From: Jim Rosenfield Newsgroups: talk.politics.drugs Date: 06 Jul 93 22:02 PDT Subject: Excerpts from SC Ruling:Forfeiture Message-ID: <1484000257@igc.apc.org> 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 Newsgroups: talk.politics.drugs Date: 07 Jul 93 09:24 PDT Subject: NYTimes on SC Forfeiture Decision Message-ID: <1484000259@igc.apc.org> 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: ae446@Freenet.carleton.ca (Nigel Allen) Subject: Department of Justice Statement on Forfeiture Decisions Message-ID: 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 ae446@freenet.carleton.ca