Newsgroups: talk.politics.drugs From: [c--se--l] at [world.std.com] (Bernie Cosell) Subject: SC decision on forfeiture Date: Tue, 6 Jul 1993 22:59:37 GMT There seems to be a fair bit of misinformation floating around about the recent SC decision about statutory forfeiture [Austin v US]. The most commonly voiced hope is that they declared statutory forfeiture as unconstitutional via the 8th. Nothing could be further from the truth! The court observed that such forfeitures date back hundreds of years in English law, and related forfeiture mechanisms "... are traceable to Biblical and pre-Judeo-Christian practices...". The point is to establish that such forfeitures are not some new innovation on the part of overenthusiastic legislators or some offensive attack on the Bill of Rights or anything of the kind: statutory forfeiture was a venerable and accepted legal remedy. In the decision, the court quoted from J Hendry Co v Moore [1943]: ... long before the adoption of the Consitution the common law courts in the Colonies and later in the states during the period of Confederation were exercising jurisdiction in rem in the enforcement of [English and local] forfeiture statutes... Further, they pointed out that the *First*Congress* passed the first in-rem forfeiture laws. In sum: you folks who are holding out in the hope that the SC will strike down statutory forfeiture don't have a prayer. Further, there a regular complaint here that the idea of forfeiting property without some attendant criminal conviction[*] is a clear violation of the Constitution, that it is somehow a recently invented abomination. Unfortunately, this is WAY off the mark. The court wrote: The same understanding of forfeiture as punishment runs through our cases rejecting the -innocence- of the owner as a common-law defense to forfeiture. See, e.g., Calero-Toledo, 416 U. S., at 683; Goldsmith-Grant Co. v. United States, 254 U. S. 505 (1921); Dobbins's Distillery v. United States, 96 U. S. 395 (1878); United States v. Brig Malek Adhel, 2 How. 210 (1844); The Palmyra, 12 Wheat. 1 (1827). In these cases, forfeiture has been justified on two theories-that the property itself is -guilty- of the offense, and that the owner may be held accountable for the wrongs of others to whom he entrusts his property. Both theories rest, at bottom, on the notion that the owner has been negligent in allowing his prop- erty to be misused and that he is properly punished for that negligence. The idea of forfeiture without any legal action taken against the owner [directly] is pretty clearly 'settled law'. [*] in fact, as has been observed, there is not even any need that any *charges* be filed against *anyone* --- the forfeiture is an action independent of other criminal and civil actions and proceeds on its own]. What *did* the SC decide? Only that statutory forfeiture _can_be_ considered "punishment", and so may be subject to eighth amendment review for being an "excessive fine". There are several points to emphasize here: 1) they didn't actually say *anything* about the case at hand, other than that the lower courts should reconsider the matter [the Appeals Court for the Eighth circuit had turned down Austin's appeal because they asserted [this is the Eighth circuit appeals court writing now]: -We are constrained to agree with the Ninth Circuit that `[i]f the constitution allows in rem forfeiture to be visited upon innocent owners . . . the constitution hardly requires proportionality review of forfeitures.' The Supreme Court has only asserted that in rem forfeitures can be punishments, and so the Eighth should take the matter up again. [but do note the matter-of-fact assertion about allowing such forfeitures to be visited upon innocent owners!] 2) The Supreme Court has given the Eight circuit *NO* guidance in this matter: Austin asks that we establish a multifactor test for determining whether a forfeiture is constitutionally -excessive. ... We decline that invitation. Although the Court of Appeals opined -that the government is exacting too high a penalty in relation to the offense committed,- 964 F. 2d, at 818, it had no occasion to consider what factors should inform such a decision because it thought it was foreclosed from engaging in the inquiry. Prudence dictates that we allow the lower courts to consider that question in the first instance. So it isn't clear what the next step will be, although from what I saw of the snips of the Eighth circuit appeal [quoted in the SC opinion], it does seem that the Eighth *does* consider this to be an excessive fine... on the other hand, the Justice department hasn't had the opportunity to make its case about this yet so who knows. 3) The actual technical question in this case is whether a statutory forfeiture can be considered a 'fine' and so come within the purview of the "excessive fines" clause of the 8th. They decided that it can. BUT: they took explicit notice that such fines are beyond the scope of the fifth and sixth amendments. [In particular, they noted: "The protections provided by the Sixth Amendment are explicitly confined to -criminal prosecutions."] 4) You might have seen that the Justice Department has already made a statement supporting the notion that the forfeiture was not excessive. There is clearly going to be a fight about this one, still, and it may well find its way back to the SC. /Bernie\ -- Bernie Cosell [c--se--l] at [world.std.com] Fantasy Farm Fibers, Pearisburg, VA (703) 921-2358