V. The Supreme Court's Misguided Approach

A. The Eighth Amendment Avenue

The Court's break with precedent in the area of civil sanctions appears to have been motivated by the Court's concern with the seeming "disproportionality" of the civil sanctions that were at issue in Halper, Austin, and Kurth Ranch. Indeed, the theme of proportionality runs as a common thread throughout all three of the Supreme Court opinions. However, proportionality is not an interest that traditionally has been the focus of the Double Jeopardy Clause. Instead, the issue of proportionality has always fallen under the umbrella of the Eighth Amendment's Excessive Fines Clause. [FN170]

The Eighth Amendment's Excessive Fines Clause states that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." [FN171] Although the Eighth Amendment has not traditionally been applied to civil actions, [FN172] the Supreme Court held in Austin that its application was *1648 not limited to criminal actions. [FN173] Rather, the Court pointed out that the Eighth Amendment limited "the government's power to punish" [FN174] and, thus, was applicable to civil sanctions in which the damages sought contained a punitive element. [FN175]

If the Supreme Court had stopped at that pronouncement, it would have opened the door for the analysis of proportionality as to all civil sanctions with a punitive edge. In so doing, the Court would have been able to achieve its goal of ensuring that the civil sanction imposed on one individual was directly "proportional" to that individual's crime. [FN176] Unfortunately, the Austin Court did not *1649 stop at such a pronouncement. Instead, in an effort to refute the government's position that the forfeiture in Austin was remedial and, thus, not punishment for purposes of the Eighth Amendment's Excessive Fines Clause, the Austin Court cited Halper for the proposition that, despite the forfeiture's remedial aspects, its deterrent or retributive aspects rendered it punishment. [FN177] By doing so, the Supreme Court implicated the Halper pronouncement that a punitive civil sanction is violative of the Double Jeopardy Clause when imposed in addition to criminal punishment. Such an expansion of Halper was completely unwarranted and unnecessary.

The Double Jeopardy Clause and the Excessive Fines Clause are entirely different clauses, with entirely different workings and purposes. The Double Jeopardy Clause advances the unique interest of protecting people from having to defend themselves a second time against a criminal charge for which they have already been prosecuted. This protection is unique because, unlike other constitutional protections, it allows no exceptions, modifications, or compromises when it is violated. In effect, the attachment of jeopardy under the Double Jeopardy Clause is a complete bar to additional proceedings.

By contrast, the Eighth Amendment's Excessive Fines Clause provides courts with the flexibility to adjust a penalty so as to eliminate a constitutional violation. [FN178] Indeed, under the Excessive *1650 Fines Clause, the government does not altogether forfeit its ability to "punish" merely because the sanction is deemed excessive. [FN179] Instead, the government is entitled to obtain a reduced sanction. [FN180] The judicial flexibility to fashion a constitutional remedy is common to other analogous constitutional protections as well. For example, the Fourth Amendment does not always preclude the introduction of evidence that is obtained in violation of the Search and Seizure Clause. [FN181] Similarly, the Fifth, Sixth, and Fourteenth Amendments subject constitutional violations to a harmless error analysis. [FN182]

In effect, therefore, the judicial flexibility to narrowly tailor constitutional remedies is more the norm than the exception in American constitutional law. Being uniquely rigid in this respect, the Double Jeopardy Clause falls on the exception side of the spectrum. In light of this significant difference between the Double Jeopardy Clause and other analogous constitutional provisions, including the Eighth Amendment's Excessive Fines Clause, the Supreme Court had no basis to conclude or imply in Austin that, under Halper, what constitutes punishment for purposes of the Excessive Fines Clause is the same as what constitutes punishment for purposes of the Double Jeopardy Clause. The fact that Halper narrowly framed the issues that were presented there [FN183] and limited *1651 the import of its holding to the "rare case" [FN184] further weighs against the Court's unwarranted expansion of its holding in that case.

