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SJC-11906

   PUBLIC EMPLOYEE RETIREMENT ADMINISTRATION COMMISSION    vs.
                     EDWARD A. BETTENCOURT.



            Suffolk.   October 6, 2015. - April 6, 2016.

  Present (Sitting at New Bedford): Gants, C.J., Spina, Cordy,
               Botsford, Duffly, Lenk, & Hines, JJ.


Public Employee Retirement Administration Commission.
     Retirement. Public Employment, Retirement benefits,
     Forfeiture of retirement benefits. Constitutional Law,
     Excessive fines clause.



     Civil action commenced in the Superior Court Department on
December 19, 2012.

     The case was heard by Garry V. Inge, J., on motions for
judgment on the pleadings.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Paul T. Hynes (Michael R. Keefe with him) for the
defendant.
     Peter Sacks, State Solicitor (Judith A. Corrigan, Special
Assistant Attorney General, with him) for the plaintiff.
     Ian O. Russell & Patrick N. Bryant for Massachusetts
Coalition of Police, amicus curiae, submitted a brief.
                                                                      2


     BOTSFORD, J.   The Commonwealth's law governing public

employee retirement systems and pensions requires that a public

employee forfeit the retirement and health insurance benefits

(retirement allowance or pension) to which the employee would be

entitled upon conviction of a crime "involving violation of the

laws applicable to [the employee's] office or position."      G. L.

c. 32, § 15 (4) (§ 15 [4]).1   We consider here whether this

mandatory forfeiture of a public employee's retirement allowance

qualifies as a "fine" under the excessive fines clause of the

Eighth Amendment to the United States Constitution.   We conclude

that it does and that, in the circumstances of this case, the

mandatory forfeiture of the public employee's retirement

allowance is "excessive."2

     Background.3   Edward A. Bettencourt was first appointed as a

police officer in the city of Peabody in October, 1980, and

became a member of the Peabody retirement system on November 7,



     1
       The statutory forfeiture provision at issue in this case,
G. L. c. 32, § 15 (4) (§ 15 [4]), by its terms applies solely to
"member[s]" of a public employee retirement system. In this
opinion, we generally use the term "public employee" rather than
"member;" every member is or was a public employee.
     2
       We acknowledge the amicus brief submitted by the
Massachusetts Coalition of Police.
     3
       The facts are taken from the record on appeal, and are
generally not in dispute, except that the parties disagree about
the value of the defendant Edward A. Bettencourt's retirement
allowance.
                                                                      3


1982.4    Bettencourt was promoted to the rank of sergeant around

1990, and promoted again to serve as a lieutenant in 2003.       In

the early morning hours of December 25, 2004, Bettencourt was on

duty as a watch commander, and he knowingly accessed, through

the Internet and without permission, the Massachusetts human

resources division (HRD) computer system, and specifically the

HRD Internet site containing individual applicant record

information.    Gaining the unauthorized access, he viewed the

civil service promotional examination scores of twenty-one other

police officers, including four officers who were his direct

competitors for a promotion to the position of captain in the

police department.    In order to view the examination scores of

these other officers, Bettencourt created a distinct user

account for each officer, using the Social Security numbers and

birth dates of the officers.

     On October 26, 2006, Bettencourt was indicted for

unauthorized access to a computer system, in violation of G. L.

c. 266, § 120F; the indictment contained twenty-one separate

counts.    On April 4, 2008, at the conclusion of a jury-waived

trial before a judge in the Superior Court (trial judge),




     4
       The Peabody retirement system is a public pension system
that operates pursuant to G. L. c. 32.
                                                                    4


Bettencourt was found guilty on all counts.5   Bettencourt filed

an application for voluntary superannuation retirement with the

Peabody retirement board (board) on the same day he was found

guilty.   As of that date, he had served as a Peabody police

officer for over twenty-seven years and had been a member of the

Peabody retirement system for over twenty-five years.   On

May 23, 2008, after learning of Bettencourt's convictions, the

board held an evidentiary hearing to determine whether, because

of these convictions, Bettencourt remained eligible for his

retirement allowance.   A majority of the board concluded that

none of the convictions was a "violation of the laws applicable

to his office or position" under § 15 (4), and, thus, his

application for superannuation retirement was to be processed,

subject to the approval of the public employee retirement

administration commission (PERAC).   On September 10, 2008, PERAC

denied Bettencourt's retirement application because it concluded

that Bettencourt's criminal convictions did relate to his office

or position, and therefore, under § 15 (4), he was not entitled

to receive any retirement allowance.


     5
       On April 18, 2008, Bettencourt was sentenced to a fine of
$500 on each of the twenty-one counts of the indictment, for a
total of $10,500. In imposing her sentence, the trial judge
rejected the Commonwealth's sentencing recommendation of a
probationary sentence of eighteen months and one hundred hours
of community service, in addition to a fine of $500 per count;
she also rejected Bettencourt's recommendation of a period of
unsupervised probation and no fine.
                                                                     5


    Bettencourt sought certiorari review of PERAC's decision in

the Peabody Division of the District Court Department, arguing

that his convictions did not trigger the forfeiture mandated by

§ 15 (4) because they were not related to his office or

position, and, alternatively, that the forfeiture of his pension

would constitute an "excessive fine" in violation of the Eighth

Amendment.    A judge in the District Court concluded that

Bettencourt's convictions were not sufficiently related to his

office or position as to trigger forfeiture under § 15 (4), and,

therefore, the judge did not reach the "excessive fine"

argument.    PERAC sought certiorari review of the judge's

decision in the Superior Court.    A Superior Court judge affirmed

the District Court decision, and PERAC appealed to the Appeals

Court.    In a memorandum and order pursuant to its rule 1:28, the

Appeals Court, concluding that Bettencourt's convictions were

linked directly to his office or position, vacated the judgment

and remanded the case to the District Court for consideration of

Bettencourt's alternative argument that forfeiture of his

pension constituted an excessive fine.    Public Employee

Retirement Admin. Comm'n v. Bettencourt, 81 Mass. App. Ct. 1113

(2012).

