United States v. Bajakajian
No. 96-1487
Argued November 4, 1997
Decided June 22, 1998
524 U.S. 321
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Syllabus
After customs inspectors found respondent and his
family preparing to board an international flight carrying $357,144, he
was charged with, inter alia, attempting to leave the United States
without reporting, as required by 31 U.S.C. § 5316(a)(1)(A), that
he was transporting more than $10,000 in currency. The Government
also sought forfeiture of the $357,144 under 18 U.S.C. §
982(a)(1), which provides that a person convicted of willfully
violating § 5316 shall forfeit "any property . . . involved in
such an offense." Respondent pleaded guilty to the failure to
report, and elected to have a bench trial on the forfeiture. The
District Court found, among other things, that the entire $357,144 was
subject to forfeiture because it was "involved in" the offense, that
the funds were not connected to any other crime, and that respondent
was transporting the money to repay a lawful debt. Concluding
that full forfeiture would be grossly disproportional to the offense in
question, and would therefore violate the Excessive Fines Clause of the
Eighth Amendment, the court ordered forfeiture of $15,000, in addition
to three years' probation and the maximum fine of $5,000 under the
Sentencing Guidelines. The Ninth Circuit affirmed, holding that a
forfeiture must fulfill two conditions to satisfy the Clause: the
property forfeited must be an "instrumentality" of the crime committed,
and the property's value must be proportional to its owner's
culpability. The court determined that respondent's currency was
not an "instrumentality" of the crime of failure to report, which
involves the withholding of information, rather than the possession or
transportation of money; that therefore § 982(a)(1) could never
satisfy the Clause in a currency forfeiture case; that it was
unnecessary to apply the "proportionality" prong of the test; and that
the Clause did not permit forfeiture of any of the unreported currency,
but that the court lacked jurisdiction to set the $15,000 forfeiture
aside because respondent had not cross-appealed to challenge it.
Held: full forfeiture of respondent's $357,144
would violate the Excessive Fines Clause. Pp. 327-344.
(a) The forfeiture at issue is a "fine" within the
meaning of the Clause, which provides that "excessive fines [shall not
be] imposed." The Clause limits the Government's power to extract
payments, whether in cash or in kind, as punishment for some
offense. Austin v. United [524 U.S. 322] States, 509 U.S. 602,
609-610. Forfeitures -- payments in kind -- are thus "fines" if
they constitute punishment for an offense. Section §
982(a)(1) currency forfeitures do so. The statute directs a court
to order forfeiture as an additional sanction when "imposing sentence
on a person convicted of" a willful violation of § 5316's
reporting requirement. The forfeiture is thus imposed at the
culmination of a criminal proceeding and requires conviction of an
underlying felony, and it cannot be imposed upon an innocent owner of
unreported currency. Cf. id. at 619. The Court rejects the
Government's argument that such forfeitures serve important remedial
purposes -- by deterring illicit movements of cash and giving the
Government valuable information to investigate and detect criminal
activities associated with that cash -- because the asserted loss of
information here would not be remedied by confiscation of respondent's
$357,144. The Government's argument that the § 982(a)(1)
forfeiture is constitutional because it falls within a class of
historic forfeitures of property tainted by crime is also
rejected. In so arguing, the Government relies upon a series of
cases involving traditional civil in rem forfeitures that are
inapposite because such forfeitures were historically considered
nonpunitive. See, e.g., The Palmyra, 12 Wheat. 1, 14-15.
Section 982(a)(1) descends from a different historical tradition:
that of in personam criminal forfeitures. Similarly, the Court
declines to accept the Government's contention that the forfeiture here
is constitutional because it involves an "instrumentality" of
respondent's crime. Because instrumentalities historically have
been treated as a form of "guilty property" forfeitable in civil in rem
proceedings, it is irrelevant whether respondent's currency is an
instrumentality; the forfeiture is punitive, and the test for its
excessiveness involves solely a proportionality determination.
Pp. 327-334.
(b) A punitive forfeiture violates the Excessive
Fines Clause if it is grossly disproportional to the gravity of the
offense that it is designed to punish. Although the
proportionality principle has always been the touchstone of the
inquiry, see, e.g., Austin, supra, at 622-623, the Clause's text and
history provide little guidance as to how disproportional a forfeiture
must be to be "excessive." Until today, the Court has not
articulated a governing standard. In deriving the standard, the
Court finds two considerations particularly relevant. The first,
previously emphasized in cases interpreting the Cruel and Unusual
Punishments Clause, is that judgments about the appropriate punishment
belong in the first instance to the legislature. See, e.g., Solem
v. Helm, 463 U.S. 277, 290. The second is that any judicial
determination regarding the gravity of a particular criminal offense
will be inherently imprecise. Because both considerations counsel
against requiring strict [524 U.S. 323] proportionality, the Court
adopts the gross disproportionality standard articulated in, e.g., id.
at 288. Pp. 334-370.
(c) The forfeiture of respondent's entire $357,144
would be grossly disproportional to the gravity of his offense.
His crime was solely a reporting offense. It was permissible to
transport the currency out of the country so long as he reported
it. And because § 982(a)(1) orders currency forfeited for a
"willful" reporting violation, the essence of the crime is a willful
failure to report. Furthermore, the District Court found his
violation to be unrelated to any other illegal activities.
Whatever his other vices, respondent does not fit into the class of
persons for whom the statute was principally designed: money
launderers, drug traffickers, and tax evaders. And the maximum
penalties that could have been imposed under the Sentencing Guidelines,
a 6-month sentence and a $5,000 fine, confirm a minimal level of
culpability and are dwarfed by the $357,144 forfeiture sought by the
Government. The harm that respondent caused was also
minimal. The failure to report affected only the Government, and
in a relatively minor way. There was no fraud on the Government,
and no loss to the public fisc. Had his crime gone undetected,
the Government would have been deprived only of the information that
$357,144 had left the country. Thus, there is no articulable
correlation between the $357,144 and any Government injury. Pp.
337-340.
(d) The Court rejects the contention that the
proportionality of full forfeiture is demonstrated by the fact that the
First Congress, at roughly the same time the Eighth Amendment was
ratified, enacted statutes requiring full forfeiture of goods involved
in customs offenses or the payment of monetary penalties proportioned
to the goods' value. The early customs statutes do not support
the Government's assertion because, unlike § 982(a)(1), the type
of forfeiture they imposed was not considered punishment for a criminal
offense, but rather was civil in rem forfeiture, in which the
Government proceeded against the "guilty" property itself. See,
e.g., Harford v. United States, 8 Cranch 109. Similarly, the
early statutes imposing monetary "forfeitures" proportioned to the
value of the goods involved were considered not as punishment for an
offense, but rather as serving the remedial purpose of reimbursing the
Government for the losses accruing from evasion of customs
duties. See, e.g., Stockwell v. United States, 13 Wall. 531,
546-547. Pp. 340-344.
84 F.3d 334 affirmed.
THOMAS, J., delivered the opinion of the Court, in
which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined.
KENNEDY, J., filed a dissenting [524 U.S. 324] opinion, in which
REHNQUIST, C. J., and O'CONNOR and SCALIA, JJ., joined, post, p. 344.
THOMAS, J., lead opinion
JUSTICE THOMAS delivered the opinion of the Court.
Respondent Hosep Bajakajian attempted to leave the
United States without reporting, as required by federal law, that he
was transporting more than $10,000 in currency. Federal law also
provides that a person convicted of willfully violating this reporting
requirement shall forfeit to the government "any property . . .
involved in such offense." 18 U.S.C. § 982(a)(1). The
question in this case is whether forfeiture of the entire $357,144 that
respondent failed to declare would violate the Excessive Fines Clause
of the Eighth Amendment. We hold that it would, because full
forfeiture of respondent's currency would be grossly disproportional to
the gravity of his offense.
I
On June 9, 1994, respondent, his wife, and his two
daughters were waiting at Los Angeles International Airport to board a
flight to Italy; their final destination was Cyprus. Using dogs
trained to detect currency by its smell, customs inspectors discovered
some $230,000 in cash in the Bajakajians' checked baggage. A
customs inspector approached respondent and his wife and told them that
they were required to report all money in excess of $10,000 in their
possession or in their baggage. Respondent said that he had
$8,000 and [524 U.S. 325] that his wife had another $7,000, but that
the family had no additional currency to declare. A search of
their carry-on bags, purse, and wallet revealed more cash; in all,
customs inspectors found $357,144. The currency was seized, and
respondent was taken into custody.
