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Montana Supreme Court Holds Automatic 35% Drug Fine Facially Unconstitutional

by Dale Chappell

The Supreme Court of Montana held that the state’s automatic and mandatory fine of 35 percent of the market value of the drugs in a drug-offense conviction is facially unconstitutional, because it doesn’t allow a court to consider the nature of the crime, the defendant’s ability to pay the fine, or the burden the fine would impose on the defendant.

The case came before the Court after Ber Lee Yang was convicted of possessing 144 pounds of marijuana found in a rental car in which she was riding. She pleaded guilty and was given a five-year suspended sentence. Yang did not appeal that sentence.

But Yang did appeal the $75,000.00 fine imposed with that sentence. By statute, the district court had no choice but to impose the fine. MCA § 45-9130(1) provides: “[T]he court shall fine each person found to have possessed or stored dangerous drugs 35% of the market value of the drugs as determined by the court.”

The district court heard from both sides and decided upon a market value for the marijuana at $216,000.00, which served as the basis for calculating the fine imposed on Yang. But the court never considered whether Yang even had the ability to pay the fine mandated under the law, and it wasn’t required (nor was it even authorized) to do so since the statute specifically states “the court shall fine....” The word ‘shall’ precludes any discretion by the judge to consider Yang’s ability to pay.

Before the Supreme Court, Yang raised for the first time that the mandatory, automatic fine is facially unconstitutional. She argued that the statute is unconstitutional in all instances, not just her case, because it requires a sentencing court to impose the fine without considering a person’s ability to pay it.

To win her case, Yang was required to prove beyond a reasonable doubt that the statute is unconstitutional. She could have done this by either showing that no set of circumstances exists under which the statute would be valid or that the statute lacks a plainly legislative sweep.

The U.S. Constitution’s Eighth Amendment provides that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Montana’s Constitution, article II, § 22, contains a similar prohibition against excessive fines.

Applying the Eighth Amendment to fines, the U.S. Supreme Court has held that the amount of the fine “must bear some relation to the gravity of the offense that it is designed to punish.” United States v. Bajakajian, 524 U.S. 321 (1998). In Bajakajian, the Court ruled that sentencing courts “must compare the amount of the [fine] to the gravity of the offense.”

Montana has a statute, § 46-18-231(3), titled “Fines in felony and misdemeanor cases,” that does require this type of analysis. It provides that “in determining the amount and method of payment, the sentencing judge shall take into account the nature of the crime committed, the financial resources of the offender, and the nature of the burden that payment of the fine will impose.”

Assessing Yang’s fine under § 46-18-231(3) would have satisfied the Eighth Amendment. But § 45-9-130(1) clearly conflicts with that. Had the court been able to consider Yang’s ability to pay, it would have seen that she had no resources to pay the fine: she was on SSI, receiving $720 a month, and also on food stamps. In fact, the district court declared her indigent for the criminal proceedings and appointed her a lawyer free of charge.

Yang also was a first-time offender; the marijuana found in the car was her ex-husband’s who was driving the car. He also was convicted separately and fined just $4,000.00, by contrast.

Thus, the Court held that “§ 45-9-130(1), MCA, is facially unconstitutional to the extent it requires a sentencing judge to impose a mandatory fine without ever permitting the judge to consider whether the fine is excessive.” And whether a person can afford the fine in some cases does not mean the statute is not unconstitutional in all cases, the Court noted. The constitutional question was whether the statute’s language to ignore a person’s ability to pay violates the Eighth Amendment. It did, the Court concluded, rendering it unconstitutional in all cases.

Accordingly, the Court remanded to the district court to assess whether Yang has the ability to pay the fine and other court costs. See: State v. Yang, 452 P.3d 897 (Mont. 2019). 

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