HaCKeRz Kr0nlcKLeZ 1/HaCKeRz Kr0nlcKLeZ.iso/drugs/forfeiture.ruling.2

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From: Jim Rosenfield <[e-mail]>
Newsgroups: talk.politics.drugs
Date: 06 Jul 93 22:02 PDT
Subject: Excerpts from SC Ruling:Forfeiture
Message-ID: <[e-mail]>

Excerpts from Ruling on Seizure of Property

New York Times, Washington, June 28

Following are excerpts from the Supreme Court's unanimous decision
today finding that Lhe Eighlh Amendment ban on excessive fines
requires that there be a relationship between the seriousness of an
offense and the property that is taken. Tbe decision, in Austin v.
United States, was unanimous. Justice Harry A. Blackmun wrote the
majority opinion, and Justices Antonin Scalia and Anthony M.
Kennedy wrote concurrences.

BY JUSTICE BLACKMUN, For the Court

In this case, we are asked to decide whether the Excessive Fines
clause of the Eighth Amendment applies to forfeitures of property
under 21 U.S.C, Sections. Sections 881(a)(4) snd (a)(7). We hold
that lr does and therefore remand the case for conslderatlon of the
question whether the forfeiture at issue here was excessive.

The purpose of the Eighth Amendment .... was to limit the
Government's power to punish. The Cruel and Unusual Punishments
Clause is self-evidently concerned with punishment. The Excessive
Fines Clause limits the Government's power to extract payments,
whether in cash or in kind. "as punishment for some offense... ."
Thus, the question is not, as the United States would have it,
whether forfelture under Sections Sections 881(a)(4j and la)(7) aIs
civil or criminal, but rather whether it is punishment.

In consldering this question we are mindful of the fact ihat
sanctions frequently serve more than one purpose.  We need not
exclude the possibility that a forfeiture serves remedal purposes
to conclide that it is subject to the limitations of the excessive
Fines Clause. We, however, must determine that it can only be
explained as serving in part to punish....

We turn next to consider whether forfeitures under 21 U.S.C.
Sections Secyions 881(a)(4) and (a)(?) are properly considered
punishment today.  We find nothing in these provisions or their
legislative history to contradict the historical understanding of
forfeiture as punishment. Unlike traditional forfeiture
statutes,Sec(ions Sections 881(a)(4) and (a)(7) expressly provide
an "innocenl owner" defense.

These exemptions serve to focus the provisions on the culpability
of the owner in a way tha~ makes them look more like punishment,
not less.  In United States v. United States Coin & Currency, we
reasoned that 19 U.S.C. Sections 1618, which provides that the
Secretary of the Treasury is to return the property of those who do
not intend to violate the law, demonstrated Congress' intent "to
impose a penalty only on those who are significantly involved in a
criminal enterprise. " .

Furthermore, Congress has chosen to tie forfeiture directly to the
commission of drug offenses. Thus, under sections 881(a)(4) a
conveyance is forfeitable of ot os ised or intended for use to
facilitate the transportation of controlled substances, rhelr raw
materials or the equipment used ts manufacture or distribute them.
Under Sections 881(a)()), real properly is forfeitable if it is
used or intended for use to facilitate the commlssion of a
drug-related crime punishable by more than one year's imprisonment.


The legislative history ol Sections 881 confirms the punitive
nature of these provisions. When it added subsection(a)(7) to
subsections 881 in 1984, Congress recognized that the traditional
criminal sanctions of fine and imprisonment are inadequate to deter
the enormously profitable trade in dangerous drugs." It
characterized the forfeiture of real property as "a powerful
deterrent...."

The Government argues that Sections 881(a)(4) and (a)(7) are not
punitive but, rather, should be considered remedial in two
respects. First, they remove the "instruments" of the drug trade.
"thereby protecting the community fromthe threat of continued drug
dealing."

Second, the forfeited assets serve to compensate the Government for
the expense of law-enforcement activity and for its expenditure on
societal problems such as urban blight, drug
addiction and other health concerns resulting from the drug
trade..."

In our view, neither argument withstands scrutiny. Concededly, we
have recognized that the forfeiture of contraband itself may be
characterized as remedial because it removes dangerous or illegal
items from society.  The Court, however, previously has rejected
Government's attempt to extend that reasoning to conveyances used
to transport illegal ilguor. It noted. "There is nothing even
remotely criminal in possessing an automobile."

The same, without question, is true of the properties involved
here, and the Government's attempt to characterize these
properties as "lnstruments" of the drug trade must meet the same
fate as Pennsylqanla's effort to characterize the 1958 Plymourh
sedan as "contraband."