A federal grand jury indicted respondent on three
counts. Count One charged him with failing to report as required
by 31 U.S.C. § 5316(a)(1)(A),{1} that he was transporting
more than $10,000 outside the United States, and with doing so
"willfully," in violation of § 5322(a).{2} Count Two charged
him with making a false material statement to the United States Customs
Service, in violation of 18 U.S.C. § 1001. Count Three
sought forfeiture of the $357,144 pursuant to 18 U.S.C. §
982(a)(1), which provides:
The court, in imposing sentence on a person
convicted of an offense in violation of section . . . 5316, . . . shall
order that the person forfeit to the United States any property, real
or personal, involved in such offense, or any property traceable to
such property.
18 U.S.C. § 982(a)(1).
Respondent pleaded guilty to the failure to report
in Count One; the Government agreed to dismiss the false statement
charge in Count Two; and respondent elected to have a bench trial on
the forfeiture in Count Three. After the bench trial, the
District Court found that the entire $357,144 was subject to forfeiture
because it was "involved [524 U.S. 326] in" the offense.
Ibid. The court also found that the funds were not connected to
any other crime, and that respondent was transporting the money to
repay a lawful debt. Tr. 61-62 (Jan. 19, 1995). The
District Court further found that respondent had failed to report that
he was taking the currency out of the United States because of fear
stemming from "cultural differences": respondent, who had grown
up as a member of the Armenian minority in Syria, had a "distrust for
the Government." Id. at 63; see Tr. of Oral Arg. 30.
Although § 982(a)(1) directs sentencing courts
to impose full forfeiture, the District Court concluded that such
forfeiture would be "extraordinarily harsh" and "grossly
disproportionate to the offense in question," and that it would
therefore violate the Excessive Fines Clause. Tr. 63. The
court instead ordered forfeiture of $15,000, in addition to a sentence
of three years of probation and a fine of $5,000 -- the maximum fine
under the Sentencing Guidelines -- because the court believed that the
maximum Guidelines fine was "too little," and that a $15,000 forfeiture
would "make up for what I think a reasonable fine should be."
Ibid.
The United States appealed, seeking full forfeiture
of respondent's currency as provided in § 982(a)(1). The
Court of Appeals for the Ninth Circuit affirmed. 84 F.3d 334
(1996). Applying Circuit precedent, the Court held that, to
satisfy the Excessive Fines Clause, a forfeiture must fulfill two
conditions: The property forfeited must be an "instrumentality"
of the crime committed, and the value of the property must be
proportional to the culpability of the owner. Id. at 336 (citing
United States v. Real Property Located in El Dorado County, 59 F.3d
974, 982 (CA9 1995)). A majority of the panel determined that the
currency was not an "instrumentality" of the crime of failure to
report, because "`[t]he crime [in a currency reporting offense] is the
withholding of information, . . . not the possession or the
transportation of the money.'" 84 F.3d at 337 (quoting United
States v. $69,292 [524 U.S. 327] in United States Currency, 62 F.3d
1161, 1167 (CA9 1995)). The majority therefore held that §
982(a)(1) could never satisfy the Excessive Fines Clause in cases
involving forfeitures of currency, and that it was unnecessary to apply
the "proportionality" prong of the test. Although the panel
majority concluded that the Excessive Fines Clause did not permit
forfeiture of any of the unreported currency, it held that it lacked
jurisdiction to set the $15,000 forfeiture aside because respondent had
not cross-appealed to challenge that forfeiture. 84 F.3d at 338.
Judge Wallace concurred in the result. He
viewed respondent's currency as an instrumentality of the crime because
"without the currency, there can be no offense," id. at 339, and he
criticized the majority for "strik[ing] down a portion of" the statute,
id. at 338. He nonetheless agreed that full forfeiture would
violate the Excessive Fines Clause in respondent's case, based upon the
"proportionality" prong of the Ninth Circuit test. Finding no
clear error in the District Court's factual findings, he concluded that
the reduced forfeiture of $15,000 was proportional to respondent's
culpability. Id. at 339-340.
Because the Court of Appeals' holding -- that the
forfeiture ordered by § 982(a)(1) was per se unconstitutional in
cases of currency forfeiture -- invalidated a portion of an act of
Congress, we granted certiorari. 520 U.S. 1239 (1997).
II
The Eighth Amendment provides: "Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const., Amdt. 8. This
Court has had little occasion to interpret, and has never actually
applied, the Excessive Fines Clause. We have, however, explained
that, at the time the Constitution was adopted, "the word `fine' was
understood to mean a payment to a sovereign as punishment for some
offense." Browning-Ferris Industries of Vt., Inc. v. Kelco
Disposal, [524 U.S. 328] Inc., 492 U.S. 257, 265 (1989). The
Excessive Fines Clause thus "limits the government's power to extract
payments, whether in cash or in kind, `as punishment for some
offense.'" Austin v. United States, 509 U.S. 602, 609-610 (1993)
(emphasis deleted). Forfeitures -- payments in kind -- are thus
"fines" if they constitute punishment for an offense.
We have little trouble concluding that the
forfeiture of currency ordered by § 982(a)(1) constitutes
punishment. The statute directs a court to order forfeiture as an
additional sanction when "imposing sentence on a person convicted of" a
willful violation of § 5316's reporting requirement. The
forfeiture is thus imposed at the culmination of a criminal proceeding,
and requires conviction of an underlying felony, and it cannot be
imposed upon an innocent owner of unreported currency, but only upon a
person who has himself been convicted of a § 5316 reporting
violation.{3} Cf. Austin v. United States, supra, at 619 (holding
forfeiture to be a "fine" in part because the forfeiture statute
"expressly provide[d] an `innocent owner' defense," and thus "look[ed]
. . . like punishment"). [524 U.S. 329]
The United States argues, however, that the
forfeiture of currency under § 982(a)(1) "also serves important
remedial purposes." Brief for United States 20. The
Government asserts that it has "an overriding sovereign interest in
controlling what property leaves and enters the country."
Ibid. It claims that full forfeiture of unreported currency
supports that interest by serving to "dete[r] illicit movements of
cash" and aiding in providing the Government with "valuable information
to investigate and detect criminal activities associated with that
cash." Id. at 21. Deterrence, however, has traditionally
been viewed as a goal of punishment, and forfeiture of the currency
here does not serve the remedial purpose of compensating the Government
for a loss. See Black's Law Dictionary 1293 (6th ed. 1990)
("[R]emedial action" is one "brought to obtain compensation or
indemnity"); One Lot Emerald Cut Stones v. United States, 409 U.S. 232
(1972) (per curiam) (monetary penalty provides "a reasonable form of
liquidated damages," id. at 237, to the Government and is thus a
"remedial" sanction because it compensates government for lost
revenues). Although the Government has asserted a loss of
information regarding the amount of currency leaving the country, that
loss would not be remedied by the Government's confiscation of
respondent's $357,144.{4}
The United States also argues that the forfeiture
mandated by § 982(a)(1) is constitutional because it falls within
a class of historic forfeitures of property tainted by crime. See
Brief for United States 16 (citing, inter alia, The Palmyra, [524 U.S.
330] 12 Wheat. 1, 13 (1827) (forfeiture of ship); Dobbins's Distillery
v. United States, 96 U.S. 395, 400-401 (1878) (forfeiture of
distillery)). In so doing, the Government relies upon a series of
cases involving traditional civil in rem forfeitures that are
inapposite because such forfeitures were historically considered
nonpunitive.
The theory behind such forfeitures was the fiction
that the action was directed against "guilty property," rather than
against the offender himself.{5} See, e.g., Various Items of
Personal Property v. United States, 282 U.S. 577, 581 (1931) ("[I]t is
the property which is proceeded against, and, by resort to a legal
fiction, held guilty and condemned as though it were conscious instead
of inanimate and insentient"); see also R. Waples, Proceedings In Rem
13, 205-209 (1882). Historically, the conduct of the property
owner was irrelevant; indeed, the owner of forfeited property could be
entirely innocent of any crime. See, e.g., Origet v. United
States, 125 U.S. 240, 246 (1888) ("[T]he merchandise is to be forfeited
irrespective of any criminal prosecution. . . . The person
punished for the offence may be an entirely different person from the
owner of the merchandise, or any person interested in it. The
forfeiture of the goods of the principal can form no part of the
personal punishment of his agent"). As Justice Story explained:
The thing is here primarily considered as the
offender, or rather the offence is attached primarily to the thing; and
this whether the offence be malum prohibitum [524 U.S. 331] or malum in
se. . . . [T]he practice has been, and so this Court understand
the law to be, that the proceeding in rem stands independent of, and
wholly unaffected by any criminal proceeding in personam.
The Palmyra, 12 Wheat. at 14-15.
