Covering your assets.

• Author: Godleske, Konrad

When Richard Austin pleaded guilty to one count of possessing cocaine with intent to distribute, the state of South Dakota sentenced him to seven years in prison. Federal authorities also seized his mobile home and auto-body shop in a civil forfeiture action.

Austin appealed, arguing that the forfeiture violated the Excessive Fines Clause of the Eighth Amendment. The government maintained that the Eighth Amendment does not apply to owners in civil forfeiture cases. (See "Ill-Gotten Gains," Aug./Sept.)

On June 28, the U.S. Supreme Court unanimously sided with Austin. Justice Harry Blackmun wrote for the Court that "the question is not, as the United States would have it, whether forfeiture is civil or criminal, but rather whether it is punishment." The Court rejected the idea that civil forfeiture is "remedial," a form compensation owed to the state. Since forfeiture is a monetary punishment, it is subject to the Excessive Fines Clause. The decision leaves open the possibility that other protections enjoyed by criminal defendants, such as a heavier burden of proof on the prosecution, might also be extended to civil forfeiture cases.

"This decision will end the grossly disproportionate, blatantly inequitable seizures we've seen under the drug war's 'zero-tolerance' doctrine," says Scott Bullock, an attorney with the Institute for Justice, a public-interest law firm in Washington, D.C. "The...