B. The Problem of Proportionality in Civil Sanctions Other Than Civil Forfeitures

The Court's method of measuring proportionality is as flawed as the Court's reliance on the Double Jeopardy Clause for the purpose of evaluating proportionality. In the Court's opinion, a civil sanction that exceeds the government's costs in connection with the underlying crime is disproportional. Thus, the Supreme Court's yardstick for proportionality is the amount of costs incurred by the government in its prosecution of each civil sanction.

The principle of proportionality, as expressed in the Eighth Amendment's Excessive Fines Clause, protects individuals from being punished in excess of what is proper, given the nature of the offense. [FN185] Thus, the concept of proportionality is not concerned with the relative costs of prosecuting an individual, [FN186] but rather with making sure that a sanction does not exceed in severity or gravity the corresponding offense. Therefore, the Court's focus on the relative value of the sanction as a measure of proportionality simply has no foundation in law.

The Court also focused on the government's costs in measuring the remedial effects of the civil sanctions at issue. [FN187] However, the Court missed the mark with this approach as well. If a civil sanction is to serve remedial purposes at all, it must compensate society for the costs inflicted upon society as a result of the underlying act. Contrary to the Supreme Court's unsupported conclusion, those costs are not necessarily equivalent to the costs incurred by the government in prosecuting the action. At most, *1652 such costs make up one factor of the resulting societal costs.

C. The Problem of Proportionality in Civil Forfeitures

The Court's analysis of proportionality is similarly erroneous when applied to civil sanction cases involving civil forfeiture. Because of the nature of the latter cases, the concern with the proportionality of punishment plays a less significant role in civil forfeiture cases than in cases involving other types of civil sanctions. [FN188]

In rem civil forfeiture has traditionally been justified on the grounds that the property owner has been guilty of negligence either by using the property wrongly himself, or by allowing someone else to use it so. [FN189] Thus, in rem civil forfeiture is based on the notion that society should be permitted to recover a form of liquidated compensation for the damages caused to society by an owner's negligent or wilful actions. [FN190] Such liquidated damages take concrete form in the forfeited item and are strictly restitutionary in principle.

There is no question that, at times, the measure of liquidated damages recovered through forfeiture may appear to cross the line between restitution and penalty, such as in cases in which the resulting societal costs of the offense appear to be less than the value of the forfeited property. [FN191] Nevertheless, as it is typically the case *1653 in other areas of the law, the risk of uncertainty regarding the actual amount of damages caused by an owner's negligent or wilful acts should not fall upon society, but rather upon the party whose conduct created the uncertainty. [FN192] After all, it is that party, and not the rest of society, who has the ability to control the value of the property that is utilized for the illegal enterprise. Thus, it is that party, and not the rest of society, who has the incentive to properly allocate the risks created by the illegal enterprise and to minimize the exposure generated thereby. It is entirely equitable, therefore, for society to place the danger of disproportionality that arises from the forfeiture of expensive items on the owner who negligently or willingly allows his property to be used in connection with criminal activity. [FN193]

The civil forfeiture provisions of the Drug Control Act appropriately allocate the risks of societal injury on the party who is most able to prevent those risks from materializing. It also quite properly places the risk of uncertainty on that party. Therefore, the civil forfeiture provisions of the Drug Control Act are adequately structured to provide restitution to society for those injuries that are caused when a property owner negligently or wilfully allows his property to be utilized for illegal purposes. [FN194]

Through Austin, however, the Supreme Court has upset this system of risk allocation. By casting doubt on the government's ability to seek the forfeiture of proceeds and derivative proceeds, and by altogether barring the government from obtaining the measure of liquidated damages to which it is entitled in its representative capacity through the forfeiture of derivative *1654 contraband or instrumentalities of the drug trade, the Supreme Court has effectively and conclusively shifted the risks associated with the drug trade to the persons least able to manage such risks - society. Moreover, by requiring the government to demonstrate that a civil forfeiture is strictly remedial, the Supreme Court has unreasonably put the risk of disproportionality on the government and, therefore, on society, rather than on the party whose actions created the uncertainty. [FN195] Such an outcome not only lacks any reasonable or equitable basis, but is contrary to modern notions of risk allocation which have been long-accepted by the law. [FN196]