    On remand, the District Court judge concluded that

forfeiture of a retirement allowance pursuant to § 15 (4) was a

fine under the Eighth Amendment and that the fine in this case,
                                                                     6


forfeiture of Bettencourt's lifetime retirement allowance, as

compared to the harm suffered by the other officers and the

public, was excessive and violated the Eighth Amendment.     PERAC

again sought certiorari review in the Superior Court.   In an

amended decision dated February 6, 2014, a Superior Court judge

reversed, ruling that forfeiture of an employee's pension rights

under § 15 (4) does not constitute a fine for purposes of the

Eighth Amendment because "the right to a pension is conditioned

on not incurring criminal convictions related to public

service."   Bettencourt filed a timely appeal in the Appeals

Court, and we transferred the case to this court on our own

motion.

    Discussion.    General Laws c. 32, § 15 (4), provides:

         "Forfeiture of pension upon misconduct. -- In no
    event shall any member [of a retirement system] after final
    conviction of a criminal offense involving violation of the
    laws applicable to his office or position, be entitled to
    receive a retirement allowance under the provisions of
    [G. L. c. 32, §§ 1 through 28], inclusive, nor shall any
    beneficiary be entitled to receive any benefits under such
    provisions on account of such member. The said member or
    his beneficiary shall receive, unless otherwise prohibited
    by law, a return of his accumulated total deductions;
    provided, however, that the rate of regular interest for
    the purpose of calculating accumulated total deductions
    shall be zero."

At this juncture, Bettencourt does not challenge the Appeals

Court's conclusion that his convictions under G. L. c. 266,

§ 120F, involved violations of a law "applicable to his office

or position" within the meaning of § 15 (4), and, thus,
                                                                      7


triggered imposition of the section's forfeiture provisions.6

Rather, he focuses solely on his Eighth Amendment claim.7      That

claim has two parts:   (1) the forfeiture of his pension under

§ 15 (4) by its terms qualifies as a fine; and (2) the fine is

excessive.   This court has considered the claim's second part,

excessiveness, in two previous cases, MacLean v. State Bd. of

Retirement, 432 Mass. 339, 347-350 (2000), and Maher v.

Retirement Bd. of Quincy, 452 Mass. 517, 523-525 (2008), cert.

denied, 556 U.S. 1166 (2009).8   We have never addressed the


     6
       Bettencourt has appealed his underlying convictions, and
that appeal is pending in the Appeals Court.
     7
       The Eighth Amendment to the United States Constitution
provides: "Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted"
(emphasis added). The due process clause of the Fourteenth
Amendment to the United States Constitution "makes the Eighth
Amendment's prohibition against excessive fines and cruel and
unusual punishments applicable to the States," Cooper Indus.,
Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 433-434
(2001), and imposes "substantive limits" on the broad discretion
that States exercise in the criminal penalty arena, id. at 433.

     Article 26 of the Massachusetts Declaration of Rights
contains an excessive fines clause: "No magistrate or court of
law, shall demand excessive bail or sureties, impose excessive
fines, or inflict cruel or unusual punishments." However, the
parties have not raised a claim under art. 26 and therefore we
consider solely the Eighth Amendment in this case.
     8
       In both MacLean v. State Bd. of Retirement, 432 Mass. 339
(2000), and Maher v. Retirement Bd. of Quincy, 452 Mass. 517
(2008), cert. denied, 556 U.S. 1166 (2009), this court assumed,
without deciding, that forfeiture of pension benefits pursuant
to § 15 (4) constitutes a fine for purposes of the Eighth
Amendment, and then concluded in each case that the fine was not
excessive and therefore no violation of the excessive fines
                                                                      8


threshold question whether the forfeiture of a public employee's

pension under § 15 (4) is a "fine" under the Eighth Amendment.

We consider that question first.

     1.   Is the forfeiture required by § 15 (4) a fine?   a.

Property requirement.   As it noted in United States v.

Bajakajian, 524 U.S. 321, 327 (1998), the United States Supreme

Court has had "little occasion" to interpret the Eighth

Amendment's excessive fines clause.   In that case, following the

lead of two earlier decisions, the Court explained that "at the

time the Constitution was adopted, 'the word "fine" was

understood to mean a payment to a sovereign as punishment for

some offense.'"   Id. at 327, quoting Browning-Ferris Indus. of

Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265 (1989).9     A

fine may involve the payment of money to the government, but as

Bajakajian makes clear, the forfeiture of property also may




clause had occurred. See MacLean, supra at 346, 347-350; Maher,
supra at 523-525. See also Flaherty v. Justices of the
Haverhill Div. of the Dist. Court Dep't of the Trial Court, 83
Mass. App. Ct. 120, 123-125, cert. denied, 134 S. Ct. 325 (2013)
(adopting same assumption and concluding forfeiture not
excessive).
     9
       In Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal,
Inc., 492 U.S. 257, 265, 275-276 (1989), the United States
Supreme Court concluded that an award of punitive damages in a
civil case between two private parties does not implicate the
excessive fines clause, because the clause applies only when the
required payment is to the government, i.e., the sovereign.
                                                                   9


qualify as a fine.10   Moreover, the Supreme Court has held that

the excessive fines clause does not apply solely to criminal

cases, such as Bajakajian; a civil forfeiture proceeding in

which the government seeks the forfeiture of particular property

on account of its owner's conviction of a crime also implicates

the clause.   See Austin v. United States, 509 U.S. 602, 608-610,

618, 621-622 (1993) (civil proceeding initiated by government

seeking to forfeit auto body shop and mobile home as

instrumentalities of drug offense to which property owner

pleaded guilty; forfeiture sought by government qualified as

fine under Eighth Amendment).   "The Excessive Fines Clause thus

'limits the government's power to extract payments, whether in

cash or in kind, "as punishment for some offense."'. . .

