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Today, about 160,000 people live behind the bars of a federal prison. That is roughly the population of Alexandria, Virginia. Starting from the premise that the federal system's contribution to mass incarceration should be curbed and recognizing that broad legislative reform seems unlikely, this Article considers the federal judiciary's potential role in sentencing reform. Bottom-up sentencing reform consists of federal trial judges exercising their decisional authority in individual cases to engage with the fundamental premises and assumptions that underlie traditional sentencing decisions, categorically rejecting them when appropriate. This approach to reform is available under current law. In fact, a few prominent examples of this type of reform already exist. This Article proposes expanding those existing models and concludes that the benefits of more ambitious judge-led reform are not offset by potential critiques. In the absence of top-down reform, federal trial judges should use their discretion and fact-finding power to reform federal sentencing., TABLE OF CONTENTS INTRODUCTION 787 I. BOTTOM-UP SENTENCING REFORM 789 A. Defining the Concept of Bottom-Up Sentencing Reform 789 1. Implemented (Not Advocated) Through Decision-Making 790 2. Based on Categorical [...]

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out. Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy. What surprisingly few scholars have addressed, however, is who bears the brunt. This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call 'imputed liability murder.' An analysis of ten years of murder prosecutions in the state of Minnesota reveals that imputed liability murder is anything but a fringe subtype of homicide: an astounding 70% of those charged with murder during this period were charged with felony murder, accomplice liability murder, or both. The study also shows that nearly 60% of these defendants were Black, a level of racial disproportionality that is not just intrinsically extreme; it is comparatively greater than levels of disproportionality for other types of murder. The question is, why? The answer lies in part in the structural and social psychological dynamics of imputed liability murder prosecutions themselves, we claim. By reducing prosecutors' burden to prove the most salient legal indicia of a defendant's culpability--mens rea, actus reus, or both--and allowing prosecutors to cast a wide and undifferentiated net around almost any homicide, the felony murder and accomplice liability murder doctrines invite prosecutors to base normative charging decisions on subjective, extra-legal proxies, like 'dangerousness' and 'group criminality.' Multiple studies have shown that decision-makers are more likely to attribute these proxies to Black defendants and, in turn, treat them more punitively. Compounding these dynamics is the racial stereotypicality of the crimes themselves. A separate body of research indicates that felony murder and accomplice liability murder have become so cognitively synonymous with Black defendants that simply shoring up the doctrines' structural laxity may not be enough to mitigate their disproportionate enforcement. As states across the country grapple with reforming their felony murder and accomplice liability murder laws, this Article contributes to the ongoing debate about the legitimacy of both doctrines. It also raises critical questions about the racialized enforcement of not just these doctrines but of any doctrine that invites the State to impute criminal liability., Introduction 677 I. Imputed Liability Murder 685 A. The Felony Murder Doctrine 685 1. Imputed Thoughts and Moral Exceptionalism 685 2. Rapid Proliferation and Unparalleled Punishment 691 B. The Accomplice [...]

Shortly after the Bivens remedy was born, the Federal Tort Claims Act nearly killed it. In Carlson v. Green, the United States argued that an implied constitutional remedy was no longer necessary because Congress had amended the FTCA to cover intentional torts. The Supreme Court disagreed, and Bivens survived. Today, Bivens is alive but showing its age. The Supreme Court has repudiated its rationale and refused to extend it to any new rights or fact patterns. Scholars fear that there is no longer a remedy for many of the constitutional violations of federal officers. But perhaps these concerns are overstated: As the United States argued in Carlson, the FTCA has the potential to serve as a constitutional remedy. This Note assesses just how great that potential is. First, it discusses the doctrinal viability of using the FTCA as a constitutional remedy. As it turns out, a growing circuit split over the FTCA's discretionary function exception now threatens the FTCA's ability to serve as a constitutional remedy just when it is most needed. After considering that threat, this Note evaluates the FTCA's effectiveness as a constitutional remedy. It considers the kinds of constitutional violations that the FTCA can redress and the defenses available to the United States. Finally, this Note examines the theoretical implications of relying on state tort law to vindicate federal constitutional rights., Table of Contents Introduction I. A Brief History of Federal Constitutional Accountability A. The Era of Officer Suits B. The Enactment of the FTCA C. The Expansion of Remedies D. [...]