The Government's second argument about the remedial nature of this
forfeiture is no more persuasive. We previously have upheld the
forfeiture of goods involved in customs vtolations as "a reasonable
form of liquidated damages.  But the dramatic variations in the
value oif conveyances and real property forfeitable under Sections
Sections 881(a)(4) and (a)(7) undercut any similar argument with
respect to those provisions.

Fundamentally. even assuming that Sections Sections 881(a)(4) snd
(a)(7) serve some remedial purpose, the Government's argument must
fail. "[A] civil sanction that cannot fairly be said solely to
serve a remedial purpose, but rather can only be explained as also
serving elther retributive or deterrent purposes, is
punishment, as we have come to undersland the term."  In light of
the historlcal understanding of forlelture as punishment, the clear
focus of Sections Sections 881(a)(4) and (a)(?) on the culpability
of the owner, and he evidence that Congress understood those
provisions as serving to deter and to punish, we cannot conclude
that forfeiture under Sections Sections 881(a)(4) and (a)(7) serves
solely a remedial purpose.

We therefore conclude that forfeiture under these provisions
constitutes "payment to a sovereign as punishnlent for some
offense," Browning-Ferris, 492 U.S., at 265, and, as such, is
subject to the limitations of the Eight Amendment's Excessive Fines
Clause.

BY JUSTICE SCALIA, Concurring
We recently stated that, at the time the Eighth Amendment was
drafted, the term "fine" was "understood to mean a payment to a
sovereign as punishment for some offense." It seems to me that the
Court's opinion obscures this clear statement, and needlessly
attempts to derive from our sparse case law on the.subject of _in
rem_ forfeiture the questionable proposition that the owner of
property taken pursuant to such forfeiture is always blameworthy.

I write separately to explain why I consider this forfeiture a
fine, and to point out that the excessiveness inquiry for statutory
_in rem_ forfeitures is different from the usual excessiveness
inquiry.

That this forfeiture works as a fine raises the excessiveness
issue, on which the Court remands. 1 agree that a remand is in
order, but think it worth pointing out that on remand the
excessiveness analysis must be different from that applicable to
monetary fines and, perhaps, to in personal forfeitures. In the
case of a monetary fine, the Eighth Amendment's origins in the
English Bill of Rights, intended to limit the abusive penalties
assessed against the King's opponents, demonstrate that the
touchstone is value of the fine in relation to the offense....

Here, however, the offense of which petitioner has been convicted
is not relevant to the forfeiture. Section Sections 881 requires
only that the Government show probable cause that the suhject
property was used for the prohibited purpose.  The burden then
shifts to the property owner to show, by a preponderance of the
evidence, that the use was made without his "knowledge, consent or
willful blindness."

Unlike monetary fines, statutory _in rem_ forfeitures have
traditionally been fixed, not by determining the appropriate value
of the penalty in relation to the committed offense, but by
determining what property has been "tainted" by unlawful use, to
which issue the value of the property is irrelevant. Scales used
to measure out unlawful drug sales, for example, are confiscable
whether made of the purest gold or the basest metal.

But an _in rem_forfeiture goes beyond the traditional limits that
the Eighth Amendment permits if it applies to property that cannot
properly be regarded as an instrumentality of the offense - the
building, for example in which an isolated drug sale happens to
occur.  Such a confiscation would be an excessive fine. The
question is not how much the confiscated property is worth, but
whether the confiscated property has a close enough relationship to
the offense.

BY JUSTICE HENNEDY, Concurring

In recounting the law's history, we risk anachronism if we
attrihute to an earlier time an intent to employ legal concepts
that had not yet evolved. I see something of that in the Court's
opinion here, for in its eagerness to discover a unified theory of
forfeitures, it recites a consistent rationale of personal
punishment (hat neither the cases nor other narratives of the
common law suggest.
For many of the reasons explained by Justice Scalia, I am not
convinced that all _in rem_ forfeitures were on account of the
owner's blameworthy conduct. Some impositions of _in rem_
forfeiture may have been designed either to remove property that
was itself causing injury, or to give the court jurisdiction over
an asset that it could control in order to make injured parties
whole.

At some point we may have to confront the constitutional question
whether forfeiture is permitted when the owner has committed no
wrong of any sort, intentional or negligent. That for me would
raise a serious question. Though the history of forfeiture laws
might not be determinative of that issue, it would have an
important bearing on the outcome. I would reserve for that or some
other necessary occasion the inquiry the Court undertakes here.
With these observations, I concur in part and concur in the
judgment.