Forfeitures -- payments in kind -- are thus 'fines' if they

constitute punishment for an offense."   Bajakajian, supra at

328, quoting Austin, supra at 609-610.



     10
       United States v. Bajakajian, 524 U.S. 321 (1998),
involved a defendant who had pleaded guilty to failing to report
exported currency in excess of $10,000 in violation of 31 U.S.C.
§ 5316(a)(1)(A). A separate Federal statute required that "a
person convicted of willfully violating this reporting
requirement shall forfeit to the Government 'any property . . .
involved in such offense.'" Bajakajian, supra at 324. Under
this forfeiture statute, 18 U.S.C. § 982(a)(1), the United
States sought forfeiture of the entire $357,144 that Bajakajian
had failed to report. The Supreme Court concluded that
forfeiture of the entire amount constituted an excessive fine in
violation of the Eighth Amendment. Bajakajian, supra at 339-
340.
                                                                  10


     To decide whether the forfeiture of Bettencourt's pension

qualifies as a fine under the Supreme Court's definition, the

first question to be answered is whether the forfeiture operates

to "extract payments" from him -- that is, requires the transfer

of money or some other form of property of Bettencourt's to the

government.   See Hopkins v. Oklahoma Pub. Employees Retirement

Sys., 150 F.3d 1155, 1162 (10th Cir. 1998) (considering

forfeiture of retired State employee's pension as result of

criminal bribery conviction:   "Implicit in [the Supreme Court's]

interpretation of the Excessive Fines Clause is the notion that

it applies only when the payment to the government involves

turning over 'property' of some kind that once belonged to [the

employee]").11

     In response to this first question, Bettencourt contends

that the mandatory forfeiture under § 15 (4) has required him to

transfer or turn over property -- his right to receive his

retirement allowance -- to the Commonwealth.   PERAC, on the

other hand, argues that Bettencourt had no property interest in

the retirement allowance being forfeited.   Rather, in PERAC's

view, Bettencourt, as a member of the Peabody retirement system,

had only a future interest in receiving retirement allowance


     11
       If the forfeiture does require transfer of a property
interest, the second question is whether the forfeiture operates
as a form of punishment related to Bettencourt's convictions.
We address the punishment issue in part 1.b, infra.
                                                                    11


payments, one that was wholly contingent on his not being

convicted of a crime involving misconduct in office, and

"contingent, future interests are not property."

     We do not share PERAC's view.    Under the Commonwealth's

contributory retirement system, the relationship between a

member and the system is contractual.    See G. L. c. 32, § 25

(5).12    However, we previously have noted that in this context,

the term

          "'[c]ontract' (and related terms such as rights,
     benefits, protection) should be understood . . . in a
     special, somewhat relaxed sense. . . . It is not really
     feasible -- nor would it be desirable -- to fit so complex
     and dynamic a set of arrangements as a statutory retirement
     scheme into ordinary contract law which posits as its model
     a joining of the wills of mutually assenting individuals to
     form a specific bargain. . . . When, therefore, the
     characterization 'contract' is used, it is best understood
     as meaning that the retirement scheme has generated
     material expectations on the part of employees and those
     expectations should in substance be respected. Such is the
     content of 'contract.'

            ". . .


     12
          General Laws c. 32, § 25 (5), provides:

          "The provisions of [G. L. c. 32, §§ 1 through 28,]
     inclusive, and of corresponding provisions of earlier laws
     shall be deemed to establish and to have established
     membership in the retirement system as a contractual
     relationship under which members who are or may be retired
     for superannuation are entitled to contractual rights and
     benefits, and no amendments or alterations shall be made
     that will deprive any such member or any group of such
     members of their pension rights or benefits provided for
     thereunder, if such member or members have paid the
     stipulated contributions specified in said sections or
     corresponding provisions of earlier laws."
                                                                   12


          "The contract so 'envisaged [by G. L. c. 32, § 25
     (5),] is under the shelter of the impairment-of-contract
     clause, or, what amounts to much the same thing, the due
     process clause of the Federal Constitution and State
     constitutional provisions cognate to the latter. . . . [A]
     retirement plan establishing a contractual relationship[,]
     . . . whether viewed strictly as contract or as property[,]
     may be constitutionally guarded against impairment"
     (emphasis supplied; footnote omitted).

Opinion of the Justices, 364 Mass. 847, 861, 863 (1973).13   See

Madden v. Contributory Retirement Appeal Bd., 431 Mass. 697, 701

(2000) (under contractual relationship between State retirement

system members and State, "[t]here can be no change to the

system that deprives members of benefits as long as they have

paid the required contributions").

     As Opinion of the Justices and Madden reflect, this court

has long held the view that a public employee who is a member of

a retirement system holds an interest in retirement benefits

that originates in a "contract" and in substance amounts to a

     13
       In Opinion of the Justices, 364 Mass. 847, 862 (1973), we
quoted with approval the following passage from a decision of a
California appellate court, Wisley v. San Diego, 188 Cal. App.
2d 482, 485-486 (1961), and characterized the passage as
describing a contractual relationship similar to that envisaged
by G. L. c. 32, § 25 (5):

          "Where a city charter provides for pensions, it is
     well settled that the pension rights of the employees are
     an integral part of the contract of employment and that
     these rights are vested at the time the employment is
     accepted. An amendment to the charter which attempts to
     take away or diminish these vested rights is an
     unconstitutional impairment of contract. However, this
     does not preclude reasonable modifications of the pension
     plan prior to the employees' retirement [to maintain the
     financial viability of the plan]. . . ."
                                                                  13


property right.   See Garney v. Massachusetts Teachers'

Retirement Sys., 469 Mass. 384, 389 (2014) (G. L. c. 32, § 15,

"involves the forfeiture of property").   See also Collatos v.