Since the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States' preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting statutes seeking to override state sovereign immunity. In reviewing these acts, the Court established that Congress may abrogate immunity when exercising its powers to enforce the Fourteenth Amendment, but not when exercising its Article I powers. This distinction is consistent with the original public meaning of the constitutional text understood in historical context. Recently, in a surprising turnabout, the Court abandoned this established paradigm by finding that the States agreed to an implied 'structural waiver' of their sovereign immunity in the 'plan of the Convention' whenever such immunity would 'thwart' or 'frustrate' the purpose underlying a congressional power that is 'complete in itself.' The Court's new purposive approach to state sovereign immunity is incompatible with the Constitution because it gives courts open-ended discretion to alter the federal-state balance established by the instrument. As Alexander Hamilton explained, because the Constitution 'aims only at a partial union or consolidation,' 'the whole tenor of the instrument' requires adherence to 'the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor.' Under this rule, the 'plan of the Convention'--properly understood--divested the States of their sovereign rights only when it did so clearly and expressly or by unavoidable implication. By relying on a strongly purposive methodology to find implied structural waivers of state sovereign immunity, the Court's new approach disregards this fundamental rule and thus the Constitution itself., TABLE OF CONTENTS INTRODUCTION 488 I. ALIENATING SOVEREIGN RIGHTS AT THE FOUNDING 494 A. The Background Rules 495 1. General Rules of Interpretation 498 2. Rules for the Adjustment of [...]

THEORISTS WHO DEBATE whether private law should remain truly private rarely consider the possibility of a disruptive collision between private law and regulation that would force the former to engage with public policy concerns. This article shows an example of such a collision, which was caused by Parliament's choice to criminalize the act of agreeing to receive interest at more than 60% per year. Rather than voiding the contracts of sophisticated parties that ran afoul of the prohibition, Canadian common law courts adapted the doctrine of illegality and rules on severance rapidly to allow them to be upheld in part: first, the courts severed the obligation to pay any interest on the loan; next, they used blue-pencil severance to reduce the amount of interest owed; and lastly, they created a new remedy, 'notional severance,' to craft a new contract for the parties, effectively making contract law directive rather than facilitative. In the end, notional severance was interpreted restrictively as only allowing lenders to recoup interest at exactly 60% per year. This paper argues that these collective doctrinal changes were haphazard, and compares them to the ways in which the Quebec civil law courts responded to the new criminal provision. It also suggests that theories which stress the resemblance and proximity of private law with regulation are best suited to understand this line of jurisprudence, through which judges made the contract law directive to assert a competing vision of freedom of contract, rather than deferring to Parliament's view. LES THEORICIENS ET theoriciennes qui debatent de la possibilite de donner au droit prive un caractere plus << public >> tiennent rarement compte du fait qu'une collision entre le droit prive et la reglementation pourrait forcer le droit prive a se prononcer sur des questions de politique publique. Cet article presente un exemple d'une telle collision, provoquee par la criminalisation par le Parlement canadien de l'acte de percevoir des interets a un taux superieur a 60 % par an. Plutot que d'annuler les contrats des parties averties qui allaient a l'encontre de cette interdiction, les tribunaux canadiens de common law ont rapidement adapte la doctrine de l'illegalite et les regles sur la divisibilite pour les maintenir en partie: tout d'abord, les tribunaux ont supprime l'obligation de payer tout interet sur le pret; ensuite, ils ont utilise la divisibilite au moyen du << trait au crayon bleu >> pour reduire le montant des interets dus; et enfin, ils ont cree un nouveau recours, celui de la << divisibilite fictive >>, pour proposer un nouveau contrat pour les parties, donnant ainsi au droit des contrats un role directeur plutot que facilitateur. En fin de compte, il fut decide que la << divisibilite fictive >> permet seulement d'imposer un taux d'interet d'exactement 60 % par an. Cet article soutient que ces changements relatifs a la doctrine etaient incoherents et les compare a la facon dont les tribunaux de droit civil du Quebec ont reagi a la nouvelle disposition du Code criminel. Il suggere egalement que les theories qui mettent l'accent sur la ressemblance et la proximite entre le droit prive et la reglementation sont les mieux placees pour comprendre cette jurisprudence, par laquelle les juges ont mis de l'avant une autre vision de la liberte contractuelle, plutot que de se referer a celle du Parlement., CONTENTS Mixing Oil and Water? Redrawing the Limits of Contract Freedom After the Criminalization of Usury Catherine Le Guerrier I. Introduction 15 II. The Criminal Prohibition on Usury 18 III. [...]

