Eighth Amendment - the excessive fines clause.

AuthorLieber, David M.
PositionSupreme Court Review - Case Note

    In Austin v. United States,(1) the United States Supreme Court unanimously held that civil in rem forfeitures must comply with the Excessive Fines Clause of the Eighth Amendment.(2) In so doing, the Court reversed a substantial body of precedent, including the rulings of several circuit courts of appeal and its own dicta. This Note argues that this result is in accord with other recent Court decisions applying Bill of Rights protections to civil contexts, and that the decision extends an important protection to defendants who face the power of the government in civil rather than criminal court. However, the Court was sharply divided on the question of whether a completely innocent owner of guilty property could be deprived of it constitutionally. Since this issue was not directly raised in Austin, and the disposition did not rest on it, the actual innocence issue clouds what otherwise might have been a clear affirmation of the right of civil defendants to Eighth Amendment protection when they are sued by the government.


    Civil in rem forfeiture provides distinct advantages over traditional criminal proceedings to law enforcement officials seeking to combat drug dealing. In rem forfeiture is based on the fiction that the property sought is in some way guilty; a forfeiture proceeding is therefore directed against the property, not its owner.(3) The required burden of proof is much easier to meet when the government acts as plaintiff rather than prosecutor. The initial burden on the government in an action in rem is merely to show that probable cause existed to believe that property was used or intended for illicit purposes.(4) If the government makes this showing, the burden shifts to the property owner to provide evidence that the property in question is not subject to forfeiture.(5) In addition to procedural incentives, civil forfeiture actions provide tangible rewards to the government. Unlike incarceration, for instance, which is a drain on the resources of the state, forfeiture produces revenue for the government, since the government acquires title to the forfeited property.(6)

    As the war on drugs has escalated, the federal government has declared asset forfeiture "one of the most powerful law enforcement weapons" available.(7) States, with the strong encouragement of the federal government, have strengthened their own forfeiture laws, and receive a share of assets seized under federal law.(8) However, civil forfeiture is not a new invention. Rather, it arises out of prerevolutionary English Common Law.(9)

    Common law recognized the deodand, by which the value of an inanimate object that caused an accidental death was forfeited to the crown.(10) Although it originated as a form of religious expiation for causing the death of another, the deodand continued after it lost religious significance, justified as a form of punishment for negligence.(11) Similarly, conviction for treason at common law was grounds for forfeiture of estate.(12) The gravity of the felon's offense was held to justify stripping him of property rights.(13) Statutory forfeitures arose out of the combined legacy of deodands and forfeiture of estate.(14) This type of forfeiture made ships operating in violation of customs laws and their cargoes forfeitable.(15) Although deodands and forfeiture of estate never became part of American common law, the tradition of in rem forfeitures survived. Statutory forfeitures were among the earliest acts passed by the United States.(16)

    The guilty property fiction has historically prevented property owners from arguing their own innocence as a defense to civil forfeiture.(17) In Calero-Toledo v. Pearson Yacht Leasing Co.,(18) the United States Supreme Court reversed a district court decision that an owner was deprived of due process when his boat was forfeited due to a drug violation in which he was not involved.(19) In holding that ignorance of illegal activity that occurs on one's property does not immunize the property from forfeiture, the Court cited a long line of decisions rejecting innocent ownership as a defense to forfeiture.(20) Among the cases cited were The Palmyra(21) and United States v. Brig Malek Adhel.(22) In both cases ships were held forfeitable for piracy, regardless of whether their owners were aware of how the ships were used.(23) The Pearson Yacht Court did not, however, completely ignore the culpability of the property owner. The Court concluded that subjecting even "innocent" owners to the threat of forfeiture served legitimate government ends by encouraging these owners to monitor the use of their property.(24) However, if the owner could prove that the property in question was, for instance, stolen from him, the Court said that "it would be difficult to reject the [innocent owner's] constitutional claim."(25) Recently, the Court has held that the due process rights of innocent owners must be protected in some civil forfeitures under 21 U.S.C. [sections] 881(a)(7) by providing all owners with pre-seizure notice.(26)