Traditional in rem forfeitures were thus not
considered punishment against the individual for an offense. See
id. at 14; Dobbins's Distillery v. United States, supra, at 401; Van
Oster v. Kansas, 272 U.S. 465, 467-468 (1926); Calero-Toledo v. Pearson
Yacht Leasing Co., 416 U.S. 663, 683-684 (1974); Taylor v. United
States, 3 How. 197, 210 (1845) (opinion of Story, J.) (laws providing
for in rem forfeiture of goods imported in violation of customs laws,
although in one sense "imposing a penalty or forfeiture[,] . . . truly
deserve to be called, remedial"); see also United States v. Ursery, 518
U.S. 267, 293 (1996) (KENNEDY, J., concurring) ("[C]ivil in rem
forfeiture is not punishment of the wrongdoer for his criminal
offense"). Because they were viewed as nonpunitive, such
forfeitures traditionally were considered to occupy a place outside the
domain of the Excessive Fines Clause. Recognizing the nonpunitive
character of such proceedings, we have held that the Double Jeopardy
Clause does not bar the institution of a civil, in rem forfeiture
action after the criminal conviction of the defendant. See id. at
278.{6}
The forfeiture in this case does not bear any of the
hallmarks of traditional civil in rem forfeitures. The Government
[524 U.S. 332] has not proceeded against the currency itself, but has
instead sought and obtained a criminal conviction of respondent
personally. The forfeiture serves no remedial purpose, is
designed to punish the offender, and cannot be imposed upon innocent
owners.
Section 982(a)(1) thus descends not from historic in
rem forfeitures of guilty property, but from a different historical
tradition: that of in personam, criminal forfeitures. Such
forfeitures have historically been treated as punitive, being part of
the punishment imposed for felonies and treason in the Middle Ages and
at common law. See W. McKechnie, Magna Carta 337-339 (2d ed.
1958); 2 F. Pollock & F. Maitland, The History of English Law
460-466 (2d ed. 1909). Although in personam criminal forfeitures
were well established in England at the time of the Founding, they were
rejected altogether in the laws of this country until very recently.{7}
[524 U.S. 333]
The Government specifically contends that the
forfeiture of respondent's currency is constitutional because it
involves an "instrumentality" of respondent's crime.{8} According
to the Government, the unreported cash is an instrumentality because it
"does not merely facilitate a violation of law," but is "`the very sine
qua non of the crime.'" Brief for United States 20 (quoting
United States v. United States Currency in the Amount of One Hundred
Forty-Five Thousand, One Hundred Thirty-Nine Dollars, 18 F.3d 73, 75
(CA2), cert. denied sub nom. Etim v. United States, 513 U.S. 815
(1994)). The Government reasons that "there would be no violation
at all without the exportation (or attempted exportation) of the
cash." Brief for United States 20.
Acceptance of the Government's argument would
require us to expand the traditional understanding of instrumentality
forfeitures. This we decline to do. Instrumentalities
historically have been treated as a form of "guilty property" that can
be forfeited in civil in rem proceedings. In this case, however,
the Government has sought to punish respondent by proceeding against
him criminally, in personam, rather than proceeding in rem against the
currency. It is therefore irrelevant whether respondent's
currency is an instrumentality; the forfeiture is punitive, and the
test for [524 U.S. 334] the excessiveness of a punitive forfeiture
involves solely a proportionality determination. See infra at
335-337.{9}
III
Because the forfeiture of respondent's currency
constitutes punishment, and is thus a "fine" within the meaning of the
Excessive Fines Clause, we now turn to the question of whether it is
"excessive."
A
The touchstone of the constitutional inquiry under
the Excessive Fines Clause is the principle of proportionality:
the amount of the forfeiture must bear some relationship to the gravity
of the offense that it is designed to punish. See Austin v.
United States, 509 U.S. at 622-623 (noting Court of Appeals' statement
that "`the government is exacting too high a penalty in relation to the
offense committed'"); Alexander v. United States, 509 U.S. 544, 559
(1993) ("It is in the light of the extensive criminal activities which
petitioner apparently conducted . . . that the question whether the
forfeiture was 'excessive' must be considered"). Until today,
however, we have not articulated a standard for determining whether a
punitive forfeiture is constitutionally excessive. We now hold
that a punitive forfeiture violates the Excessive Fines Clause if it is
grossly disproportional to the gravity of a defendant's offense. [524
U.S. 335]
The text and history of the Excessive Fines Clause
demonstrate the centrality of proportionality to the excessiveness
inquiry; nonetheless, they provide little guidance as to how
disproportional a punitive forfeiture must be to the gravity of an
offense in order to be "excessive." Excessive means surpassing
the usual, the proper, or a normal measure of proportion. See 1
N. Webster, American Dictionary of the English Language (1828)
(defining excessive as "beyond the common measure or proportion"); S.
Johnson, A Dictionary of the English Language 680 (4th ed. 1773)
("[b]eyond the common proportion"). The constitutional question
that we address, however, is just how proportional to a criminal
offense a fine must be, and the text of the Excessive Fines Clause does
not answer it.
Nor does its history. The Clause was little
discussed in the First Congress and the debates over the ratification
of the Bill of Rights. As we have previously noted, the Clause
was taken verbatim from the English Bill of Rights of 1689. See
Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492
U.S. at 266-267. That document's prohibition against excessive
fines was a reaction to the abuses of the King's judges during the
reigns of the Stuarts, id. at 267, but the fines that those judges
imposed were described contemporaneously only in the most general
terms. See Earl of Devonshire's Case, 11 State Tr. 1367, 1372
(H.L. 1689) (fine of £30,000 "excessive and exorbitant, against
Magna Charta, the common right of the subject, and the law of the
land"). Similarly, Magna Charta -- which the Stuart judges were
accused of subverting -- required only that amercements (the medieval
predecessors of fines) should be proportioned to the offense, and that
they should not deprive a wrongdoer of his livelihood:
A Freeman shall not be amerced for a small fault,
but after the manner of the fault; and for a great fault after the
greatness thereof, saving to him his contenement; (2) and a Merchant
likewise, saving to him his [524 U.S. 336] merchandise; (3) and any
other's villain than ours shall be likewise amerced, saving his wainage.
Magna Charta, 9 Hen. III, ch. 14 (1225), 1 Stat. at Large 6-7 (1762
ed.). None of these sources suggests how disproportional to the
gravity of an offense a fine must be in order to be deemed
constitutionally excessive.
We must therefore rely on other considerations in
deriving a constitutional excessiveness standard, and there are two
that we find particularly relevant. The first, which we have
emphasized in our cases interpreting the Cruel and Unusual Punishments
Clause, is that judgments about the appropriate punishment for an
offense belong in the first instance to the legislature. See,
e.g., Solem v. Helm, 463 U.S. 277, 290 (1983) ("Reviewing courts . . .
should grant substantial deference to the broad authority that
legislatures necessarily possess in determining the types and limits of
punishments for crimes"); see also Gore v. United States, 357 U.S. 386,
393 (1958) ("Whatever views may be entertained regarding severity of
punishment, . . . these are peculiarly questions of legislative
policy"). The second is that any judicial determination regarding
the gravity of a particular criminal offense will be inherently
imprecise. Both of these principles counsel against requiring
strict proportionality between the amount of a punitive forfeiture and
the gravity of a criminal offense, and we therefore adopt the standard
of gross disproportionality articulated in our Cruel and Unusual
Punishments Clause precedents. See, e.g., Solem v. Helm, supra,
at 288; Rummel v. Estelle, 445 U.S. 263, 271 (1980).
In applying this standard, the district courts in
the first instance, and the courts of appeals, reviewing the
proportionality determination de novo,{10} must compare the
amount [524 U.S. 337] of the forfeiture to the gravity of the
defendant's offense. If the amount of the forfeiture is grossly
disproportional to the gravity of the defendant's offense, it is
unconstitutional.
B
Under this standard, the forfeiture of respondent's
entire $357,144 would violate the Excessive Fines Clause.{11}
Respondent's crime was solely a reporting offense. It was
permissible to transport the currency out of the country so long as he
reported it. Section 982(a)(1) orders currency to be forfeited
for a "willful" violation of the reporting requirement. Thus, the
essence of respondent's crime is a willful failure to report the
removal of currency from the United States.{12} Furthermore, as
the District Court found, respondent's violation [524 U.S. 338] was
unrelated to any other illegal activities. The money was the
proceeds of legal activity, and was to be used to repay a lawful
debt. Whatever his other vices, respondent does not fit into the
class of persons for whom the statute was principally designed:
he is not a money launderer, a drug trafficker, or a tax
evader.{13} See Brief for United States 2-3. And, under the
Sentencing Guidelines, the maximum sentence that could have been
imposed on respondent was six months, while the maximum fine was
$5,000. App. to Pet. for Cert. 17a (transcript of District Court
sentencing hearing); United States Sentencing Commission, Guidelines
Manual, § 5(e)1.2, Sentencing Table [524 U.S. 339] (Nov.