The defining feature of a 'common law statute' is that it resists standard methods of statutory interpretation. The category includes such important federal statutes as the Sherman Act, [section] 1983, and the Labor Management Relations Act, among others. Despite the manifest significance of common law statutes, existing caselaw and legal scholarship lack a minimally defensible account of how courts should decide cases arising under them. This Article supplies such an account. It argues that judges should decide cases arising under common law statutes by applying rules representing a consensus among American courts today--i.e., rules that jurisdictions generally have in common. To determine, for example, whether a state officer is entitled to immunity under [section] 1983, a court should ask whether American courts generally extend immunity to officials accused of tortious conduct in similar circumstances. Existing caselaw and legal scholarship provide two rivals to this proposal. According to one rival, common law statutes constitute delegations of substantially unrestrained lawmaking power to courts. They thus empower judges to create new legal rules in a policy-driven manner. According to the other rival, common law statutes incorporate the common law rules that prevailed at the time of their enactment. Judges should therefore decide cases by applying historical common law rules. This Article's proposal is superior to its rivals for several reasons. It represents a more conventional and more sensible understanding of the relationship between courts and unwritten law and thus more likely reflects Congress's intent in enacting each common law statute. It strikes a better balance between the law's needs for stability and flexibility. And it's more responsive to democratic preferences. After anticipating several objections, the Article concludes by illustrating some of the model's implications for two important common law statutes--[section] 1983 and the Sherman Act., Introduction I. Three Models of Common Law Statutes A. The Delegation Model B. The Incorporation Model C. The Consensus Model II. The Case for the Consensus Model A. Congressional Intent [...]

Defendants should not be punished more than they deserve. Sentencing scholars describe this precept against undeserved punishment as a consensus norm in American law and culture. Yet America faces a plague of mass incarceration, and many sanctions seem clearly undeserved, often far exceeding an offender's culpability or the seriousness of an offense. How can a society committed to desert as a limitation on legitimate sanctions allow such undeserved punishments? Critics argue increasingly that our focus on what offenders deserve is itself part of the problem. They claim that the notion of desert is too amorphous, malleable, and arbitrary to limit sentences, and instead operates as a moral license for excess. To avoid overpunishment, they urge us to pay less attention to desert. The problem, however, is not too much attention to desert. The real problem is too little attention to desert as a constraint. Sentencing statutes do not require an explicit determination of the limits of desert. Most regimes instruct judges to select sentences based on both desert and utility as if they were commensurate concerns. This tempts judges to exaggerate or ignore the limits of desert when greater severity would advance utilitarian ends, such as incapacitating the defendant or deterring others. A sentencer's perceptions of what is good for society as a whole can lead to sentences of virtually unchecked brutality. Remarkably, the rich existing literature on desert in sentencing has overlooked how our sentencing procedures thus invite sentencing excess. To prevent undeserved punishment, we must reform the sentencing process. Sentencing should begin with a cap, a specification of the maximum set by desert, prior to any inquiry into possible future benefits that a penalty might achieve. No final sentence should exceed that preset upper limit. Although existing statutory minimum penalties might still require undeservedly severe punishments, this proposed reform would expose their injustice and bolster the case for their repeal., Introduction I. The Limiting Principle that Punishment Must Be Deserved A. Criminal Law Is Premised on Desert B. Sentencing Law Emphasizes Desert as a Key Concern C. Constitutional Review of [...]

The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95% of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors--who control plea terms--as the deciders of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains. After reviewing the empirical literature on sentence variation, examining state and federal plea-bargaining rules and doctrines, and conducting some empirical analysis of our own, we conclude that neither of the competing narratives is correct. Sentencing in the United States has become a dynamic process with substantial contributions from multiple actors, not a static event controlled by any single actor. Zooming in on judges' contributions, we find that, contrary to much modern commentary, judges can (and do) influence plea-bargained sentences in even the most restrictive jurisdictions. Yet this judicial imprint is often obscured by formal rules that purport to exclude judges from plea negotiations. In addition, we identify a few scenarios where judges are prevented from influencing plea bargains and thus lose their traditional role as the ultimate arbiter of an individual's sentence. In response to these findings, we propose a reform that would make the already prevalent judicial influence over the substance of plea agreements more transparent. In addition, we suggest a legal change that would eliminate scenarios where judges are legally authorized but practically unable to reject (unusually harsh) plea deals., INTRODUCTION 180 I. THE LACK OF CONSENSUS REGARDING WHO SENTENCES. 184 A. The Traditional Narrative: Judge as Sentencer 185 B. The Modern Narrative: Prosecutor as Sentencer 192 C. Implications of [...]