    Although the Eighth Amendment provides a substantive check on the sovereign power to interfere with individual liberty by prohibiting cruel and unusual punishments, the Excessive Fines Clause(27) prohibition has received very little attention either from the framers of the Constitution or from the Supreme Court. The first Supreme Court decision interpreting the Excessive Fines Clause involved a 1989 punitive damages case.(28) In Browning-Ferris, a garbage collection company held liable under state law for unfair trade practices argued that the six million dollar punitive damage award against it was an excessive fine, since the jury had awarded only $51,146 in compensatory damages.(29) The Court denied the Eighth Amendment claim and held that interpretation of the amendment should be guided by the meaning of the amendment at the time it was adopted.(30) That historical meaning derived directly from the Court's interpretation of the English Bill of Rights of 1689, upon which the Eighth Amendment is patterned.(31) The Court decided that, since the time of its adoption, the purpose of the amendment has been to limit the abuse of the government's prosecutorial power.(32) While Browning-Ferris did not ultimately invalidate a civil penalty under the Eighth Amendment, it firmly established that the Excessive Fines provision was intended to limit government's power to punish individuals, and was not limited by the procedural form of such a punishment.

    Although it did not do so in Browning-Ferris, the Court has applied Bill of Rights protections to defendants who were taken into civil court by the government. The punishment sought by the government in a civil matter may be so punitive as to render that proceeding a criminal prosecution for the purposes of Fifth and Sixth Amendment analysis.(33) The Court makes this determination by examining whether the purpose of the sanction is remedial--to compensate the government--or deterrent and retributive--the hallmarks of criminal punishments.(34)

    More importantly, however, the Court has decided that Bill of Rights protections can apply to defendants in purely civil proceedings when the government is the plaintiff.(35) In United States v. Halper,(36) the defendant was convicted of making sixty-five false Medicare claims for which he was given a criminal penalty of two years imprisonment and a $5,000 fine.(37) The government then sued Halper under the civil False Claims Act, under which he was liable for more than $130,000.(38) Halper contended that this was a second punishment for the same act, and therefore was prohibited by the Double jeopardy Clause of the Fifth Amendment.(39) The Supreme Court agreed, holding that punishment was imposed by such a civil penalty, and that the defendant could not be punished twice.(40) Although it noted that status as a criminal proceeding determined whether the Sixth Amendment's procedural safeguards applied, the Court held that the civil-criminal distinction was not especially relevant for Double Jeopardy Clause analysis, but rather that the pertinent question was whether punishment was being imposed.(41) Again, the Court decided the issue of what constituted punishment by looking at the goals of the sanction and by determining whether those goals met the punitive motives of deterrence and retribution.(42)

    Although the circuit courts unanimously refrained from invalidating any forfeiture on Eighth Amendment grounds, their approach to these cases revealed disagreement over the import of Halper and showed the potential for inconsistent results. In United States v. 38 Whaler's Cove Drive,(43) the Court of Appeals for the Second Circuit stated that Halper applied to civil forfeitures but decided that the issue of whether a forfeiture was punitive under Halper ought to be considered on a case-by-case basis.(44) In judging what constituted punishment, the Second Circuit held that the guilty property fiction generally served as evidence that such seizures are remedial rather than punitive, since in rem forfeitures remove an instrumentality of the crime.(45) Ultimately, the Whaler's Cove court decided that the forfeiture of a $145,000 condominium where only $250 of cocaine was sold was not sufficiently punitive to violate the Eighth Amendment, since the size of the forfeiture was not grossly different from fines imposed in other jurisdictions.(46)

    Although it considered similar factors in United States v. 40 Moon Hill Road,(47) the First Circuit reached the opposite conclusion on the applicability of Halper.(48) Instead of adopting a case-by-case approach, the court looked to the federal statute authorizing forfeiture of drug offenders' property and decided that, since the statute served primarily remedial goals, its forfeiture provisions were not punitive, and therefore Bill of Rights protections were not implicated.(49)

    In a case decided immediately before...

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