Forfeitures and the Eighth Amendment: A Practical Approach to the Excessive Fines Clause as a Check on Government SeizuresHarvard Law & Policy Review (2017)
Civil forfeiture procedure, notwithstanding reform-oriented legislation in 2000, continues to generate controversy, as it permits law enforcement to seize assets based on alleged or suspected wrongdoing, without adequate protection for property owners. The Supreme Court has consistently upheld them against due process challenges, but in 1998 acknowledged that forfeitures may violate the Excessive Fines Clause of the Eighth Amendment. The test proposed in that case, U.S. v. Bajakajian, was drawn from the Cruel and Unusual Punishment Clause: that a forfeiture violates the Eighth Amendment if it is “grossly disproportional” to the gravity of the offense. This test has been decidedly unhelpful to lower courts, and the various circuits have cast about for more meaningful standards, coming up with a variety of inconsistent tests, none of which give clear guidance.
The courts should instead draw upon the Supreme Court’s treatment of punitive damages cases, where a mathematical formula (a ratio) has been set forth and a guidepost that gives guidance that is both discrete and concrete. Drawing on the Sentencing Guidelines as an objective measure of the “gravity of the offense,” it is a straightforward mathematical exercise to translate the months of incarceration prescribed for any offense into a presumptive limit on the fine, or forfeiture, that can be imposed for that offense. If the courts were to adopt a formula-based approach like this, much as they have for punitive damages cases, lower courts and law enforcement authorities would have a basis for evaluating challenged forfeitures and an objective basis for striking down the excessive ones. A practical approach like this would not only give the Excessive Fines clause force and meaning, it could provide a check on the more extreme forfeitures, and rein in the worst abuses of the procedure.
- eighth amendment,
- excessive fines
Publication DateSummer 2017
Citation Information11 HARV. L. & POL’Y REV __ (2017)