=============================================================================

From: Jim Rosenfield <[e-mail]>
Newsgroups: talk.politics.drugs
Date: 07 Jul 93 09:24 PDT
Subject: NYTimes on SC Forfeiture Decision
Message-ID: <[e-mail]>

  Justices Restrict Ability to Seize Suspects' Goods

  By STEPHEN LABATON .

  Special to The New York Times

  WASHINGTON, June 28 - In a significant setback for prosecutors, the
  Supreme Coult ruled unanimously today that the Constitution limits the
  Government's authority to seize the homes, businesses and other property
  of criminals and suspects. Rejecting the Justice Department's
  argument in two cases, the Court found that the Eighth Amendment clause
  that bars "excessive fines" requires that there must be some
  relationship between the gravity of an offense and the property that is
  seized.

  The Justices were divided about the smaller complexities of the cases
  and whether the First Amendment could be applied to limit Lhe seizure of
  books and other material in an obscenity case.

  But their general and unopposed holding about the application of the
  Eighth Amendmeni to the area signals a new direction for criminal and
  civil procedures that govern when dnd how the government can confiscate
  items like cars from suspected drug smugglers; businesses from accused
  mobsters and cash from alleged money launderers.

  The Government had argued that forfelture actions are not punitive but
  "remedlal" and that the guilt or innocence of the properly owner is
  "constitutionally irrelevant."  The Court did not decide whether the
  owner's innocence is relevant or even spell out when the Eighth
  Amendment is violated. Instead, it sent the cases back to the lower
  courts to devise their own rules about when the seizure of assets is
  unconstitutionally excessive. In so doing, the justices virtually
  guaranteed that they would have to revisit an issue they did not address
  in today's ruling.

  In one case the Court narrowly rejected a First Amendment challenge to
  the Government's seizure authorlty under the Federal racketeering law.
  The Justices decided by a vote of 5 to 4, ruling that the First
  Amendment did not prohibit prosecutors from taking an entire chain of
  adult bookstores and movie houses and then destroying thousands of books
  and other material after finding several obscene items for sale.

  Powerful New Tool

  Nonetheless, the Eighth Amendment precedent set in both cases gives
  defendants a powerful new tool for fighting back when the Government
  seizes properly, an action that often occurs even before there is a
  conviction. It was the end of a difficult Supreme Court term (or
  prosecutors in a rapidly growing area of the law, and it demonstrated
  the Justices' concern with the increas aggressive use of forfeiture
  laws.

  In two other cases decided earlier this term, and on narrower grounds,
  the Court limited the aurhority of prosecutors to seize money, homes,
  cars and other assets from drug dealers, white-collar criminals,
  mobsters, illegal aliens and people suspected of commiting crimes. And.
  in March, the Court agreed to decide whether the Government csn seize
  property that has been used in drug crimes without giving the owner
  advance notice and a chance to contest the action in a hearing. That
  case will be heard next term.

  Prosecutors have increasingly used forfeitures since the mid-1980's,
  when Congress began to adopt more laws that broadened their authority
  against drug smugglers, money launderers and savings and loan executives
  suspected of looting their insritutlons. By the end of 1992 the Federal
  Covernment had seized S2 billion in property, up from S33 million in
  1979.  Property worth billions more have been sold at auction.

  Attacks in Congress

  The procedure for forfeitures that critics and Civil liberties groups
  contend unfairly favors the Government has recently come under attack
  from conservative Republicans like Representative Henry J. Hyde of
  Illionois, as well as liberal Democrates like Representative John
  COnyers, Jr., of Michigan.  Mr. Hyde has introduced legislation and Mr.
  COnyers is drafting a bill which would make it more difficult for
  prosecutors to take property.

  In on case decided today, a North Dakota man had lost his car-repair
  business and his mobile trailer after selling two grams of cocaine to an
  undercover agent. The Government had disputed the contention of the
  defendant, Richard Lyle Austin, that the seizure under a civil
  forfeiture law had violated the "excessive fines" clause.

  The Government maintained that the Federal laws that gave it the
  authority to take Mr, Austin's home and business were remedial because
  they were intended to permit the removal of tools of the drug trade. It
  had also said the seizure was a proper way of repaying the government
  for the expense of law enforcement.

  Justice Harry A. Blackmun, who wrote the Court's unanimous opinion in
  the case. Austin v. United States, found that the Eighth Amendment
  applied to both civil and criminal proceedings and that the forfeiture
  laws had been intended at least in part to punish the property owner.

  Property as Wrongdoer

  While common sense may make that conclusion seem obvious, courts have
  generally employed a legal fiction that have made the proposition
  debatable.  The fiction is that the property, not the individual, is the
  wrongdoer, a concept That has enabled the Government to impose a grealer
  procedural burden on the property owners and make their guilt
  irrelevant.