1994). Such penalties confirm a minimal level of culpability.{14}
The harm that respondent caused was also
minimal. Failure to report his currency affected only one party,
the Government, and in a relatively minor way. There was no fraud
on the United States, and respondent caused no loss to the public
fisc. Had his crime gone undetected, the Government would have
been deprived only of the information that $357,144 had left the
country. The Government and the dissent contend that there is a
correlation between the amount forfeited and the harm that the
Government would have suffered had the crime gone undetected. See
Brief for United States 30 (forfeiture is "perfectly calibrated"); post
at 344 ("a fine calibrated with this accuracy"). We
disagree. There is no inherent proportionality in such a
forfeiture. It is impossible to conclude, for example, that the
harm respondent caused is anywhere near 30 times greater than that
caused by a hypothetical drug dealer who willfully fails to report
taking $12,000 out of the country in order to purchase drugs.
Comparing the gravity of respondent's crime with the
$357,144 forfeiture the Government seeks, we conclude that such a
forfeiture would be grossly disproportional to the [524 U.S. 340]
gravity of his offense.{15} It is larger than the $5,000 fine
imposed by the District Court by many orders of magnitude, and it bears
no articulable correlation to any injury suffered by the Government.
C
Finally, we must reject the contention that the
proportionality of full forfeiture is demonstrated by the fact that the
First Congress enacted statutes requiring full forfeiture of goods
involved in customs offenses or the payment of monetary penalties
proportioned to the goods' value. It is argued that the enactment
of these statutes at roughly the same time that the Eighth Amendment
was ratified suggests that full forfeiture, in the customs context at
least, is a proportional punishment. The early customs statutes,
however, do not support such a conclusion because, unlike §
982(a)(1), the type of forfeiture that they imposed was not considered
punishment for a criminal offense.
Certain of the early customs statutes required the
forfeiture of goods imported in violation of the customs laws, and, in
some instances, the vessels carrying them as well. See, e.g., Act
of Aug. 4, 1790, § 27, 1 Stat. 163 (goods unladen without a permit
from the collector). These forfeitures, however, were civil in
rem forfeitures, in which the Government proceeded against the property
itself on the theory that it was guilty, not against a criminal
defendant. See, e.g., Harford v. United States, 8 Cranch 109
(1814) (goods unladen without a permit); Locke v. United States, 7
Cranch 339, 340 (1813) (same). Such forfeitures sought to
vindicate the Government's underlying property right in customs duties,
and, like other traditional in rem forfeitures, they were not
considered at the Founding to be punishment for an offense. See
supra at 331-332. They therefore indicate [524 U.S. 341] nothing
about the proportionality of the punitive forfeiture at issue
here. Ibid.{16}
Other statutes, however, imposed monetary
"forfeitures" proportioned to the value of the goods involved.
See, e.g., Act of July 31, 1789, § 22, 1 Stat. 42 (if an importer,
"with design to defraud the revenue," did not invoice his goods at
their actual cost at the place of export, "all such goods, wares or
merchandise, or the value thereof . . . shall be forfeited"); §
25, id. at 43 (any person concealing or purchasing goods, knowing they
were liable to seizure for violation of the customs laws, was liable to
"forfeit and pay a sum double the value of the goods so concealed or
purchased"); see also Act of Aug. 4, 1790, §§ 10, 14, 22, id.
at 156, 158, 161. Similar statutes were passed in later
Congresses. See, e.g., Act of Mar. 2, 1799, §§ 24, 28,
45, 46, 66, 69, 79, 84, id. at 646, 648, 661, 662, 677, 678, 687, 694;
Act of Mar. 3, 1823, ch. 58, § 1, 3 Stat. 781.
These "forfeitures" were similarly not considered
punishments for criminal offenses. This Court so recognized in
Stockwell v. United States, 13 Wall. 531 (1871), a case interpreting a
statute that, like the Act of July 31, 1789, provided that a person who
had concealed goods liable to seizure for customs violations should
"forfeit and pay a sum double the amount or value of the goods."
Act of Mar. 3, 1823, ch. 58, § 2, 3 Stat. 781-782. The
Stockwell Court rejected the defendant's [524 U.S. 342] contention that
this provision was "penal," stating instead that it was "fully as
remedial in its character, designed as plainly to secure [the] rights
[of the Government] as are the statutes rendering importers liable to
duties." 13 Wall. at 546. The Court reasoned:
When foreign merchandise, subject to duties, is
imported into the country, the act of importation imposes on the
importer the obligation to pay the legal charges. Besides this,
the goods themselves, if the duties be not paid, are subject to seizure
. . . . Every act, therefore, which interferes with the
right of the government to seize and appropriate the property which has
been forfeited to it . . . is a wrong to property rights, and is a fit
subject for indemnity.
Id. at 546. Significantly, the fact that the forfeiture was a
multiple of the value of the goods did not alter the Court's
conclusion:
The act of abstracting goods illegally imported,
receiving, concealing, or buying them, interposes difficulties in the
way of a government seizure, and impairs, therefore, the value of the
government right. It is, then, hardly accurate to say that the
only loss the government can sustain from concealing the goods liable
to seizure is their single value . . . . Double the value may not
be more than complete indemnity.
Id. at 546-547.
The early monetary forfeitures, therefore, were
considered not as punishment for an offense, but rather as serving the
remedial purpose of reimbursing the Government for the losses accruing
from the evasion of customs duties.{17} They [524 U.S. 343] were
thus no different in purpose and effect than the in rem forfeitures of
the goods to whose value they were proportioned.{18} Cf. One Lot
Emerald Cut Stones v. United States, 409 U.S. 232, 237 (1972) (per
curiam) (customs statute requiring the forfeiture of undeclared goods
concealed in baggage and imposing a monetary penalty equal to the value
of the goods imposed a "remedial, rather than [a] punitive
sanctio[n]").{19} By contrast, [524 U.S. 344] the full forfeiture
mandated by § 982(a)(1) in this case serves no remedial purpose;
it is clearly punishment. The customs statutes enacted by the
First Congress, therefore, in no way suggest that § 982(a)(1)'s
currency forfeiture is constitutionally proportional.
* * * *
For the foregoing reasons, the full forfeiture of
respondent's currency would violate the Excessive Fines Clause.
The judgment of the Court of Appeals is
Affirmed.
KENNEDY, J., dissenting
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE, JUSTICE O'CONNOR, and JUSTICE SCALIA join, dissenting.
For the first time in its history, the Court strikes
down a fine as excessive under the Eighth Amendment. The decision
is disturbing both for its specific holding and for the broader
upheaval it foreshadows. At issue is a fine Congress fixed in the
amount of the currency respondent sought to smuggle or to transport
without reporting. If a fine calibrated with this accuracy fails
the Court's test, its decision portends serious disruption of a vast
range of statutory fines. The Court all but says the offense is
not serious anyway. This disdain for the statute is wrong as an
empirical matter and disrespectful of the separation of powers.
The irony of the case is that, in the end, it may stand for narrowing
constitutional protection, rather than enhancing it. To make its
rationale work, the Court appears to remove important classes of fines
from any excessiveness inquiry at all. This, too, is unsound; and
with all respect, I dissent.
I
A
In striking down this forfeiture, the majority
treats many fines as "remedial" penalties even though they far exceed
the [524 U.S. 345] harm suffered. Remedial penalties, the Court
holds, are not subject to the Excessive Fines Clause at all. See,
e.g., ante at 342. Proceeding from this premise, the majority
holds customs fines are remedial, and not at all punitive, even if they
amount to many times the duties due on the goods. See ante at
341-344. In the majority's universe, a fine is not a punishment
even if it is much larger than the money owed. This confuses
whether a fine is excessive with whether it is a punishment.
This novel, mistaken approach requires reordering a
tradition existing long before the Republic and confirmed in its early
years. The Court creates its category to reconcile its
unprecedented holding with a six-century-long tradition of in personam
customs fines equal to one, two, three, or even four times the value of
the goods at issue. E.g., Cross v. United States, 6 F. Cas. 892
(No. 3,434) (CC Mass. 1812) (Story, J., Cir. J.); United States v.
Riley, 88 F. 480 (SDNY 1898); United States v. Jordan, 26 F. Cas. 661
(No. 15,498) (Mass. 1876); In re Vetterlein, 28 F. Cas. 1172 (No.