Boston Retirement Bd., 396 Mass. 684, 686 (1986).14,15    Cf. G. L.

c. 208, § 34 (property constituting marital estate subject to

division in divorce includes vested and unvested retirement

     14
       The public employee retirement administration commission
(PERAC) argues that to the extent Collatos v. Boston Retirement
Bd., 396 Mass. 684, 686 (1986), implies that forfeiture of a
pension involves property, the case was concerned with G. L.
c. 32, § 15 (3A), which requires forfeiture not only of pension
benefits, but also of the employee's accumulated salary
deductions (i.e., the employee's contributions to the retirement
system), whereas § 15 (4) directs that the employee's
accumulated deductions be returned to him. We read Collatos as
more broadly suggesting that the employee's right to pension
benefits themselves represented a property interest, but in any
event, § 15 (4) itself requires an employee to forfeit the
interest that would otherwise be due to him on his accumulated
salary deductions, see G. L. c. 32, § 15 (4), and such interest
clearly represents property belonging to the employee.
     15
       While the view that retirement benefits provided by a
public employee retirement system constitute a contractually
created property right is not universally shared by all, a
number of courts have so held. See, e.g., Betts v. Board of
Admin. of the Pub. Employees Retirement Sys., 21 Cal. 3d 859,
863 (1978); Birnbaum v. New York State Teachers Retirement Sys.,
5 N.Y.2d 1, 8-9 (1958); Mazzo v. Board of Pensions & Retirement
of the City of Philadelphia, 531 Pa. 78, 84 (1992); Leonard v.
Seattle, 81 Wash. 2d 479, 487-488 (1972) (pension rights
constitute property as deferred compensation); Booth v. Sims,
193 W. Va. 323, 337-341 (1994). See also Pineman v. Oechslin,
195 Conn. 405, 416-417 (1985) (even in absence of express
contractual rights to pension benefits, State employees have
property interest in them). Contrast, e.g., Hopkins v. Oklahoma
Pub. Employees Retirement Sys., 150 F.3d 1155, 1162 (10th Cir.
1998) (Oklahoma law); Hames v. Miami, 479 F. Supp. 2d 1276, 1288
(S.D. Fla. 2007) (Florida law); Spiller v. State, 627 A.2d 513,
516 (Me. 1993); Scarantino v. Public Sch. Employees' Retirement
Bd., 68 A.3d 375, 385 (Pa. Commw. Ct. 2013).
                                                                   14


benefits); Krapf v. Krapf, 439 Mass. 97, 104 (2003) (pension

rights "often constitute valuable marital assets").

    In arguing that Bettencourt had no property interest in his

retirement allowance, as stated previously, PERAC posits that an

employee's interest is always contingent on not being convicted

of an offense "applicable to his office" under § 15 (4); in

contractual terms, this contingency, in PERAC's view, is a

condition precedent that must be satisfied before the employee's

right to retirement benefits "matures" into a contractual right,

see Haverhill v. George Brox, Inc., 47 Mass. App. Ct. 717, 719

(1999), and without so maturing, no property right is or could

be created.   In support of this argument, PERAC relies on three

decisions of courts applying the laws of other States:   Hopkins,

150 F.3d at 1162 (holding that, under Oklahoma law, public

employee convicted of accepting bribe while in office had no

property right in pension benefits because pension was always

contingent on maintaining "honorable service" while in office;

employee's acceptance of bribe constituted breach of duty of

honorable service, and as result, employee had no "vested right"

in pension); Hames v. Miami, 479 F. Supp. 2d 1276, 1288 (S.D.

Fla. 2007) (11th Cir. 2008) (under Florida law, public employee

has no property interest in pension because pension vests

"subject to the conditions in the forfeiture statute"); and

Scarantino v. Public Sch. Employees Retirement Bd., 68 A.3d 375,
                                                                   15


385 (Pa. Commw. Ct. 2013) (under Pennsylvania law, public

employee's right to pension depends upon certain conditions

precedent, including that "an employee cannot have been

convicted of . . . [certain] crimes").

     We are not persuaded by the reasoning in these cases.    If

an employee has a protected contract right and, derivatively, a

property interest in retirement benefits, the fact that the

benefits may be subject to forfeiture on account of misconduct

does not change the fundamental character of the contract right

or property interest.   Rather, it simply means that the employee

will lose his or her right and interest as a result of the

misconduct.16

     PERAC also argues that no forfeiture occurred here because,

through the operation of § 15 (4), Bettencourt simply was

foreclosed from receiving retirement benefits in the future, and

nothing was actually "extracted" from him and paid to the

government as required to trigger review under the Eighth

     16
       Furthermore, in contrast to at least the Scarantino case
-- and directly contrary to PERAC's argument here -- when we
have described a public employee's conviction of an offense
described in § 15 (4) in contract terms, we have not
characterized the conviction as a "condition precedent" but
rather a "condition subsequent" that operates to discharge the
duty of the retirement system to pay benefits. See State Bd. of
Retirement v. Woodward, 446 Mass. 698, 705 n.7 (2006). This
characterization supports our conclusion that, under the
statutory scheme, a public employee participating in the
retirement system possesses a contractual entitlement or right
to the benefits before his or her commission of an offense
results in the forfeiture of that right.
                                                                   16


Amendment.   We disagree with PERAC that the phrase "extract

payments . . . in cash or in kind," as used by the Supreme Court

in Austin¸ 509 U.S. at 609-610, and Bajakajian, 524 U.S. at 328,

means that there literally must be a physical transfer of

tangible property from the individual to the State; "property"

exists in tangible and intangible form.   Under the

Commonwealth's public employee retirement system, the employee

makes contributions to the system during the period of his or

her active employment through salary deductions.   When the

employee retires for superannuation (assuming no beneficiaries),

he or she retires with an allowance that is comprised of an

"annuity share" actuarially determined on the basis of his or

her accumulated deductions, and a "pension share" that the

governmental unit is required to pay and that represents "the

usually considerable difference needed to make good the normal

yearly allowance paid to the [employee] until his death."

