Defining Excessiveness: Applying the Eighth Amendment to Civil Forfeiture after Austin v. United States

In 1971, agents of the federal government seized a $20,000 yaught after finding a small quantity of marijuana on board. Ten years later government agents confiscated a twenty-eight foot boat that held drugs consisting of one marijuana twig and two marijuana leaves. Since then, the government has taken possession of a $250,000 home because a drug transaction occurred in a car parked in the driveway and of a smaller dwelling because the owner used the telephone inside to set up a drug deal at another location. In another incident, local, county, state, and federal agents shot and killed the owner of a Malibu, California ranch during a raid on the property. The government excused its actions on the mistaken assumption that the owner had grown marijuana on the land, but the Ventura County District Attorney\u27s office concluded that “the Los Angeles County Sheriff\u27s Department was motivated, at least in part, by a desire to seize and forfeit the ranch for the government.” Actions like these, even when they involve citizens who cannot be characterized as completely innocent, have fueled recent criticism of civil forfeiture statutes. The statistical evidence of forfeiture actions supports the anecdotal evidence of aggressive enforcement. Since 1984, government agencies have executed more than 200,000 forfeiture actions. The value of these forfeitures has increased each year, with the federal government seizing cash and property with a total value of $580 million in 1989, compared with $207 million in 1988 and $94 million in 1986. By most estimates, forfeitures have added over $1 billion to state and federal budgets since the mid-1980s. The Department of Justice asset-sharing program split approximately $826 million in cash and property in one five-year period. The government generated these resources with relatively little effort. In more than eighty percent of civil forfeiture cases, neither the state nor the federal government ever charges the potential claimant with a crime, and because indigent property owners, unlike indigent defendants, do not receive court-appointed attorneys, many feel that they cannot afford to reclaim the property. Under ever-increasing budget constraints, “(l)aw enforcement on the federal, state and local levels became increasingly dependent on the much-needed revenue generated under these statutes.” Yet as agencies increased their dependence on forfeiture, well-publicized confiscations focused attention on these actions and led to calls for reform. As the use of forfeiture increased, even government officials began to recognize the possibility of mixed priorities in the forfeiture programs. After the Malibu, California ranch seizure, California redrafted its forfeiture laws to require a criminal conviction. Legislators in the state of Washington have also considered various proposals to control enforcement of forfeiture laws, such as setting a seizure minimum to confine the use of the law to property connected with major drug dealers. On the federal level, Representative Henry Hyde, a Republican from Illinois, and Representative John Coyners, Jr., a Democrat from Michigan, each proposed legislation designed to limit forfeiture abuses, although a review proposed by Attorney General Janet Reno preempted their efforts. Similarly, the Administrative Conference of the United States attempted to address what it considered a “fundamental issue about the fairness and effectiveness of the entire administrative civil seizure/forfeiture process,” by recommending the establishment of a Central Forfeiture Registry and time limits to provide better notice to claimants a considerably watered-down version of the original proposal. Initially, legal arguments for reform met with little success. Courts felt unable to control law enforcement agencies, given the permissive language of the statutes and the presumed inapplicability of most constitutional protections in the civil context. By 1993, only one circuit court had declared that forfeitures could sometimes rise to such a level as to violate the Eighth Amendment. Other circuits expressed dissatisfaction with the law but apparently felt bound to allow all seizures in which the government had met the statutory requirements. In Austin v. United States, the Supreme Court reversed this trend by unanimously holding that the lower courts could overturn civil forfeitures on the grounds that they constituted constitutionally excessive fines, and by directing the inferior courts to establish a test for excessiveness. This Article surveys the approaches taken by courts in fashioning a test to satisfy Austin. It begins with a brief overview of the applicability of the Eighth Amendment in general, especially the Excessive Fines Clause, and a review of the reasoning which led the Supreme Court to apply the Eighth Amendment to civil forfeiture cases. This Article then examines the scope of the Austin decision, including the difficult question of its applicability to proceeds of criminal activity. It also discusses the emerging issue concerning the ability of the courts to mitigate the severity of forfeitures. The main body of the paper reviews the two primary tests for excessiveness which have emerged from the lower courts and endorses a test based on a combination of the two as best comporting with the requirements of the Excessive Fines Clause of the Eighth Amendment