16,929) (CC SDNY 1875); United States v. Hughes, 26 F. Cas. 417 (No.
15,417) (CC SDNY 1875); McGlinchy v. United States, 16 F. Cas. 118 (No.
8,803) (CC Me. 1875); United States v. Hutchinson, 26 F. Cas. 446 (No.
15,431) (Me. 1868); Tariff Act of 1930, § 497, 46 Stat. 728 as
amended, 19 U.S.C. § 1497(a) (failing to declare goods); Act of
Mar. 3, 1863, § 1, 12 Stat. 738 (same); Act of Mar. 3, 1823, ch.
58, § 1, 3 Stat. 781 (importing without a manifest); Act of Mar.
2, 1799, §§ 46, 79, 84, 1 Stat. 662, 687, 694 (failing to
declare goods; failing to re-export goods; making false entries on
forms); Act of Aug. 4, 1790, §§ 10, 14, 22, 1 Stat. 156, 158,
161 (submitting incomplete manifests; unloading before customs;
unloading duty-free goods); Act of July 31, 1789, §§ 22, 25,
1 Stat. 42, 43 (using false invoices; buying uncustomed goods); King v.
Manning, 2 Comyns 616, 92 Eng. Rep. 1236 (K.B. 1738) (assisting
smugglers); 1 Eliz. 1, ch. 11, § 5 (1558-1559) (Eng.) (declaring
goods under wrong person's name); 1 & 2 Phil. & [524 U.S. 346]
M., ch. 5, §§ 1, 3 (1554-1555) (Eng.) (exporting food without
a license; exporting more food than the license allowed); 5 Rich. 2,
Stat. 1, chs. 2, 3 (1381) (Eng.) (exporting gold or silver without a
license; using ships other than those of the King's allegiance).
In order to sweep all these precedents aside, the
majority's remedial analysis assumes the settled tradition was limited
to "reimbursing the Government for" unpaid duties. Ante at
342. The assumption is wrong. Many offenses did not require
a failure to pay a duty at all. See, e.g., Act of Mar. 3, 1863,
§ 1, 12 Stat. 738 (importing under false invoices); Act of Mar. 3,
1823, ch. 58, § 1, 3 Stat. 781 (failing to deliver ship's
manifest); Act of Mar. 2, 1799, § 28, 1 Stat. 648 (transferring
goods from one ship to another); Act of Aug. 4, 1790, § 14, 1
Stat. 158 (same); 5 Rich. II, st. 1, ch. 2 (1381) (Eng.) (exporting
gold or silver without a license). None of these in personam
penalties depended on a compensable monetary loss to the
government. True, these offenses risked causing harm, ante at
342-343, n. 17, but so does smuggling or not reporting cash. A
sanction proportioned to potential, rather than actual, harm is
punitive, though the potential harm may make the punishment a
reasonable one. See TXO Production Corp. v. Alliance Resources
Corp., 509 U.S. 443, 460-462 (1993) (opinion of STEVENS, J.). The
majority nonetheless treats the historic penalties as nonpunitive and
thus not subject to the Excessive Fines Clause, though they are
indistinguishable from the fine in this case. (It is a mark of
the Court's doctrinal difficulty that we must speak of nonpunitive
penalties, which is a contradiction in terms.)
Even if the majority's typology were correct, it
would have to treat the instant penalty as nonpunitive. In this
respect, the Court cannot distinguish the case on which it twice
relies, One Lot Emerald Cut Stones v. United States, 409 U.S. 232
(1972) (per curiam). Ante at 329, 343. Emerald Stones held
forfeiture of smuggled goods plus a fine equal to their value was
remedial and not punitive, for purposes of [524 U.S. 347] double
jeopardy, because the fine "serves to reimburse the Government for
investigation and enforcement expenses." 409 U.S. at 237.
The logic, however, applies with equal force here. Forfeiture of
the money involved in the offense would compensate for the
investigative and enforcement expenses of the Customs Service.
There is no reason to treat the cases differently just because a small
duty was at stake in one and a disclosure form in the other. See
Bollinger's Champagne, 3 Wall. 560, 564 (1866) (holding falsehoods on
customs forms justify forfeiture even if the lies do not affect the
duties due and paid). The majority, in short, is not even
faithful to its own artificial category of remedial penalties.
B
The majority's novel holding creates another anomaly
as well. The majority suggests in rem forfeitures of the
instrumentalities of crimes are not fines at all. See ante at
333-334, and nn. 8, 9. The point of the instrumentality theory is
to distinguish goods having a "close enough relationship to the
offense" from those incidentally related to it. Austin v. United
States, 509 U.S. 602, 628 (SCALIA, J., concurring in part and
concurring in judgment). From this, the Court concludes the money
in a cash smuggling or nonreporting offense cannot be an
instrumentality, unlike, say, a car used to transport goods concealed
from taxes. Ante at 334, n. 9. There is little logic in
this rationale. The car plays an important role in the offense,
but is not essential; one could also transport goods by jet or by
foot. The link between the cash and the cash smuggling offense is
closer, as the offender must fail to report while smuggling more than
$10,000. See 31 U.S.C. §§ 5316(a), 5322(a). The
cash is not just incidentally related to the offense of cash
smuggling. It is essential, whereas the car is not. Yet the
car plays an important enough role to justify forfeiture as the
majority concedes. A fortiori, the cash does as well. Even
if there were a clear distinction between instrumentalities [524 U.S.
348] and incidental objects, when the Court invokes the distinction, it
gets the results backwards.
II
Turning to the question of excessiveness, the
majority states the test: a defendant must prove a gross
disproportion before a court will strike down a fine as
excessive. See ante at 334. This test would be a proper way
to apply the Clause, if only the majority were faithful in applying
it. The Court does not, however, explain why in this case
forfeiture of all of the cash would have suffered from a gross
disproportion. The offense is a serious one, and respondent's
smuggling and failing to report were willful. The cash was lawful
to own, but this fact shows only that the forfeiture was a fine; it
cannot also prove that the fine was excessive.
The majority illuminates its test with a principle
of deference. Courts "`should grant substantial deference to the
broad authority that legislatures necessarily possess'" in setting
punishments. Ante at 336 (quoting Solem v. Helm, 463 U.S. 277,
290 (1983)). Again, the principle is sound, but the
implementation is not. The majority's assessment of the crime
accords no deference, let alone substantial deference, to the judgment
of Congress. Congress deems the crime serious, but the Court does
not. Under the congressional statute, the crime is punishable by
a prison sentence, a heavy fine, and the forfeiture here at
issue. As the statute makes clear, the Government needs the
information to investigate other serious crimes, and it needs the
penalties to ensure compliance.
A
By affirming, the majority in effect approves a
meager $15,000 forfeiture. The majority's holding purports to be
narrower, saying only that forfeiture of the entire $357,144 would be
excessive. Ante at 337, and n. 11. This narrow holding is
artificial in constricting the question presented for this Court's
review. The statute mandates forfeiture of [524 U.S. 349] the
entire $357,144. See 18 U.S.C. § 982(a)(1). The only
ground for reducing the forfeiture, then, is that any higher amount
would be unconstitutional. The majority affirms the reduced
$15,000 forfeiture on de novo review, see ante at 336-337, and n. 11,
which it can do only if a forfeiture of even $15,001 would have
suffered from a gross disproportion. Indeed, the majority leaves
open whether the $15,000 forfeiture itself was too great. See
ante at 337, n. 11. Money launderers, among the principal targets
of this statute, may get an even greater return from their crime.
The majority does not explain why respondent's
knowing, willful, serious crime deserves no higher penalty than
$15,000. It gives only a cursory explanation of why forfeiture of
all of the money would have suffered from a gross disproportion.
The majority justifies its evisceration of the fine because the money
was legal to have and came from a legal source. See ante at
337-338. This fact, however, shows only that the forfeiture was a
fine, not that it was excessive. As the majority puts it,
respondent's money was lawful to possess, was acquired in a lawful
manner, and was lawful to export. Ibid. It was not,
however, lawful to possess the money while concealing and smuggling
it. Even if one overlooks this problem, the apparent lawfulness
of the money adds nothing to the argument. If the items possessed
had been dangerous or unlawful to own, for instance narcotics, the
forfeiture would have been remedial, and would not have been a fine at
all. See Austin, 509 U.S. at 621; e.g., United States v. One
Assortment of 89 Firearms, 465 U.S. 354, 364 (1984) (unlicensed guns);
Commonwealth v. Dana, 43 Mass. 329, 337 (1841) (forbidden lottery
tickets). If respondent had acquired the money in an unlawful
manner, it would have been forfeitable as proceeds of the crime.