Opinion of the Justices, 364 Mass. at 854.    The pension share

that the employee is entitled to receive from the government

during retirement is money, i.e., property.   If the employee is

obligated to forfeit his or her retirement allowance pursuant to

§ 15 (4), the pension share reverts to the government; put

another way, by operation of § 15 (4), the pension share is

effectively transferred from the employee to the government.      We

consider this effective transfer of property to qualify as an
                                                                   17


extraction of payment from the employee to the sovereign within

the meaning of Austin and Bajakajian.

     To summarize, at the point that Bettencourt, as a Peabody

police officer, became a contributing member of the Peabody

retirement system with deductions taken from his salary in

accordance with governing statutes and rules, he acquired a

protected interest in the retirement allowance provided by the

retirement system that amounted to a property interest.    See

Opinion of the Justices, 364 Mass. at 863.17   This is not to say

that Bettencourt, or any public employee, may not lose his right

to receive his retirement allowance as a result of committing a

crime connected to his employment.   Section 15 (4) expressly

requires this result, and Bettencourt raises no challenge to the

authority of the Legislature to enact such a statute.    But the

fact that § 15 (4) mandates forfeiture of an employee's

retirement allowance when the employee is convicted of

misconduct in office does not mean that the employee lacked a

property interest in that allowance prior to the employee's

conviction.   Rather, it is precisely this property interest that

the employee is required to forfeit, and the forfeiture effects

what is in substance an extraction of payments from the employee

to the Commonwealth.

     17
       For cases in other jurisdictions to the same effect, see,
e.g., Betts, 21 Cal. 3d at 863; Birnbaum, 5 N.Y.2d at 8-9;
Leonard, 81 Wash. 2d at 487.
                                                                     18


    b.     Punishment requirement.   A forfeiture of property only

qualifies as a fine under the Eighth Amendment if it constitutes

punishment.   See Bajakajian, 524 U.S. at 328.   Bettencourt

argues that the required statutory forfeiture here did operate

to punish him for his criminal offense; PERAC, pointing to

MacLean, 432 Mass. at 351, characterizes the mandatory

forfeiture as serving remedial, nonpunitive purposes.

    In MacLean, 432 Mass. at 351, in the context of considering

a retired public employee's argument that the forfeiture of his

retirement allowance violated double jeopardy principles, we

stated that "[a]lthough § 15 (4) certainly contains an element

of deterrence, it also serves other, nonpunitive purposes, such

as protection of the public fisc and preserving respect for

government service."    But there is no double jeopardy issue

raised in this case, and for purposes of the excessive fines

clause, the Supreme Court has made clear that unless the

sanction at issue -- here, forfeiture -- can be said to serve

"solely" a remedial purpose, it qualifies as punishment.

Austin, 509 U.S. at 610, quoting United States v. Halper, 490

U.S. 435, 448 (1989).   Accord Bajakajian, 524 U.S. at 329 n.4,

331 n.6.

    In Bajakajian, the Court described the characteristics of

the currency forfeiture at issue there that indicated it

qualified as punishment:   "The forfeiture is . . . imposed at
                                                                      19


the culmination of a criminal proceeding and requires conviction

of an underlying felony, and it cannot be imposed upon an

innocent owner."     Id. at 328.    Forfeiture pursuant to § 15 (4)

meets all of these criteria.       It operates as "an automatic legal

consequence of conviction of certain offenses," MacLean, supra

at 343; it only comes into play after the employee's final

conviction of one of those offenses; and it cannot be imposed on

an employee who is not convicted of committing such an offense.

We conclude, therefore, that the forfeiture required by § 15 (4)

qualifies as "punishment."    Accordingly, because the forfeiture

does involve an "extraction of payments" and is punitive, it is

a fine within the meaning of the excessive fines clause of the

Eighth Amendment.    We turn to the question whether the

forfeiture is excessive.

     2.     Was the fine excessive?    Bettencourt argues that the

mandated forfeiture of his retirement benefits is excessive

because the amount of the forfeiture is grossly disproportional

to the gravity of his offenses.       The District Court judge

agreed.18




     18
       The Superior Court judge, having concluded that
forfeiture pursuant to § 15 (4) did not constitute a fine, did
not analyze excessiveness.
                                                                     20


       We review the District Court judge's determination of

excessiveness de novo.     Maher, 452 Mass. at 523.19    "The

touchstone of the constitutional inquiry under the Excessive

Fines Clause is the principle of proportionality:       The amount of

the forfeiture must bear some relationship to the gravity of the

offense that it is designed to punish."        Bajakajian, 524 U.S. at

334.    In conducting the review, we are to compare the forfeiture

amount to that offense, and "[i]f the amount of the forfeiture

is grossly disproportional to the gravity of the defendant's

offense, it is unconstitutional."     Id. at 337.    See Maher, supra

at 522.     As the party challenging the constitutionality of the

forfeiture, Bettencourt bears the burden of demonstrating that

the forfeiture is excessive.     Id. at 523.

       The amount of the forfeiture is the first issue to

consider.     Bettencourt estimated the value of his pension

benefits to be approximately $1,487,940 and the value of his

health care benefits to be approximately $482,500, or

approximately $1.9 million in total.     In contrast, PERAC

introduced an actuarial estimate stating that the value of

Bettencourt's pension benefits, independent of the health


       19
       Factual findings, when made by a judge, are to be
accepted unless clearly erroneous. See Bajakajian, 524 U.S. at
336 n.10. The District Court judge made no findings here. As
this court has noted, "[i]n any forfeiture case it would be
helpful for the judge to make a finding of the total value of
the forfeiture involved." MacLean, 432 Mass. at 348 n.11.
                                                                   21


benefits, was $659,000.    Although PERAC disputes Bettencourt's

calculation of health benefits, PERAC agrees that they confer

some value.    Accepting for purposes of discussion that PERAC's

estimate is correct, Bettencourt would face forfeiture of

$659,000 at a minimum, plus the value of health insurance

benefits.20   Bettencourt accrued his interest in the forfeited

benefits over more than twenty-five years of public service.