  But Justice Blackmun's opinion which was also signed by Justices Byron
  R. While, John Stevens, Sandra Day O'Connor and David H. Souter,
  appeared to question the use of legal fiction as a matter of
  constitutional law.

  "If forfeiture had been understood not to punish the owner, there would
  have been no reason to reserve the case of a truly innocent owner,"
  Justice Blackmun said. "Even though this Court has iejected the
  'innocence' of the owner as a common-law defense to forfeilure, it
  conslstently has recognized that forfeiture serves, at least in part, to
  punish the owner."

  In a concurring opinion. Justice Anlonin Scalia said the measure of a
  forfeiture's excessiveness should be the relationship between the seized
  property and the offense. Justice Anthony M. Kennedy also wrote a
  concurring opinion in which he questioned Justice Blackmun's reading of
  the hlstory of forfeiture laws. He was joined by Chief Justlb William H.
  Rehnquist and Justice Clarence Thomas.

  2 Arguments Raised

  In the second case, Alexander v. United Staets, the owner of a chain of
  adult bookstores and movie houses forfelted hls businesses and almost $9
  million in proflts after he was convict of racketeering by selling
  obscene material.  The defendant, Ferris J. Alexander of Minnesota, had
  raised the Eighth Amendment argument. He had also maintained that the
  seizure violated his First Amendment rights by taking and then
  destroying thousands of copies of books and other materials that were
  not obscene. While unanimously upholding his Eighth Amendment claim, the
  Court in an opinion written by Chief Justice Rhenquist, rejected the
  First Amendment argument by a vote of 5 to 4.

  In dissent, Justice Kennedy said the Court's decision was "a grsve
  repudiation of First Amendment principles." "Until now, I had thought
  one could browse through any book or film store in the United States
  without fear that the proprietor had chosen each item to avoid risk to
  the whole inventory, and Indeed to the business itself," Justice Kennedy
  wrote. "This ominous, onerous threat undermines free speech and press
  principles essential to our personal freedom."

  Justice Kennedy's opinion was joined by Justices Blackmun and Ste-
  vens. In a separate opinion, Justice Souter agreed with the majority
  that there was no impermissible prior restraint. But he also agreed with
  the  dissent that the First Amendment forbids the forfeiture of any
  material that is not found to be obscene.



=============================================================================

Newsgroups: misc.legal,talk.politics.drugs,alt.law-enforcement
From: [e-mail] (Nigel Allen)
Subject: Department of Justice Statement on Forfeiture Decisions
Message-ID: <[e-mail]>
Date: Fri, 2 Jul 1993 08:27:20 GMT


 Disclaimer: I don't work for the U.S. Department of Justice.

Here is a press release from the U.S. Department of Justice.

I downloaded the press release from the PR On-Line BBS in
Maryland at 410-363-0834.

 Department of Justice Statement on Two Decisions by the Supreme
Court on Asset Forfeiture
 To: National Desk, Legal Writer
 Contact: Dean St Dennis of the Justice Department, 202-514-2007

   WASHINGTON, June 28  -- The following is a statement issued
by the Department of Justice on two decisions by
the Supreme Court today on asset forfeiture:

   The Supreme Court held today in Austin v. United States that the
Eighth Amendment's prohibition against excessive fines, previously
understood as applying only in criminal forfeiture cases, also
applies in civil forfeiture cases.  The court remanded the case to
the Court of Appeals for a determination of whether the particular
forfeiture constituted an excessive fine.  In doing so, it provided
no test for the lower court to use in making such a determination.
    The Department of Justice believes that the particular
forfeiture in question, the forfeiture of a mobile home and auto
body shop used for the unlawful distribution of cocaine, will not
be found to be excessive.  The department has exercised restraint
in enforcing civil forfeiture laws, and will continue to do so.  It
does not expect the Austin decision to have any significant effect
on the day-to-day operations of the forfeiture program.
   The department is pleased with the holding of the Supreme Court
in Alexander v. United States, that the forfeiture of business
assets where the business has engaged in the distribution of
pornography, pursuant to the RICO forfeiture statute, is not
violative of the First Amendment.  The court remanded the case to
the Court of Appeals for a determination of whether there had been
a violation of the excessive fines clause, consistent with its
holding in Austin.  The department believes that the lower court
will find that the particular forfeiture did not constitute an
excessive fine under the totality of the circumstances involved in
the case, and does not anticipate any significant change in day to
day operations resulting from this decision either.
 -30-


--
Nigel Allen, Toronto, Ontario, Canada  [e-mail]