As a rule, forfeitures of criminal proceeds serve the nonpunitive ends
of making restitution to the rightful owners and of compelling the
surrender of property held without right or ownership. See United
States v. Ursery, 518 U.S. 267, 284 [524 U.S. 350] (1996). Most
forfeitures of proceeds, as a consequence, are not fines at all, let
alone excessive fines. Hence, the lawfulness of the money shows,
at most, that the forfeiture was a fine; it cannot at the same time
prove that the fine was excessive.
B
1
In assessing whether there is a gross disproportion,
the majority concedes, we must grant "`substantial deference'" to
Congress' choice of penalties. Ante at 290 (quoting Solem, 463
U.S. at 290). Yet, ignoring its own command, the Court sweeps
aside Congress' reasoned judgment and substitutes arguments that are
little more than speculation.
Congress considered currency smuggling and
nonreporting a serious crime, and imposed commensurate penalties.
It authorized punishments of five years' imprisonment, a $250,000 fine,
plus forfeiture of all the undeclared cash. 31 U.S.C. §
5322(a); 18 U.S.C. § 982(a)(1). Congress found the offense
standing alone is a serious crime, for the same statute doubles the
fines and imprisonment for failures to report cash "while violating
another law of the United States." 31 U.S.C. §
5322(b). Congress experimented with lower penalties on the order
of one year in prison plus a $1,000 fine, but it found the punishments
inadequate to deter lucrative money laundering. See President's
Commission on Organized Crime, The Cash Connection: Organized
Crime, Financial Institutions, and Money Laundering 27, 60 (Oct.
1984). The Court today rejects this judgment.
The Court rejects the congressional judgment
because, it says, the Sentencing Guidelines cap the appropriate fine at
$5,000. See ante at 338-339 and n. 14. The purpose of the
Guidelines, however, is to select punishments with precise proportion,
not to opine on what is a gross disproportion. In addition, there
is no authority for elevating the Commission's judgment [524 U.S. 351]
of what is prudent over the congressional judgment of what is
constitutional. The majority, then, departs from its promise of
deference in the very case announcing the standard.
The Court's argument is flawed, moreover, by a
serious misinterpretation of the Guidelines on their face. The
Guidelines do not stop at the $5,000 fine the majority cites.
They augment it with this vital point: "Forfeiture is to be
imposed upon a convicted defendant as provided by statute."
United States Sentencing Commission, Guidelines Manual § 5E1.4
(Nov. 1995). The fine thus supplements the forfeiture; it does
not replace it. Far from contradicting congressional judgment on
the offense, the Guidelines implement and mandate it.
2
The crime of smuggling or failing to report cash is
more serious than the Court is willing to acknowledge. The drug
trade, money laundering, and tax evasion all depend in part on smuggled
and unreported cash. Congress enacted the reporting requirement
because secret exports of money were being used in organized crime,
drug trafficking, money laundering, and other crimes. See
H.R.Rep. No. 91-975, pp. 12-13 (1970). Likewise, tax evaders were
using cash exports to dodge hundreds of millions of dollars in taxes
owed to the Government. See ibid.
The Court does not deny the importance of these
interests, but claims they are not implicated here, because respondent
managed to disprove any link to other crimes. Here, to be sure,
the Government had no affirmative proof that the money was from an
illegal source or for an illegal purpose. This will often be the
case, however. By its very nature, money laundering is difficult
to prove, for, if the money launderers have done their job, the money
appears to be clean. The point of the statute, which provides for
even heavier penalties if a second crime can be proved, is to mandate
forfeiture regardless. See 31 U.S.C. § 5322(b); 18 U.S.C.
[524 U.S. 352] § 982(a)(1). It is common practice, of
course, for a cash courier not to confess a tainted source, but to
stick to a well rehearsed story. The kingpin, the real owner,
need not come forward to make a legal claim to the funds. He has
his own effective enforcement measures to ensure delivery at
destination or return at origin if the scheme is thwarted. He is,
of course, not above punishing the courier who deviates from the story
and informs. The majority is wrong, then, to assume in personam
forfeitures cannot affect kingpins, as their couriers will claim to own
the money and pay the penalty out of their masters' funds. See
ante at 328, n. 3. Even if the courier confessed, the kingpin
could face an in personam forfeiture for his agent's authorized acts,
for the kingpin would be a co-principal in the commission of the
crime. See 18 U.S.C. § 2.
In my view, forfeiture of all the unreported
currency is sustainable whenever a willful violation is proven.
The facts of this case exemplify how hard it can be to prove ownership
and other crimes, and they also show respondent is far from an innocent
victim. For one thing, he was guilty of repeated lies to
Government agents and suborning lies by others. Customs
inspectors told respondent of his duty to report cash. He and his
wife claimed they had only $15,000 with them, not the $357,144 they in
fact had concealed. He then told customs inspectors a friend
named Abe Ajemian had lent him about $200,000. Ajemian denied
this. A month later, respondent said Saeed Faroutan had lent him
$170,000. Faroutan, however, said he had not made the loan, and
respondent had asked him to lie. Six months later, respondent
resurrected the fable of the alleged loan from Ajemian, though Ajemian
had already contradicted the story. As the District Court found,
respondent "has lied, and has had his friends lie." Tr. 54 (Jan.
19, 1995). He had proffered a "suspicious and confused story,
documented in the poorest way, and replete with past
misrepresentation." Id. at 61-62. [524 U.S. 353]
Respondent told these lies, moreover, in most
suspicious circumstances. His luggage was stuffed with more than
a third of a million dollars. All of it was in cash, and much of
it was hidden in a case with a false bottom.
The majority ratifies the District Court's "see no
evil" approach. The District Court ignored respondent's lies in
assessing a sentence. It gave him a two-level downward adjustment
for acceptance of responsibility, instead of an increase for
obstruction of justice. See id. at 62. It dismissed the
lies as stemming from "distrust for the Government" arising out of
"cultural differences." Id. at 63. While the majority is
sincere in not endorsing this excuse, ante at 337-338, n. 12, it
nonetheless affirms the fine tainted by it. This patronizing
excuse demeans millions of law-abiding American immigrants by
suggesting they cannot be expected to be as truthful as every other
citizen. Each American, regardless of culture or ethnicity, is
equal before the law. Each has the same obligation to refrain
from perjury and false statements to the Government.
In short, respondent was unable to give a single
truthful explanation of the source of the cash. The multitude of
lies and suspicious circumstances points to some form of crime.
Yet, though the Government rebutted each and every fable respondent
proffered, it was unable to adduce affirmative proof of another crime
in this particular case.
Because of the problems of individual proof,
Congress found it necessary to enact a blanket punishment. See
S.Rep. No. 99-130, p. 21 (1985); see also Drug Money Laundering Control
Efforts, Hearing before the Subcommittee on Consumer and Regulatory
Affairs of the Senate Banking, Housing, and Urban Affairs Committee,
101st Cong., 1st Sess., 84 (1989) (former IRS agent found it
"unbelievably difficult" to discern which money flows were
legitimate and which were tied to crime). One of the few reliable
warning signs of some serious crimes is the use of large sums of
cash. See id. at 83. So Congress [524 U.S. 354] punished
all cash smuggling or nonreporting, authorizing single penalties for
the offense alone and double penalties for the offense coupled with
proof of other crimes. See 31 U.S.C. §§ 5322(a),
(b). The requirement of willfulness, it judged, would be enough
to protect the innocent. See ibid. The majority
second-guesses this judgment without explaining why Congress' blanket
approach was unreasonable.
Money launderers will rejoice to know they face
forfeitures of less than 5% of the money transported, provided they
hire accomplished liars to carry their money for them. Five
percent, of course, is not much of a deterrent or punishment; it is
comparable to the fee one might pay for a mortgage lender or
broker. Cf. 15 U.S.C. § 1602(aa)(1)(B) (high-cost mortgages
cost more than 8% in points and fees). It is far less than the
20-26% commissions some drug dealers pay money launderers. See
Hearings on Money Laundering and the Drug Trade before the Subcommittee
on Crime of the House Judiciary Committee, 105th Cong., 1st Sess. ___
(1997) (testimony of M. Zeldin); Andelman, The Drug Money Maze, 73
Foreign Affairs 108 (July/August 1994). Since many couriers evade
detection, moreover, the average forfeiture per dollar smuggled could
amount, courtesy of today's decision, to far less than 5%. In any
event, the fine permitted by the majority would be a modest cost of
doing business in the world of drugs and crime. See US/Mexico
Bi-National Drug Threat Assessment 84 (Feb. 1997) (to drug dealers,
transaction costs of 13%-15% are insignificant compared to their
enormous profit margins).