     Turning to the gravity of the underlying offenses that

triggered the forfeiture, we are called upon to gauge the degree

of Bettencourt's culpability and, in that regard, to consider

the nature and circumstances of his offenses, whether they were

related to any other illegal activities, the aggregate maximum

sentence that could have been imposed, and the harm resulting

from them.    See Maher, 452 Mass. at 523, citing Bajakajian, 524

U.S. at 337-339; MacLean, 432 Mass. at 346.    We consider these

factors in order.

     First, with respect to the nature and circumstances of the

offenses, Bettencourt was convicted of twenty-one counts of

unauthorized access to a computer system in violation of G. L.

c. 266, § 120F,21 during a single shift of duty; in the period of


     20
        The differing values and estimates provided by the
parties underscore the need for factual findings to be made by
the District Court judge reviewing a forfeiture case such as
this.
     21
        General Laws c. 266, § 120F, provides in relevant part:
                                                                      22


access, he viewed private information, including civil service

examination scores relating to several police officers within

his department.    In sentencing Bettencourt, the trial judge

observed that there was no evidence that Bettencourt made any

use at all of this private information -- i.e., no evidence of

any gain to Bettencourt other than the satisfaction of his

curiosity; the essence of his crime, in substance, was one of

"snooping."

       Second, Bettencourt's offenses were wholly unrelated to

other illegal activities.    Bettencourt had no prior criminal

record, and there is nothing before us suggesting that he had

engaged in any criminal or illegal misconduct besides this one

episode of accessing the computer files without authority.

       The third factor focuses on the maximum potential penalties

for Bettencourt's offenses.    See Bajakajian, 524 U.S. at 338-

339.    In this regard, "the maximum punishment authorized by the

Legislature is the determinative factor."       Maher, 452 Mass. at

524 n.12.    See MacLean, 432 Mass. at 348.22    The maximum



           "Whoever, without authorization, knowingly accesses a
     computer system by any means, or after gaining access to a
     computer system by any means knows that such access is not
     authorized and fails to terminate such access, shall be
     punished by imprisonment in the house of correction for not
     more than thirty days or by a fine of not more than one
     thousand dollars, or both."
     22
        Bettencourt argues that our analysis of the maximum
penalty should be controlled by the maximum punishment
authorized by the Massachusetts sentencing guidelines, citing
                                                                   23


punishment authorized by the Legislature for a single offense

under G. L. c. 266, § 120F, a misdemeanor, is imprisonment in a

house of correction for thirty days and a fine of not more than

$1,000, which suggests to us that the Legislature did not view

this crime as a grave, serious offense.   See Bajakajian, 524

U.S. at 338-339 (maximum possible punishment of six months'

imprisonment and $5,000 fine confirms "minimal level of

culpability").   Compare Maher, supra at 524 (discussing maximum

penalties of felonies of which retired public employee had been

convicted).   The aggregate maximum penalty that could have been

imposed on Bettencourt -- imprisonment in the house of

correction for 630 days and a fine of $21,00023 -- does not

indicate a substantial level of culpability for purposes of this

analysis, particularly where the potential period of

imprisonment is relatively low as compared to that of other

crimes.24



Bajakajian, 524 U.S. at 338-339. The argument fails. The
Massachusetts sentencing guidelines are simply guidelines, not a
set of rules that judges must follow -- in contrast to the
Federal sentencing guidelines that were in effect at the time
that Bajakajian was decided and until the Supreme Court's
decision in United States v. Booker, 543 U.S. 220 (2005).
     23
        Bettencourt received a sentence of $10,500, or $500 for
each offense, but was not sentenced to a term of imprisonment or
probation. We decline to consider the relative leniency of the
sentence received by Bettencourt as opposed to other potential
violators. See Maher, 452 Mass. at 524 n.12.
     24
        In MacLean, 432 Mass. at 348, this court opined that the
maximum term of imprisonment that could be imposed for a single
                                                                    24


       Harm caused by the offense is the fourth factor.   PERAC

contends that Bettencourt's offenses were a breach of the public

trust that was "especially serious because it involve[d] a

police officer, in command of a police department, breaking the

law in the police station, by willfully impersonating fellow

police officers while using their personal information to do

so."    We recognize that Bettencourt's offenses certainly

violated the privacy rights of his fellow officers, and -- as

will always be the case when a public employee commits a crime

by violating a law connected to his or her office or position --

that there was a breach of the public trust.    However, no harm

to the public fisc was accomplished or threatened here, compare

Maher, supra at 524-525, there was no improper or illegal gain

involved, compare MacLean, supra at 349-350, and, as the trial

judge recognized, the offenses did not warrant concern about

protection of the public.    PERAC also argues that Bettencourt's

offenses undermined the integrity of the civil service promotion



violation of the conflict of interest law, G. L. c. 268A, § 7 --
two years (at the time of that case) -- in combination with the
possible aggregate fine for the two offenses to which MacLean
had pleaded guilty -- $6,000 -- indicated that the Legislature
"considered violations of this [statute] a serious offense."
The opinion does not explain why the court combined the maximum
statutory period of incarceration for a single violation of
G. L. c. 268A, § 7, with the maximum fine for MacLean's two
offenses. The maximum term of imprisonment for two violations
of this statute would have been four years. This is
significantly longer than the maximum possible term of
imprisonment in this case, 630 days.
                                                                  25


