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Supreme Court Decision
Austin v. U.S.
A Civil Forfeiture Case
Jun 28, 1993

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

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

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

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

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

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.


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

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