Introduction 548 I. Judicial Elections and Stare Decisis 554 A. Judicial Elections 554 1. History of State Judicial Elections 554 2. Different Types of Judicial Election Systems 555 3. Consequences [...]

In New York State Rifle & Pistol Ass'n v. Bruen, the Supreme Court held that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. Bruen's novel approach to historical decision-making purported to constrain judicial discretion but instead enabled judicial subjectivity, obfuscation, and unpredictability. Those problems are painfully evident in courts' faltering efforts to apply Bruen to laws regulating 3D-printed guns, assault weapons, large-capacity magazines, obliterated serial numbers, and the possession of guns on subways or by people subject to domestic-violence restraining orders. The Court's recent grant of certiorari in United States v. Rahimi provides a much-needed opportunity for clarification and course correction. Without a more disciplined approach, the future of Second Amendment doctrine is dire, as is that of other areas of constitutional law where such tests take root. This Article begins by explaining Bruen's approach, which we call originalism-by-analogy. It shares some features with standard forms of originalism and traditionalism but also differs in the degree to which it requires judges to reason analogically directly from the historical record rather than, for example, using historical sources to identify the original public meaning of a constitutional provision. The Article then explains and addresses several challenges of originalism-by-analogy by bringing together two bodies of scholarship that have thus far had litde overlap: the voluminous literature on originalism and the generations-old literature on analogical reasoning in law. We distill three broad challenges for post-Bruen Second Amendment law and scholarship and suggest some partial solutions. First, courts applying Bruen must discern workable principles of relevant similarity--the sine qua non of analogical reasoning--to compare historical and modern laws. Second, doctrine must account for the fundamental differences between past and present, in part through careful attention to the level of generality at which the historical inquiry is conducted. Third, the approach must account for courts' institutional limitations in conducting a difficult historicalinquiry. This includes not overreading silences in the record and also recognizing that--precisely because it requires comparison of past and present--Bruen not only licenses regulatory change but preserves an important role for contemporary empirics and legislative deference., ARTICLE CONTENTS INTRODUCTION 102 I. BRUEN'S NOVEL APPROACH TO HISTORICAL ANALOGY 111 A. Bruen's Novel Approach 114 1. The 'Plain-Text' Threshold 115 2. A Stringent Test for Historically Persistent 'General [...]

I. INTRODUCTION Imagine two defendants--both convicted of the same federal crime, but in district courts located in different circuits. In both cases the prosecution admits the same 'prior bad act,' [...]

INTRODUCTION 148 I. BACKGROUND 153 A. A HISTORY OF SOVEREIGN IMMUNITY 153 B. PROBLEMS WITH SOVEREIGN IMMUNITY IN FEDERAL COURTS 156 1. The Failure of Doctrinal Approaches to Adequately Address [...]

INTRODUCTION 118 I. BACKGROUND 122 A. THE FELONY MURDER RULE 122 1. The Justification for the Felony Murder Rule 123 2. U.S. Supreme Court Jurisprudence on Felony Murder 125 a. [...]

I. INTRODUCTION Who condones time's ability to place such an incessant stranglehold on one's emotions? Well, no one, but it is inevitable: time dictates every facet of life. For example, [...]

INTRODUCTION As public concern about pollution and changing environmental conditions increases, citizen groups are emboldened to bring larger lawsuits against the corporations they consider responsible for environmental harm. Environment Texas [...]

I. WHAT ARE THE BASIC RULES? 1656 A. Content 1656 B. Permissiveness 1659 II. WHY THE BASIC RULES? 1661 A. First Principles 1661 B. Curbing Discretion 1665 C. Surfacing Discretion [...]

Policing demonstrations is difficult, and prosecuting people for public order offences arising from protests may risk closing down some channels for democratic engagement. In the United Kingdom, delicate judgements by police, prosecutors and courts have become still more complex as a result of the domestic application, under the Human Rights Act 1998 (UK), of the rights to freedom of expression and of peaceful assembly under the European Convention on Human Rights. When is it permissible to interfere with those rights in order to protect other interests and rights? When is it necessary to strike a balance between them, and who is responsible for doing so? What are the limits of the responsibilities of the police, prosecutors and judges or juries respectively to make judgements about the appropriate balance, and when may a defendant be allowed to say, in answer to a criminal charge, that criminal legislation should be read and given effect in such a way as to respect the defendant's right to freedom of expression or peaceful assembly so as to entitle the defendant to be acquitted? This article examines developments in policing and prosecutorial practice and in case law responding to those issues., I INTRODUCTION My friend and sometime colleague Tony Smith is a leading expert on the law, policy and practice of policing to maintain public order in England and Wales. (1) [...]