process because the knowledge of the identities of his main

competitors for promotion to captain and their examination

scores provided an advantage to him.   But, as the District Court

judge stated, despite PERAC's attempts to speculate about how

Bettencourt could have gained from knowledge of the scores,

nothing in the record demonstrates that Bettencourt received any

personal benefit, profit, or gain from his actions.   Over-all,

although there certainly was harm caused by Bettencourt, it was

relatively small as compared to our other cases.25


     25
       PERAC also argues that the forfeiture of $659,000, plus
an undetermined value of health insurance benefits, is not
excessive because it is comparable to other forfeiture amounts
upheld by this court and the Appeals Court under § 15 (4). See
Maher, 452 Mass. at 525 ($576,000 not excessive); MacLean, 432
Mass. at 348-350 ($625,000 not excessive); Flaherty, 83 Mass.
App. Ct. at 124-125 ($940,000 not excessive). We disagree. The
facts of each of these cases are very different, and each case
must be decided on its own facts. See Bajakajian, 524 U.S. at
336 n.10. Cf. Gaffney v. Contributory Retirement Appeal Bd.,
423 Mass. 1, 5 (1996) (court must look to facts of each case to
determine whether "direct link" between criminal offense and
public employee's position exists). Unlike Bettencourt's
offenses, MacLean's offenses resulted in substantial pecuniary
benefits to himself and his wife; the forfeiture was triggered
by multiple illegal activities that concerned the financial
interest of the State; and the offenses occurred over a lengthy
period of time. The crimes to which Maher pleaded guilty --
breaking and entering in the daytime with intent to commit a
felony, stealing in a building, and wanton destruction of
property -- were far more serious in nature, including felonies;
Maher faced a potential maximum penalty of seventeen and one-
half years of imprisonment; there was evidence that he stood to
gain a substantial salary from his misconduct; and Maher's
crimes "could have undermined public confidence in the selection
and appointment of officials to supervisory positions," Maher,
452 Mass. at 525. Flaherty was the superintendent of the
Haverhill highway department and was convicted of larceny over
                                                                   26


     Considering the factors discussed above, we conclude that

the complete forfeiture of Bettencourt's retirement benefits in

excess of $659,000, accrued over a lengthy career as a full-time

municipal police officer, was not proportional to the gravity of

the underlying offenses of which he was convicted.   In sum, the

forfeiture violates the excessive fines clause of the Eighth

Amendment.

     3.   If the mandatory forfeiture of a public employee's

retirement allowance qualifies as an excessive fine, what is the

appropriate remedy?26   Although the United States Supreme Court

in Bajakajian declined to consider the issue,27 we recognize that

like the trial judge in Bajakajian (see note 27, supra), as


$250, a felony, for stealing paving supplies from the highway
department in concert with his son, who also worked for the
highway department and was under Flaherty's supervision, in
order to make use of the supplies in a side business Flaherty
operated; the acts of larceny occurred several times over the
course of three years. The fact that Flaherty stole from the
government for years with the help of his government-employed
son and used the stolen materials for personal gain added to his
level of culpability, justifying the forfeiture of his pension
benefits. No such facts are present in this case.
     26
       Following oral argument in this case, we invited the
parties to address this and related subsidiary questions in
supplemental memoranda. The parties and the Massachusetts
Coalition of Police, as amicus, all did so.
     27
       In Bajakajian, 524 U.S. at 326, the trial judge, after
determining that the statutory forfeiture amount was excessive
and therefore constitutionally invalid, proceeded to establish
an alternative forfeiture amount that the judge deemed
appropriate. The Supreme Court, however, declined to consider
the propriety of that determination, as the defendant had not
cross-appealed that issue. See id. at 337 n.11.
                                                                  27


PERAC points out, a number of courts, after concluding that a

statutory forfeiture operated as an excessive fine in the

particular circumstances of the case, have proceeded to

determine a forfeiture amount that would not be excessive, and

have imposed it.   See, e.g., United States v. Castello, 611 F.3d

116, 121 (2d Cir. 2010), cert. denied, 562 U.S. 1251 (2011)

(where forfeiture amount is constitutionally excessive, court

must impose alternative fine in exact amount over which fine

would become excessive); United States v. Sarbello, 985 F.2d

716, 724 (3d Cir. 1993) (holding in context of case involving

Racketeer Influenced and Corrupt Organizations Act violations

that lower court is required to impose maximum fine amount that

would not be excessive under Eighth Amendment).28    Cf. United

States ex rel. Bunk v. Gosselin World Wide Moving, N.V., 741

F.3d 390, 405-410 (4th Cir. 2013) (civil qui tam actions under

Federal False Claims Act; relator's acceptance of less than

statutory False Claims Act penalty was permissible solution to

Eighth Amendment excessive fines concern and amount agreed upon

did not qualify as constitutionally excessive).     But see, e.g.,

United States v. One Parcel of Real Prop. Located at 461 Shelby

Rd. 361, Pelham, Ala., 857 F. Supp. 935, 939-940 (N.D. Ala.

1994) (declining to adopt holding in Sarbello and impose

     28
       See also United States v. Corrado, 227 F.3d 543, 552, 558
(6th Cir. 2000); United States v. Bieri, 21 F.3d 819, 824 (8th
Cir.), cert. denied, 513 U.S. 878 (1994).
                                                                   28


alternative fine, noting difficulty judges would face in

determining exact amount defendant could be fined without

violating excessive fines clause).

