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