Criminal Law--Crack-Cocaine Sentencing Guidelines Allow Judges to Consider Intervening Changes--Concepcion v. United States, 142 S. Ct. 2389 (2022). Congress created the United States Sentencing Commission under the Comprehensive Crime Control [...]

LE PRESENT ARTICLE analyse le cas de la reclamation en justice grossierement exageree en droit civil a titre d'exception permettant au tribunal d'user du pouvoir discretionnaire qui lui est confere par l'article 1619 du Code civil du Quebec pour deroger au principe de l'octroi de l'indemnite additionnelle. L'auteur analyse les cas repertories a cet effet en jurisprudence afin de determiner les tendances en la matiere et, plus precisement, d'estimer le seuil a partir duquel une evaluation dite optimiste des dommages reclames en vient a verser dans la demesure au point d'etre susceptible de sanction par le tribunal. En reponse a la constatation de l'influence que l'arret Snyder--pourtant rendu en 1995 par la Cour d'appel du Quebec--conserve encore a ce jour sur la determination du seuil d'application de la reclamation dite grossierement exageree, l'auteur soumet qu'une actualisation de ce point de reference s'impose pour tenir compte de l'importance accrue que revet le reglement des differends sous l'egide de l'actuel Code de procedure civile et propose notamment en ce sens un resserrement de la marge de tolerance laissee a la partie demanderesse dans le difficile exercice de l'evaluation de son dommage. THIS ARTICLE ANALYZES the case of the grossly exaggerated claim in civil law as an exception allowing the Court to use its discretionary power under article 1619 of the Civil Code of Quebec to derogate from the principle of granting additional indemnity. The author analyzes the cases identified to that effect in the case law to determine the trends in this area and, more specifically, to estimate the threshold at which a so-called optimistic evaluation of the damages claimed becomes so excessive that it is likely to be sanctioned by the court. In response to the finding that the Snyder decision--which was rendered in 1995 by the Quebec Court of Appeal--still has an influence on the determination of the threshold for the application of the so-called grossly exaggerated claim, the author submits that this reference point must be updated to take into account the increased importance of dispute resolution under the current Code of Civil Procedure and proposes, in particular, that the margin of tolerance left to the plaintiff in the difficult exercise of assessing his damages be narrowed., TABLE DES MATIÈRES Indemnite additionnelle, discretion et demesure: pour une actualisation des parametres de l'exception de la reclamation grossierement exageree Samuel Grondin Introduction 65 I. L'octroi de l'indemnite additionnelle: un [...]

ABSTRACT Myriad obstacles prevent victims of police violence from vindicating civil claims against the officers who have harmed them and the cities which have failed them. Though these plaintiffs face [...]

This article analyses the provisions of the Sexual Violence Legislation Act 2021 that offer witnesses in sexual cases access to pre-recorded cross-examination as an alternative method of giving evidence. The Act is intended to reduce the trauma of sexual violence victims in court whilst preserving the fairness of the trial. The Act prima facie entitles witnesses to access alternative evidence methods, but judges retain a discretion under s 106G to prevent the use of pre-recorded cross-examination. Under s 106G, the judge must do so where the pre-recorded cross-examination presents a real risk to the fairness of the trial. This article evaluates how judges are likely to exercise their discretion under s 106G. I recount the contemporary notion of a fair trial through the lens of the New Zealand Bill of Rights Act 1990 and identify areas of tension between defendants' fair trial rights and witnesses' interests. I assess how the realities of the system render pre-recorded cross-examination workable only at the expense of defendants' fair trial rights. Consequently, judges will almost always be compelled to make orders under s 106G preventing pre-recorded cross-examination. The Act is unfit for its purpose of expanding the availability of alternative evidence for witnesses and improving the justice process for sexual violence complainants., I INTRODUCTION The Sexual Violence Legislation Act 2021 (the Act) is intended to improve access to alternative methods of giving evidence for witnesses in sexual cases. (1) Victims in sexual [...]