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[FN170]. See, e.g., Alexander v. United States, 113 S.Ct. 2766, 2775 n.3 (1993) ("This sense of disproportionality animates much of petitioner's First Amendment arguments as well. Questions of proportionality, however, should be dealt with directly and forthrightly under the Eight Amendment, and not be allowed to influence sub silentio courts' First Amendment analysis."). Notwithstanding the Court's announcement in Alexander, the Supreme Court allowed the question of proportionality to influence sub silentio the resolution of Double Jeopardy issues in Halper, Austin, and Kurth Ranch.

[FN171]. U.S. Const. amend. VIII.

[FN172]. See, e.g., Browning-Ferris Inds. v. Kelco Disposal, Inc., 492 U.S. 257 (1989); United States v. Tax Lot 1500, 861 F.2d 232, 234-35 (9th Cir. 1988), cert. denied sub nom. Jaffe v. United States, 493 U.S. 954 (1989).

[FN173]. Austin, 113 S.Ct. at 2804-06; see also Kurth Ranch, 114 S.Ct. at 1944-45.

[FN174]. Austin, 113 S.Ct. at 2805.

[FN175]. Id.

[FN176]. Civil forfeiture under the Drug Control Act has involved property that was only tangentially or fortuitously involved in the commission of the underlying crime. See, e.g., United States v. 42450 Highway 441, 920 F.2d 900 (11th Cir. 1991) (condominium forfeited because sale of drugs took place there at insistence of undercover drug agent); United States v. 916 Douglas Avenue, 903 F.2d 490 (7th Cir. 1990) (forfeiture of house deemed appropriate on the basis that telephone call in which drug deal was negotiated was received at the house, even though drug deal was consummated elsewhere), cert. denied, 498 U.S. 1126 (1991); United States v. Santoro, 866 F.2d 1538 (4th Cir. 1989) (forfeiture of house and adjoining twenty-six acres of land, which were separated from the house by a road, was allowed because owner sold a small quantity of drugs near the house); United States v. One 1977 Cadillac Coupe De Ville, 644 F.2d 500 (5th Cir. 1981) (car forfeited after transporting people to drug sale even though no cash or contraband had been transported in the car); United States v. One 1975 Mercedes 280S, 590 F.2d 196 (6th Cir. 1978) (forfeiture of car allowed because four marijuana cigarette butts were found in ashtray, despite no evidence that car had been used to transport drugs); United States v. One 1974 Cadillac El Dorado, 548 F.2d 421 (2d Cir. 1977) (forfeiture of car found proper where owner had driven his friend to a house for a drug buy despite no evidence that car had been used to transport drugs). However, such cases do not present a problem of "proportionality," but rather raise the issue of whether the property was forfeitable at all given the lack of a direct nexus between the property and the crime. It clearly is incumbent upon the courts to develop workable standards which ensure that only property with the most direct involvement in the drug trade is subject to forfeiture. See Austin, 113 S.Ct. 2801, 2815 (Justice Scalia suggests in his concurrence that "[t]he question [of proportionality] is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.").

[FN177]. Id. at 2806 (quoting Halper, 490 U.S. at 448).

