Auspices of Austin: examining excessivenss of civil forfeitures under the Eighth Amendment.

• Author: Spencer, Jerome

1. INTRODUCTION II. AUSPICES OF AUSTIN

   1. The Inauspiciousness of Austin

   2. Instigators of Instrumentality

   3. Proponents of Proportionality

   4. Moguls of Mixing III. ANALYSIS

   1. Instrumentality Tests

   2. Mixed Theories IV. EPILOGUE: WHAT DOES BENNIS BODE AND URSERY AUGER? V. CONCLUSION

1. INTRODUCTION

   Old MacDonald had a farm--until the county sheriff discovered marijuana growing in fields MacDonald had not visited in years. Now Old Uncle Sam has the farm; pigs, cows, and chickens included.

   Old Mother Hubbard used to have a cupboard. But she used her storage jars to stash away crack and drug money. Now the cupboard and her house belong to the government, and the cupboard is bare.

   Little Red Riding Hood used to have a twenty-four carat gold basket. But when she lent it to her buddy the Big Bad Wolf, it became stuffed with heroin instead of bread and cookies. The basket was sold at government auction, and now an assistant United States attorney picnics with Little Red's basket instead.

   The three bears used to have a quaint little summer home in the woods. Mama Bear would lace her porridge with LSD and eat it cold for brunch. Papa and Baby Bear knew about it, but that was Mama and they loved her anyway. Goldilocks, a confidential informant for the DEA, discovered Mama Bear's unusual breakfast ritual. Now she and her government friends use the cottage as a week-end retreat. Papa and Baby Bear had to move in with an old woman who lives in a shoe.

   Neither Old MacDonald, Mother Hubbard, Little Red Riding Hood, Papa Bear, nor Baby Bear were ever charged with a crime, yet they all lost property that was very special to them. In that, they were not unlike hundreds of Americans who are subjected to civil forfeitures. In a civil forfeiture, the government need only show probable cause that someone's property was involved in, or is the proceed of, an illegal act. If the owner is unable to prove by a preponderance of evidence that the property is not involved with an illegal act, he or she loses the property. The government can then keep it or sell it, with the proceeds generally going to the same law enforcement agencies who investigated the suspicious activity.

   Until recently, property owners facing a civil forfeiture had little constitutional protection. The taking of Little Red Riding Hood's basket seems more severe than taking Mother Hubbard's cupboard, but because a "civil" forfeiture was not considered punishment, there was nothing Little Red could do. The Eighth Amendment, which protects citizens from the imposition of excessive fines, was said to not apply to civil forfeitures.

   Then, one day, a South Dakotan sold some cocaine and changed everything.

   This Note seeks to study the issues surrounding forfeitures and the Eighth Amendment. Specifically, I address the question of when is a forfeiture an "excessive fine"? I begin in Part II with a brief look at the Supreme Court's decision in Austin v. United States.(1) In Austin, the Supreme Court ruled that civil forfeitures, particularly drug-related forfeitures, are indeed subject to the Eighth Amendment's prohibition against excessive fines. What Austin left unsaid, however, is how one can know when a forfeiture is excessive. After briefly discussing the Supreme Court's lapse, the Note proceeds to analyze the three major types of excessive fines tests that have developed in the wake of Austin. This is followed in Part III with a discussion of relevant insights into the debate about civil forfeiture and the Eighth Amendment. Finally, in Part IV, a word or two is said about the possible ramifications of the Supreme Court's recent decisions in Bennis v. Michigan(2) and United States v. Ursery.(3)

2. AUSPICES OF AUSTIN

   In June of 1990, Richard Austin sold two grains of cocaine to a government informant. The informant, Keith Engrebetson, met Austin at Austin's auto body shop in South Dakota and asked for some cocaine. Austin agreed to a sale, went to his nearby mobile home, and came back with the drugs. The next day, the local authorities swept in, searching both the shop and the home. They found "small amounts of marijuana and cocaine, a .22 caliber revolver, drug paraphernalia, and approximately $4,700 in cash."(4) Austin pled guilty in state court to possession of cocaine with intent to distribute and was sentenced to seven years imprisonment. Shortly thereafter, the federal government seized both his body shop and his mobile home, claiming them under 21 U.S.C. [sections] 881(a)(7).(5) Austin appealed the forfeitures, claiming that they violated his Eighth Amendment rights, specifically the Excessive Fines Clause.(6) His argument was in vain, however, as both the district court and the Eighth Circuit rejected his argument and upheld the forfeitures.(7)