The United States has had a dual court system since its founding. One might expect such a pronouncement to refer to the division between state and federal courts, but in the early republic the equally obvious referent would have been to the division between courts of common law and the court of chancery--the distinction, that is, between law and equity. This Essay sketches a history of how the distinction between law and equity was gradually transformed into a doctrine of federalism by the Supreme Court. Congress's earliest legislation jealously guarded federal equity against fusion with common law at either the state or federal levels. The antebellum Supreme Court obligingly adopted a strongly anti-fusion stance and took pains to protect federal equity from experimental state-level reforms. In the midst of Reconstruction, Congress reconfigured the ways federal equity would intermix with state law and legal process. But in the twentieth century, Supreme Court doctrine set aside the well-documented legislative history of Reconstruction statutes in favor of a mythic retelling of the 1790s that reduced equity to a principle of federalism. This judicially invented historical narrative has led to a peculiar asymmetry in practice today, where it has become surprisingly easy for federal courts to equitably restrain the other federal branches but significantly difficult for them to redress even extreme violations of federal rights at the slate and local level., INTRODUCTION 2058 I. EQUITY'S ESSENCES 2060 II. FUSION AND FEDERALISM IN THE ANTEBELLUM REPUBLIC 2064 A. Early Statutes and Anti-Eusion in Congress 2065 B. State Codes and Anti-Eusion at the [...]

Table of Contents Introduction 1766 I. State of Juvenile Sentencing Today 1768 A. Mandatory Minimum Sentences for Juveniles 1768 B. Recent Supreme Court Jurisprudence 1769 C. The Inadequacy of Eighth [...]

Table of Contents INTRODUCTION 322 I. SNAP REMOVAL: FUNCTION, ORIGIN, AND TREATMENT 323 A. Removal Generally 324 B. Snap Removal Functionally 325 C. The Snap Removal Movement 326 D. Scholarly [...]

The Eighth Amendment to the U.S. Constitution bars the imposition of 'excessive fines.' Despite this seemingly straightforward mandate, case law is not harmonious on the meaning of 'excessive' under the Eighth Amendment. Significant questions persist as to whether imposing an economic sanction on a defendant that lacks any ability to pay is incongruous with the Amendment's prohibition on excessive fines. Although the relevance of the 'ability to pay' question to the excessiveness inquiry was acknowledged by the Supreme Court in the 2019 case Timbs v. Indiana, the Court left the resolution of the question for another day. This Article laments the Court's decision to pass on this examination. It does so by analyzing the imposition of special assessment fees on indigent criminal defendants, an aspect of sentencing that has received remarkably little attention from legal scholars and practitioners. The starting point is an overview of the special assessment fee structure and how it compares to other economic sanctions imposed in the criminal legal system. When a defendant is sentenced, no fine is imposed if the judge determines that the defendant lacks the ability to pay any fine. In such circumstances, explicit in the judge's determination is that the defendant is too poor to pay any amount of money. But the current special assessment fee structure requires every individual defendant to pay a $100 special assessment fee for each count of conviction on a federal crime, even if the judge has already determined that the defendant is too poor to pay an accompanying fine. Because many Americans cannot relate to the jeopardy of being unable to pay a $100 fee, it is taken for granted that individual defendants who cannot pay any amount of money should somehow be able to pay this amount. This thinking not only defies logic, it also ignores the reality that for people wrapped in the iron grip of poverty, even 'small' legal financial obligations ('LFOs') can have devastating consequences that trickle down to families and communities. The current special assessment scheme is also defective because it overlooks the administrative burdens of overseeing LFOs that will not be collected. With the consequences of these deficiencies in mind, this Article suggests a straightforward but overlooked reform to the special assessment scheme. It argues that a sentencing court should be permitted to, and ought to, waive the imposition of a special assessment fee if the court has already determined that a defendant is unable to pay any amount of money. At best, when a defendant's financial situation forecloses any payment, the status quo special assessment scheme is an administrative inefficiency because of the costs of overseeing LFOs. And at worst, it may violate the defendant's Eighth Amendment protections against excessive fines., INTRODUCTION 1479 I. THE SUPREME COURT'S EXCESSIVE FINES JURISPRUDENCE 1485 A. The Excessive Fines Clause and the Meaning of 'Fines' 1485 B. Bajakajian and the Meaning of Constitutionally 'Excessive' Fines [...]