It was neither surprising nor inappropriate when the Pennsylvania legislature adopted new legislation last year aimed at stopping hazing. The facts around the death of Timothy Piazza were particularly horrific. His death occurred during an epidemic of hazing tragedies. His parents and others became advocates for, among other things, stronger penalties for those who are found guilty of hazing.

The Timothy Piazza Anti–Hazing Law¹ established two levels of the crime of hazing which could be applied against individual wrongdoers. Hazing is a misdemeanor if it only “creates a reasonable probability of bodily injury to a minor or student.” If the hazing results in “serious bodily injury or death,” it becomes a felony. The law also defines organizational hazing and provides penalties for an organization that “intentionally, knowingly, or recklessly promotes hazing or aggravated hazing.”

Upon its adoption, the law was called a model for consideration by other states. However in light of a recent decision by the Supreme Court of the United States, the constitutionality of one portion of the Pennsylvania law has been called into question.

On February 20, 2019, a unanimous Supreme Court, in a decision authored by Justice Ruth Bader Ginsberg, declared that the Eighth Amendment to the Constitution, which prohibits the imposition of “excessive fines,” applies to the states, and that the prohibition applies to the forfeiture of property used in a crime.

In Timbs v. Indiana,² Timbs pled guilty to and was sentenced to one year of home detention and five years of probation for “dealing in a controlled substance and conspiracy to commit theft.” Timbs was also fined and ordered to pay costs totaling $1,203. At the time of his arrest, the police had seized a Land Rover SUV valued at approximately $42,000 that Timbs had purchased with funds from an insurance policy from his father’s death. The maximum fines the law allowed for the crimes Timbs had pled guilty to totaled $10,000. Nevertheless, the state of Indiana seized Timbs vehicle worth more than four times that amount.

The Pennsylvania Anti–Hazing law contains a provision that provides, upon conviction of an individual defendant for aggravated hazing, or an organization for organizational hazing, the court may “direct the defendant to forfeit property which was involved in the violation.”³ Numerous media outlets have suggested that this provision might allow a court to order a fraternity house to be forfeited to the state, just as Indiana sought the forfeiture of Timbs’ Land Rover.

The Supreme Court’s decision notes that there is nothing particularly new about the prohibition of excessive fines, stating “The Excessive Fines Clause traces its venerable linage back to at least 1215” in the Magna Carta. The Court further observed that Blackstone’s Commentaries on the Laws of England in 1769 also criticized excessive fines.

Justice Ginsberg pointed out abuses of the Excessive Finds Clause continued nonetheless:

Following the Civil War Southern States enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy. Among these laws’ provisions were draconian fines for violating prescriptions on “vagrancy” and other dubious offenses.

In rejecting the seizure of Timbs’ Land Rover, the Court makes clear why such an excessive fine is unconstitutional:

For good reason, the protection against excessive fines has been a constant shield throughout Anglo–American history. Exorbitant tolls undermine other constitutional liberties.

The forfeiture provision in the Pennsylvania hazing law was problematic from the outset. When members engage in hazing in a fraternity house—which, in addition to being a crime, typically violates the rules of the chapter, the inter/national organization, and frequently the terms of the lease with the house corporation—their misconduct does not establish wrongdoing by the house corporation, the inter/national fraternity or sorority, or, generally speaking, the chapter. Criminal conviction of any of those entities is extremely rare and almost unheard of. Thus, the application of the forfeiture clause was going to be very difficult.

However, as written, there could be an attempt to apply the forfeiture provision even if the underlying hazing was only misdemeanor hazing. Certainly that is a crime, but not one that resulted in a serious injury or harm. Yet, theoretically, the house owner could under those circumstances be found guilty of organizational hazing as defined by the law and have the house seized. Fraternity houses can be valued into the millions of dollars while the maximum fine for organizational hazing is either $5,000 or $15,000, depending on if the underlying criminal conduct was misdemeanor or felony level hazing. Assume the house is worth a million dollars and the maximum fine was $15,000. The value of the house is more than 66 times greater than the fine. In Timbs, the court found a forfeiture worth just 4 times more than the maximum fine to be unconstitutionally excessive.

There appears to be little doubt that the forfeiture provision in the Pennsylvania law is constitutionally defective.

1. Timothy J. Piazza Anti–Hazing Law, 18 Pa. Cons. Stat. §§ 2801–2811 (2018). 2. Timbs v. Indiana, No. 17–1091, 2019 WL 691578 (Feb. 20, 2019).
3. 18 Pa. Cons. Stat. §2807 (2018).