Given the severity of respondent's crime, the
Constitution does not forbid forfeiture of all of the smuggled or
unreported cash. Congress made a considered judgment in setting
the penalty, and the Court is in serious error to set it aside.
III
The Court's holding may in the long run undermine
the purpose of the Excessive Fines Clause. One of the main [524
U.S. 355] purposes of the ban on excessive fines was to prevent the
King from assessing unpayable fines to keep his enemies in debtor's
prison. See Browning-Ferris Indus. of Vt., Inc. v. Kelco
Disposal, Inc., 492 U.S. 257, 267 (1989); 4 W. Blackstone, Commentaries
on the Laws of England 373 (1769) ("[C]orporal punishment, or a stated
imprisonment, . . . is better than an excessive fine, for that amounts
to imprisonment for life. And this is the reason why fines in the
king's court are frequently denominated ransoms . . . .") Concern
with imprisonment may explain why the Excessive Fines Clause is coupled
with, and follows right after, the Excessive Bail Clause. While
the concern is not implicated here-for of necessity the money is there
to satisfy the forfeiture-the Court's restrictive approach could
subvert this purpose. Under the Court's holding, legislators may
rely on mandatory prison sentences in lieu of fines. Drug lords
will be heartened by this, knowing the prison terms will fall upon
their couriers while leaving their own wallets untouched.
At the very least, today's decision will encourage
legislatures to take advantage of another avenue the majority leaves
open. The majority subjects this forfeiture to scrutiny because
it is in personam, but it then suggests most in rem forfeitures (and
perhaps most civil forfeitures) may not be fines at all. Ante at
331, 340-340, and n. 16; but see ante at 331, n. 6. The
suggestion, one might note, is inconsistent or at least in tension with
Austin v. United States, 509 U.S. 602 (1993). In any event, these
remarks may encourage a legislative shift from in personam to in rem
forfeitures, avoiding mens rea as a predicate and giving owners fewer
procedural protections. By invoking the Excessive Fines Clause
with excessive zeal, the majority may, in the long run, encourage
Congress to circumvent it.
IV
The majority's holding may not only jeopardize a
vast range of fines, but also leave countless others unchecked by [524
U.S. 356] the Constitution. Nonremedial fines may be subject to
deference in theory, but overbearing scrutiny in fact. So-called
remedial penalties, most in rem forfeitures, and perhaps civil fines
may not be subject to scrutiny at all. I would not create these
exemptions from the Excessive Fines Clause. I would also accord
genuine deference to Congress' judgments about the gravity of the
offenses it creates. I would further follow the long tradition of
fines calibrated to the value of the goods smuggled. In these
circumstances, the Constitution does not forbid forfeiture of all of
the $357,144 transported by respondent. I dissent.
Footnotes
THOMAS, J., lead opinion (Footnotes)
― 1. The statutory reporting requirement provides:
[A] person or an agent or bailee of the person shall file a report . . . when the person, agent, or bailee knowingly --
(1) transports, is about to transport, or has
transported, monetary instruments of more than $10,000 at one time --
(A) from a place in the United States to or through a place outside the United States. . . .
31 U.S.C. § 5316(a).
― 2. Section 5322(a) provides: "A person
willfully violating this subchapter . . . shall be fined not more than
$250,000, or imprisoned for not more than five years, or both."
§ 5322(a).
― 3. Although the currency reporting statute provides
that "a person or an agent or bailee of the person shall file a
report," 31 U.S.C. § 5316(a), the statute ordering the criminal
forfeiture of unreported currency provides that "[t]he court, in
imposing sentence on a person convicted of" failure to file the
required report, "shall order that the person forfeit to the United
States" any property "involved in" or "traceable to" the offense, 18
U.S.C. § 982(a)(1). The combined effect of these two
statutes is that an owner of unreported currency is not subject to
criminal forfeiture if his agent or bailee is the one who fails to file
the required report, because such an owner could not be convicted of
the reporting offense. The United States endorsed this
interpretation at oral argument in this case. See Tr. of Oral
Arg. 24-25.
For this reason, the dissent's speculation about the
effect of today's holding on "kingpins" and "cash couriers" is
misplaced. See post at 352, 354. Section 982(a)(1)'s
criminal, in personam forfeiture reaches only currency owned by someone
who himself commits a reporting crime. It is unlikely that the
Government, in the course of criminally indicting and prosecuting a
cash courier, would not bother to investigate the source and true
ownership of unreported funds.
― 4. We do not suggest that, merely because the
forfeiture of respondent's currency in this case would not serve a
remedial purpose, other forfeitures may be classified as nonpunitive
(and thus not "fines") if they serve some remedial purpose as well as
being punishment for an offense. Even if the Government were
correct in claiming that the forfeiture of respondent's currency is
remedial in some way, the forfeiture would still be punitive in
part. (The Government concedes as much.) This is sufficient
to bring the forfeiture within the purview of the Excessive Fines
Clause. See Austin v. United States, 509 U.S. 602, 621-622 (1993).
― 5. The "guilty property" theory behind in rem
forfeiture can be traced to the Bible, which describes property being
sacrificed to God as a means of atoning for an offense. See
Exodus 21: 28. In medieval Europe and at common law, this concept
evolved into the law of deodand, in which offending property was
condemned and confiscated by the church or the Crown in remediation for
the harm it had caused. See 1 M. Hale, Pleas of the Crown 420-424
(1st Am. ed. 1847); 1 W. Blackstone, Commentaries on the Law of England
290-292 (1765); O. Holmes, The Common Law 10-13, 23-27 (M. Howe ed.
1963).
― 6. It does not follow, of course, that all modern
civil in rem forfeitures are nonpunitive, and thus beyond the coverage
of the Excessive Fines Clause. Because some recent federal
forfeiture laws have blurred the traditional distinction between civil
in rem and criminal in personam forfeiture, we have held that a modern
statutory forfeiture is a "fine" for Eighth Amendment purposes if it
constitutes punishment even in part, regardless of whether the
proceeding is styled in rem or in personam. See Austin v. United
States, supra, at 621-622 (although labeled in rem, civil forfeiture of
real property used "to facilitate" the commission of drug crimes was
punitive in part, and thus subject to review under the Excessive Fines
Clause).
― 7. The First Congress explicitly rejected in
personam forfeitures as punishments for federal crimes, see Act of Apr.
30, 1790, ch. 9, § 24, 1 Stat. 117 ("[N]o conviction or judgment .
. . shall work corruption of blood, or any forfeiture of estate"), and
Congress reenacted this ban several times over the course of two
centuries. See Rev. Stat. § 5326 (1875); Act of Mar. 4,
1909, ch. 321, § 341, 35 Stat. 1159; Act of June 25, 1948, ch.
645, § 3563, 62 Stat. 837, codified at 18 U.S.C. § 3563 (1982
ed.); repealed effective Nov. 1, 1987, Pub. L. 98-473, 98 Stat. 1987.
It was only in 1970 that Congress resurrected the
English common law of punitive forfeiture to combat organized crime and
major drug trafficking. See Organized Crime Control Act of 1970,
18 U.S.C. § 1963, and Comprehensive Drug Abuse Prevention and
Control Act of 1970, 21 U.S.C. § 848(a). In providing for
this mode of punishment, which had long been unused in this country,
the Senate Judiciary Committee acknowledged that "criminal forfeiture .
. . represents an innovative attempt to call on our common law heritage
to meet an essentially modern problem." S.Rep. No. 91-617, p. 79
(1969). Indeed, it was not until 1992 that Congress provided for
the criminal forfeiture of currency at issue here. See 18 U.S.C.
§ 982(a).
― 8. Although the term "instrumentality" is of recent
vintage, see Austin v. United States, 509 U.S. at 627-628 (SCALIA, J.,
concurring in part and concurring in judgment), it fairly characterizes
property that historically was subject to forfeiture because it was the
actual means by which an offense was committed. See infra this
page; see, e.g., J. W. Goldsmith, Jr.-Grant Co. v. United States, 254
U.S. 505, 508-510 (1921). "Instrumentality" forfeitures have
historically been limited to the property actually used to commit an
offense and no more. See United States v. Austin, supra, at
627-628 (SCALIA, J., concurring in part and concurring in
judgment). A forfeiture that reaches beyond this strict
historical limitation is ipso facto punitive, and therefore subject to
review under the Excessive Fines Clause.
― 9. The currency in question is not an
instrumentality, in any event. The Court of Appeals reasoned that
the existence of the currency as a "precondition" to the reporting
requirement did not make it an "instrumentality" of the offense.