     We agree with PERAC that, as a general proposition, where a

court determines that imposition of a statutorily mandated

forfeiture would violate the Eighth Amendment's excessive fines

clause, it is likely within the court's authority to determine a

level or amount of forfeiture or fine that would be

constitutionally permissible –- whether the statutory forfeiture

is criminal (as in the Castello and Sarbello cases) or, as here,

civil in nature.   However, we decline to attempt such a

determination in this case.   We do so because even if we put to

one side the inherent difficulty in determining the maximum

amount of retirement allowance forfeiture that is

constitutionally permissible,29 implementation of this judicially


     29
       In those cases where a court has ordered that a statutory
forfeiture amount would be an excessive fine and has imposed a
lesser fine, the property subject to forfeiture has been readily
divisible, the total value of the property was established, and
the forfeiture was to be imposed on a one-time basis by payment
to the government. See United States v. Castello, 611 F.3d 116,
118 (2d Cir. 2010), cert. denied, 562 U.S. 1251 (2011)
(forfeiture amount determined as percentage of value of checks
exceeding $10,000 for which no currency transaction reports were
filed, funds connected to crime committed, and defendant's
equity interest in his home); Bieri, 21 F.3d at 824 (real
property potentially subject to forfeiture was divisible by
plots of land); United States v. Sarbello, 985 F.2d 716, 724 (3d
Cir. 1993) (specific percentage of defendant's interest in
business required to be forfeited). None of those factors is
known with adequate certainty in this case.
                                                                  29


established forfeiture determination would involve the creation

of procedures to be carried out by administrative bodies such as

the local retirement board and perhaps PERAC, for which there is

currently no legislative authorization or direction.30   Stated in

more general terms, the decision that a public employee's

retirement allowance should be forfeited completely upon

conviction of certain types of crimes constitutes a policy

choice for the Legislature to make -- as it has by enacting § 15

(4).

       This is the first case in which this court has held (rather

than assumed) that the forfeiture required by § 15 (4) is

subject to the excessive fines clause of the Eighth Amendment,

and the first case in which the court has determined that a

total forfeiture of a public employee's pension pursuant to § 15

       30
       In a hypothetical case in which a court determines that
total pension forfeiture is constitutionally excessive, PERAC
has proposed an implementation plan that appears to require the
following. First, the local retirement board would determine
the total value of the employee's (here, Bettencourt's)
retirement allowance and health insurance benefits; using the
total value, the local board would then determine what the
employee's monthly retirement allowance and health insurance
benefits would be; and the local board would then calculate how
many months need to pass until the sum of the monthly payments
withheld equaled the constitutionally permissible forfeiture
amount imposed by the judge. Then, at the end of that
calculated period of time, the employee would be entitled to
begin receiving monthly payments (if the employee were still
alive). Presumably, there would need to be some additional
adjustments to this implementation plan if the employee had
elected, as Bettencourt did, a retirement plan option that
included payments to a beneficiary in the event of the
employee's death.
                                                                     30


(4) would violate that clause.     Accordingly, the Legislature has

not had the opportunity to consider what should occur if and

when such a judicial determination of excessiveness is made, and

questions of policy abound.     For example, assuming that where a

court finds that total forfeiture of a public employee's pension

would be constitutionally excessive, the Legislature would seek

to require forfeiture of the maximum amount a court found

constitutionally permissible -- an assumption that itself

obviously incorporates a policy judgment -- what method for

implementation of such a decision would the Legislature choose?

The method suggested by PERAC?31    A method that distributed to

the employee a reduced benefit payment on a periodic basis

immediately following the court's judgment, calculated to

account for the constitutionally permissible forfeiture amount?

A different method altogether?     Or, in light of our

determination that the excessive fines clause applies to the

statutory pension forfeiture program prescribed by § 15 (4),

might the Legislature choose to establish a wholly different

forfeiture system -- for example, one that provided for

different percentages of pension forfeiture depending on the

nature and circumstances of the crime?

     These types of determinations are ones that fit squarely

within the legislative, not the judicial, domain, and we believe

     31
          See note 30, supra.
                                                                    31


that the more prudent approach is to defer to the Legislature

for its resolution of such issues in the first instance.      See

Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320,

329 (2006) (where Court determines statute is unconstitutional

as applied, its "ability to devise a judicial remedy that does

not entail quintessentially legislative work often depends on

how clearly [it has] already articulated the background

constitutional rules at issue and how easily [it] can articulate

the remedy").

    Conclusion.     There is no question that the mandatory

forfeiture provisions of § 15 (4) serve an important public

interest in protecting the honesty and integrity of those who

are paid with public funds to carry out the responsibilities of

government.     We emphasize that the Legislature properly may

provide for such forfeitures.     We hold today, however, that

under the pension forfeiture scheme established by G. L. c. 32,

§ 15 (4), the complete forfeiture of a public employee's

retirement allowance upon conviction of a crime "involving

violation of the laws applicable to his office or position" is a

fine that is subject to the Eighth Amendment's proscription

against excessive fines.     In the present case, because § 15 (4),

as applied to Bettencourt, results in the imposition of an

excessive fine under the Eighth Amendment, the statute cannot be

enforced, and his retirement allowance cannot be forfeited
                                                                32


pursuant to the statute's terms.32   Any changes to the system of

retirement allowance forfeiture established by § 15 (4)

implicate policy determinations that the Legislature should have

an opportunity to make in the first instance.

     The judgment of the Superior Court is vacated, and the case

remanded to that court for entry of judgment affirming the

judgment of the District Court.

                                     So ordered.




     32
       Our conclusion that Bettencourt is entitled to his
retirement allowance in full is based solely on the application
of the mandatory total forfeiture provision in G. L. c. 32, § 15
(4), to the particular facts presented in this case -- as
discussed, commission of a misdemeanor with a relatively light
maximum sentence, no attempt by Bettencourt to divert or misuse
public funds, no evidence that the private information he
improperly gained was misused (or used at all), and no injury
beyond the invasion of the other officers' privacy interest in
their respective test scores. If history is any guide, cases
involving such a relatively minimal degree of culpability and
harm to the public are highly unusual. It is significant that
in the cases previously before this court and the Appeals Court
in which the courts assumed without deciding that the Eighth
Amendment's excessive fines clause applied to forfeitures
imposed under § 15 (4), the total forfeitures of the employees'
retirement allowances were not deemed to be excessive. See
Maher, 452 Mass. at 518, 523-525; MacLean, 432 Mass. at 348-350;
Flaherty, 83 Mass. App. Ct. at 124-125.