[FN178]. See, e.g., United States v. Bieri, 21 F.3d 819, 824 (8th Cir. 1994) ("If the district court determines that the forfeiture constitutes an unconstitutionally excessive fine ... the district court may then order forfeiture of less than the whole in an effort to preserve the forfeiture by tailoring it to fit within the broad boundaries of constitutional proportionality."), cert. denied, 115 S.Ct. 208 (1994); United States v. Sarbello, 985 F.2d 716, 724 (3d Cir. 1993) (government's failure to rebut evidence of gross disproportionality under the Eighth Amendment would result in "judicial mitigation of the forfeiture commensurate with the nature of the crime"); United States v. Busher, 817 F.2d 1409, 1416 (9th Cir. 1987) ("If ... the court finds ... [that the forfeiture is excessive], it must limit the forfeiture to such portion of the interest as it deems consistent with these principles; or it may condition the forfeiture upon payment of such sum or relinquishment of such other property as seems just under the circumstances; or it may limit or eliminate other punishment it would otherwise impose so as to bring the total sanction within constitutional boundaries.").

[FN179]. See supra note 178.

[FN180]. Id.

[FN181]. See, e.g., Florida v. Jimeno, 500 U.S. 248 (1991) (evidence admissible if police officer has good faith believe in its right to perform the search).

[FN182]. See, e.g., Arizona v. Fulminante, 499 U.S. 279 (1991) (admission of coerced confession harmless error); Delaware v. Van Arsdall, 475 U.S. 673 (1986) (violation of Confrontation Clause right can be harmless error); Coleman v. Alabama, 399 U.S. 1 (1970) (denial of counsel at preliminary hearing can be harmless error); Yates v. Evatt, 500 U.S. 391 (1991) (taint of unconstitutional burden-switching instruction subject to harmless error analysis).

[FN183]. The Court framed the issue in Halper as whether "a civil penalty may constitute punishment for purpose of the Double Jeopardy Clause." 490 U.S. at 446.

[FN184]. Id. at 449.

[FN185]. See supra note 130.

[FN186]. Although proportionality certainly can be a factor to be considered in determining the seriousness of the individual's crime.

[FN187]. See Halper, 490 U.S. at 439, 449-52; Kurth Ranch, 114 S.Ct. at 1945-46.

[FN188]. Thus, while the concern with proportionality may be appropriate in cases like Halper and Kurth Ranch, the two civil sanction cases that involved fines and taxes, proportionality should not influence cases like Austin, which involve civil forfeitures.

[FN189]. Austin, 113 S.Ct. at 2808-10.

[FN190]. Rufus Waples, A Treatise on Proceedings in Rem 22 (1882):

It is a presumption of law that every owner knows his own property and also knows what use is made of it and what obligations rest upon it by his character or acts, or his expressed or implied contracts; and he, (if not an enemy,) is privileged to appear, claim his property and defend for it against the charges.

[FN191]. An example of this is when the owner of the property uses valuable property or allows such property to be used in the commission of a minor offense.

[FN192]. See, e.g., Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 265 (1946) (involving antitrust violations); SEC v. MacDonald, 699 F.2d 47, 55 (1st Cir. 1983) (involving securities violations); Elkind v. Liggett & Myers, Inc., 635 F.2d 156, 171 (2d Cir. 1980).

[FN193]. It should be noted that the Drug Control Act provides exceptions for innocent owners and, in that sense, is much more generous than modern tort theories of strict liability. See supra note 80 and accompanying text.

[FN194]. The Supreme Court in Austin reasoned that the innocent owner exception to the Drug Control Act pointed to the conclusion that the statute was punitive. See supra note 129 and accompanying text.

[FN195]. The Court noted:

Where a defendant previously has sustained a criminal penalty and the civil penalty sought in a subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as "punishment" in the plain meaning of the word, then the defendant is entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment.

Halper, 490 U.S. at 449-50.

[FN196]. William Prosser & W. Page Keeton, The Law of Torts 536 (5th ed. 1984):

[T]he last hundred years have witnessed the overthrow of the doctrine of "never any liability without fault," even in the legal sense of a departure from reasonable standards of conduct. It has seen a general acceptance of the principle that in some cases the defendant may be held liable, although he is not only charged with no moral wrongdoing, but has not even departed in any way from a reasonable standard of intent or care.

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