See 84 F.3d at 337. We agree; the currency is merely the subject
of the crime of failure to report. Cash in a suitcase does not
facilitate the commission of that crime as, for example, an automobile
facilitates the transportation of goods concealed to avoid taxes.
See, e.g., J. W. Goldsmith, Jr.-Grant Co. v. United States, supra, at
508. In the latter instance, the property is the actual means by
which the criminal act is committed. See Black's Law Dictionary
801 (6th ed. 1990) ("Instrumentality" is "[s]omething by which an end
is achieved; a means, medium, agency").
― 10. At oral argument, respondent urged that a
district court's determination of excessiveness should be reviewed by
an appellate court for abuse of discretion. See Tr. of Oral Arg.
32. We cannot accept this submission. The factual findings
made by the district courts in conducting the excessiveness inquiry, of
course, must be accepted unless clearly erroneous. See Anderson
v. Bessemer City, 470 U.S. 564, 574-575 (1985). But the question
of whether a fine is constitutionally excessive calls for the
application of a constitutional standard to the facts of a particular
case, and, in this context, de novo review of that question is
appropriate. See Ornelas v. United States, 517 U.S. 690, 697
(1996).
― 11. The only question before this Court is whether
the full forfeiture of respondent's $357,144, as directed by §
982(a)(1), is constitutional under the Excessive Fines Clause. We
hold that it is not. The Government petitioned for certiorari
seeking full forfeiture, and we reject that request. Our holding
that full forfeiture would be excessive reflects no judgment that "a
forfeiture of even $15,001 would have suffered from a gross
disproportion," nor does it "affir[m] the reduced $15,000 forfeiture on
de novo review." Post at 349. Those issues are simply not
before us. Nor, indeed, do we address in any respect the validity
of the forfeiture ordered by the District Court, including whether a
court may disregard the terms of a statute that commands full
forfeiture: as noted, supra, at 327, respondent did not
cross-appeal the $15,000 forfeiture ordered by the District
Court. The Court of Appeals thus declined to address the $15,000
forfeiture, and that question is not properly presented here either.
― 12. Contrary to the dissent's contention, the
nature of the nonreporting offense in this case was not altered by
respondent's "lies" or by the "`suspicious circumstances' surrounding
his transportation of his currency." See post at 352-353. A
single willful failure to declare the currency constitutes the crime,
the gravity of which is not exacerbated or mitigated by "fable[s]" that
respondent told one month, or six months, later. See post at
352. The Government indicted respondent under 18 U.S.C. §
1001 for "lying," but that separate count did not form the basis of the
nonreporting offense for which § 982(a)(1) orders forfeiture.
Further, the District Court's finding that
respondent's lies stemmed from a fear of the Government because of
"cultural differences," supra at 326, does not mitigate the gravity of
his offense. We reject the dissent's contention that this finding
was a "patronizing excuse" that "demeans millions of law-abiding
American immigrants by suggesting they cannot be expected to be as
truthful as every other citizen." Post at 353. We are
confident that the District Court concurred in the dissent's
incontrovertible proposition that "[e]ach American, regardless of
culture or ethnicity, is equal before the law." Ibid. The
District Court did nothing whatsoever to imply that "cultural
differences" excuse lying, but rather made this finding in the context
of establishing that respondent's willful failure to report the
currency was unrelated to any other crime -- a finding highly relevant
to the determination of the gravity of respondent's offense. The
dissent's charge of ethnic paternalism on the part of the District
Court finds no support in the record, nor is there any indication that
the District Court's factual finding that respondent "distrust[ed] . .
. the Government," see supra at 326, was clearly erroneous.
― 13. Nor, contrary to the dissent's repeated
assertion, see post at 344, 346-351, 354, 356, is respondent a
"smuggler." Respondent owed no customs duties to the Government,
and it was perfectly legal for him to possess the $357,144 in cash and
to remove it from the United States. His crime was simply failing
to report the wholly legal act of transporting his currency.
― 14. In considering an offense's gravity, the other
penalties that the Legislature has authorized are certainly relevant
evidence. Here, as the Government and the dissent stress,
Congress authorized a maximum fine of $250,000 plus five years'
imprisonment for willfully violating the statutory reporting
requirement, and this suggests that it did not view the reporting
offense as a trivial one. That the maximum fine and Guideline
sentence to which respondent was subject were but a fraction of the
penalties authorized, however, undercuts any argument based solely on
the statute, because they show that respondent's culpability relative
to other potential violators of the reporting provision -- tax evaders,
drug kingpins, or money launderers, for example -- is small
indeed. This disproportion is telling notwithstanding the fact
that a separate Guideline provision permits forfeiture if mandated by
statute, see post at 350-351. That Guideline, moreover, cannot
override the constitutional requirement of proportionality review.
― 15. Respondent does not argue that his wealth or
income are relevant to the proportionality determination or that full
forfeiture would deprive him of his livelihood, see supra at 335-336,
and the District Court made no factual findings in this respect.
― 16. The nonpunitive nature of these early
forfeitures was not lost on the Department of Justice, in commenting on
the punitive forfeiture provisions of the Organized Crime Control Act
of 1970:
"The concept of forfeiture as a criminal penalty
which is embodied in this provision differs from other presently
existing forfeiture provisions under Federal statutes where the
proceeding is in rem against the property and the thing which is
declared unlawful under the statute, or which is used for an unlawful
purpose, or in connection with the prohibited property or transaction,
is considered the offender, and the forfeiture is no part of the
punishment for the criminal offense. Examples of such forfeiture
provisions are those contained in the customs, narcotics, and revenue
laws."
S.Rep. No. 91-617, p. 79 (1969) (emphasis added).
― 17. In each of the statutes from the early
Congresses cited by the dissent, the activities giving rise to the
monetary forfeitures, if undetected, were likely to cause the
Government losses in customs revenue. The forfeiture imposed by
the Acts of Aug. 4, 1790 and Mar. 2, 1799, was not simply for
"transferring goods from one ship to another," post at 346, but rather
for doing so "before such ship . . . shall come to the proper place for
the discharge of her cargo . . . and be there duly authorized by the
proper officer or officers of the customs to unlade" the goods, see 1
Stat. 157, 158, 648, whereupon duties would be assessed.
Similarly, the forfeiture imposed by the Act of Mar. 3, 1823, was for
failing to deliver the ship's manifest of cargo -- which was to list
"merchandise subject to duty" -- to the collector of customs. See
Act of Mar. 2, 1821, § 1, 3 Stat.616; Act of Mar. 3, 1823, §
1, id. at 781. And the "invoices" that if "false" gave rise to
the forfeiture imposed by the Act of Mar. 3, 1863, were to include the
value or quantity of any dutiable goods. § 1, 12 Stat.
737-738.
― 18. The nonpunitive nature of the monetary
forfeitures was also reflected in their procedure: like
traditional in rem forfeitures, they were brought as civil actions, and
as such are distinguishable from the punitive criminal fine at issue
here. Instead of instituting an information of libel in rem
against the goods, see, e.g., Locke v. United States, 7 Cranch 339
(1813), the Government filed "a civil action of debt" against the
person from whom it sought payment. See, e.g., Stockwell v.
United States, 13 Wall. 531, 541-542 (1871). In both England and
the United States, an action of debt was used to recover import duties
owed the Government, being
the general remedy for the recovery of all sums
certain, whether the legal liability arise from contract, or be created
by a statute. And the remedy as well lies for the government
itself as for a citizen.
United States v. Lyman, 26 F. Cas. 1024, 1030 (No. 15,647) (CC Mass.
1818) (Story, C. J.). Thus suits for the payment of monetary
forfeitures were viewed no differently than suits for the customs
duties themselves.
― 19. One Lot Emerald Cut Stones differs from this
case in the most fundamental respect. We concluded that the
forfeiture provision in Emerald Cut Stones was entirely remedial, and
thus nonpunitive, primarily because it "provide[d] a reasonable form of
liquidated damages" to the Government. 409 U.S. at 237. The
additional fact that such a remedial forfeiture also "serves to
reimburse the Government for investigation and enforcement expenses,"
ibid.; see post at 346, is essentially meaningless, because even a
clearly punitive criminal fine or forfeiture could be said in some
measure to reimburse for criminal enforcement and investigation.
Contrary to the dissent's assertion, this certainly does not mean that
the forfeiture in this case -- which as the dissent acknowledges, see
post at 344 (respondent's forfeiture is a "fine"), 358 (§
982(a)(1) imposes a "punishment"), is clearly punitive -- "would have
to [be treated] as nonpunitive." Post at 346.