   At the heart of the Eighth Circuit's rejection of Austin's claim was its determination that the Eighth Amendment did not apply to in rem forfeitures. In rem forfeiture proceedings operate under the legal fiction that a piece of property has offended the sovereign and is thus forfeit to the sovereign. The property itself is charged with a crime.(9) As such, Austin's case before the Eighth Circuit was titled United States v. One Parcel of Property Located at 508 Depot Street.(10) Until Austin appealed to the United States Supreme Court, in rem proceedings were believed to be fundamentally different from in personam proceedings, which are targeted against a property owner directly.(11) Because in rem actions do not, technically, punish the property owner, the Eighth Circuit held that Eighth Amendment protections against excessive fines could not apply.(12)

   The United States Supreme Court unanimously reversed. The justices were split on their reasoning, however. Four--Justice Scalia, and Justice Kennedy with Chief Justice Rehnquist and Justice Thomas--merely admitted that 21 U.S.C. [sections] 88 1 (a)(7), despite its in rem cloak, was intended to punish property owners and thus was subject to Eighth Amendment scrutiny.(13) The remaining five--Justice Blackmun with Justices White, Stevens, O'Connor, and Souter--declared that all in rem forfeitures serve to punish the property owner for allowing or causing misuse of his property and were subject to Excessive Fines Clause scrutiny.(14) The importance of the Excessive Fines Clause was further emphasized the same day Austin was decided, when all nine justices agreed that an Excessive Fines Clause review of an in personam forfeiture was necessary.(15)

   Having won the right to have the forfeitures subjected to the Eighth Amendment, Richard Austin asked the Court to fashion a test that would determine if he would have a home and job waiting for him when his prison term was up. For Austin himself, the nature of the test ended up being irrelevant. After selling the shop and mobile home to a third-party buyer, the federal government gave Austin "an undisclosed compensation."(16) For hundreds of others who would find themselves facing government forfeiture actions, however, the nature of the test to be applied was a question of paramount importance.

   1. The Inauspiciousness of Austin:

      The Majority Skips Setting Standards While Scalia Speaks

      "We decline that invitation."(17)

      Thus did the majority in Austin respond to Austin's request that a test be formulated to determine when a fine is excessive and unconstitutional. If discretion is the better part of valor, the Austin majority must be very brave, indeed. "Prudence dictates that we allow the lower courts to consider that question . . ." the majority opined,(18) and the result has been a plethora of differing approaches to analyzing the Excessive Fines Clause. The confusion goes beyond the development of a test; courts also disagree about the viability of the in rem/in personam distinction, and about the impact that tests developed for forfeitures should have on tests used for old-fashioned fines.(19)

      In Austin, only Justice Scalia offered the lower courts any guidance about the test that should be used. Scalia clung to the notion that in rem proceedings are fundamentally different from monetary fines or in personam forfeitures. For the latter, "the touchstone" of an Eighth Amendment inquiry is the "value of the fine in relation to the offense.(20) In rem forfeitures, however, "have traditionally been fixed ... by determining what property has been `tainted' by unlawful use...."(21) For Scalia, the test for determining excessiveness comes down to an analysis of "the relationship of the property to the offense: Was it close enough to render the property ... `guilty' and hence forfeitable?"(22) In other words, if the property was sufficiently connected to the offense to be considered an instrument of the crime, it is forfeitable. This "instrumentality" approach has drawn some praise and more than a few adherents.(23)

      Scalia's approach, however, has many drawbacks and has been the subject of much criticism. First, the majority in Austin dismissed the idea that "instrumentality" should be the sole measure of constitutionality, and expressly allowed lower courts to examine other factors in their decisions.(24) Second, Chief Justice Rehnquist, in a majority opinion issued the same day as Austin,(25) intimated that the Eighth Amendment in general, and the Excessive Fines Clause in particular, may demand a proportionality test: is the value of the item forfeited proportional to the crime committed?(26) Third, Scalia himself had earlier rejected the use of a proportionality test under the Cruel and Unusual Punishments Clause because the clause did not warn against "excessive" punishment. Since the Eighth Amendment does warn against "excessive fines," however, Scalia's own reasoning seems to require, or at least contemplate, a proportionality test.(27)

      Criticism of Scalia's test has focused on these three factors and gone even further. One reviewer points to an odd discrepancy in Scalia's reasoning: although Scalia views the forfeitures...