it, whether [a monetary penalty] is civil or criminal,
but rather whether it is punishment.”); see also Giaccio v.
Pennsylvania, 382 U. S. 399, 402 (1966); Sessions v. Di-
maya, 584 U. S. ___, ___ (2018) (GORSUCH, J., concurring in
part and concurring in judgment) (slip op., at 10).

Nor is a statutory penalty beneath constitutional notice
because it serves a “remedial” purpose. Really, the notion
of “nonpunitive penalties” is “a contradiction in terms.”
United States v. Bajakajian, 524 U. S. 321, 346 (1998) (Ken-
nedy, J., dissenting). Just take this case. The government
did not calculate Ms. Toth’s penalty with reference to any
losses or expenses it had incurred. The government im-
posed its penalty to punish her and, in that way, deter oth-
ers. Even supposing, however, that Ms. Toth’s penalty bore both punitive and compensatory purposes, it would still
merit constitutional review. Under our cases a fine that
serves even “in part to punish” is subject to analysis under
the Excessive Fines Clause. Austin, 509 U. S., at 610 (em-
phasis added).

Ms. Toth and her amici identify still more reasons to
worry about the First Circuit’s decision. They say it clashes
with the approach many other courts have taken in similar
cases. Pet. for Cert. 18–25 (collecting cases). They observe
that it incentivizes governments to impose exorbitant civil
penalties as a means of raising revenue. Id., at 25–30. And
they contend that it is difficult to square with the original
understanding of the Eighth Amendment. Brief for Profes-
sor Beth A. Colgan as Amicus Curiae on Pet. for Cert. 4–13.
For all these reasons, taking up this case would have been
well worth our time. As things stand, one can only hope
that other lower courts will not repeat its mistakes.

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