Austin v. United States

United States Supreme Court

509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993)

 

            Under the U.S. Code, § 881 (a)(4), a “conveyance” is subject to forfeiture if it is used to transport “controlled substances.”  Under § 881(a)(7), real estate may be forfeited if it is used to  commit a drug-related felony.  In this case the Supreme Court considers whether such forfeitures are limited by the Excessive Fines Clause of the Eighth Amendment.

 

Justice Blackmun delivered the opinion of the Court.

 

            ... On August 2, 1990, petitioner Richard Lyle Austin was indicted on four counts of violating South Dakota’s drug laws.  Austin ultimately pleaded guilty to one count of possessing cocaine with intent to distribute and was sentenced by the state court to seven years’ imprisonment.  On September 7, the United States filed an in rem action in the United States District Court for the District of South Dakota seeking forfeiture of Austin’s mobile home and auto body shop under 21 U.S.C. §§ 881 (a)(4) and (a)(7).  Austin filed a claim and an answer to the complaint.

 

            On February 4, 1991, the United States made a motion, supported by an affidavit from Sioux Falls Police Officer Donald Satterlee, for summary judgment.  According to Satterlee’s affidavit, Austin met Keith Engebretson at Auston’s body shop on June 13, 1990, and agreed to sell cocaine to Engebretson.  Austin left the shop, went to his mobile home, and returned to the shop with two grams of cocaine which he sold to Engebretson.  State authorities executed a search warrant on the body shop and mobile home the following day.  They discovered small amounts of marijuana and cocaine, a .22 caliber revolver, drug paraphernalia, and approximately $4,700 in cash.  In opposing summary judgment, Austin argued that forfeiture of the properties would violate the Eighth Amendment.  The District Court rejected this argument and entered summary judgment for the United States....

 

            The United States Court of Appeals for the Eighth Circuit “reluctantly agree[d] with the government” and affirmed. ...  Although it thought that “the principle of proportionality should be applied in civil actions that result in harsh penalties,” ... and that the Government was “exacting too high a penalty in relation to the offense committed,” ... the court felt constrained from holding the forfeiture unconstitutional.  It cited this Court’s decision in Calero-Toledo v. Pearson Yacht Leasing Co. ... (1974) for the proposition that, when the Government is proceeding against property in rem, the guilt or innocence of the property’s owner “is constitutionally irrelevant.” ...  ...

            We granted certiorari ... to resolve an apparent conflict ... over the applicability of the Eighth Amendment to in rem civil forfeitures. ...

 

II

 

            Austin contends that the Eighth Amendment’s Excessive Fines Clause applies to in rem civil forfeiture proceedings. ... We have had occasion to consider this Clause only once before.  In Browning-Ferris Industries v. Kelco Disposal, Inc. ... (1989), we held that the Excessive Fines Clause does not limit the award of punitive damages to a private party in a civil suit when the government neither has prosecuted the action nor has any right to receive a share of the damages. ...  The Court’s opinion and Justice O’Connor’s opinion, concurring in part and dissenting in part, reviewed in some detail the history of the Excessive Fines Clause. ...  The Court concluded that both the Eighth Amendment and § 10 of the English Bill of Rights of 1689, from which it derives, were intended to prevent the government from abusing its power to punish, ... and therefore “that the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government.” ...

 

            We found it unnecessary to decide in Browning-Ferris whether the Excessive Fines Clause applies only to criminal cases. ...  The United States now argues that “any claim that the government’s conduct in a civil proceeding is limited by the Eighth Amendment generally, or by the Excessive Fines Clause in particular, must fail unless the challenged governmental action, despite its label, would have been recognized as a criminal punishment at the time the Eighth Amendment was adopted.” ...  It further suggests that the Eighth Amendment cannot apply to a civil proceeding unless that proceeding is so punitive that it must be considered criminal. ...

 

            Some provisions of the Bill of Rights are expressly limited to criminal cases.  The Fifth Amendment’s Self-Incrimination Clause, for example, provides:  “No person ... shall be compelled in any criminal case to be a witness against himself.”  The protections provided by the Sixth Amendment are explicitly confined to “criminal prosecutions.” ...  The text of the Eighth Amendment includes no similar limitations. ...

 

            Nor does the history of the Eighth Amendment require such a limitation.  Justice O’Connor noted in Browning-Ferris:  “Consideration of the Eighth Amendment immediately followed consideration of the Fifth Amendment.  After deciding to confine the benefits of the Self-Incrimination Clause of the Fifth Amendment to criminal proceedings, the Framers turned their attention to the Eighth Amendment.  There were no proposals to limit that Amendment to criminal proceedings. ...” Section 10 of the English Bill of Rights of 1689 is not expressly limited to criminal cases either.  The original draft of § 10 as introduced in the House of Commons did contain such a restriction, but only with respect to the bail clause:  “The requiring excessive Bail of Persons committed in criminal Cases, and imposing excessive Fines, and illegal Punishments, to be prevented.” ...  The absence of any similar restriction in the other two clauses suggests that they were not limited to criminal cases.  In the final version, even the reference to criminal cases in the bail clause was omitted. ...

 

            The purpose of the Eighth Amendment, putting the Bail Clause to one side, 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.” ...  “The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law.” . .....   Thus, the question is not, as the United States would have it, whether forfeiture under §§ 881 (a)(4) and (a)(7) is civil or criminal, but rather whether it is punishment. ...

 

            In considering this question, we are mindful of the fact that sanctions frequently serve more than one purpose.  We need not exclude the possibility that a forfeiture serves remedial purposes to conclude 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, then, to consider whether, at the time the Eighth Amendment was ratified, forfeiture was understood at least in part as punishment and whether forfeiture under §§ 881(a)(4) and (a)(7) should be so understood today.

 

III

 

A

 

            Three kinds of forfeiture were established in England at the time the Eighth Amendment was ratified in the United States:  deodand [forfeiture of an inanimate object causing the accidental death of a King’s subject], forfeiture upon conviction for a felony or treason, and statutory forfeiture. ...  Each was understood, at least in part, as imposing punishment. 

 

B

 

            Of England’s three kinds of forfeiture, only the third took hold in the United States.  “Deodands did not become part of the common-law tradition of this country.” ...  The Constitution forbids forfeiture of estate as a punishment for treason “except during the Life of the Person attainted,” ..., and the First Congress also abolished forfeiture of estate as a punishment for felons. ...  But [l]ong before the adoption of the Constitution the common law courts in the Colonies -- and later in the states during the period of Confederation -- were exercising jurisdiction in rem in the enforcement of [English and local] forfeiture statutes.” ...

 

            The First Congress passed laws subjecting ships and cargoes involved in customs offenses to forfeiture.  It does not follow from that fact, however, that the First Congress thought such forfeitures to be beyond the purview of the Eighth Amendment.  Indeed, examination of those laws suggests that the First Congress viewed forfeiture as punishment. ...    It is also of some interest that “forfeit” is the word Congress used for fine. ...  Other early forfeiture statutes follow the same pattern. ...

 

            Our cases also have recognized that statutory in rem forfeiture imposes punishment.  In Peisch v. Ware ...(1808), for example, the Court held that goods removed from the custody of a revenue officer without the payment of duties, should not be forfeitable for that reason unless they were removed with the consent of the owner or his agent. ...

 

            The same understanding of forfeiture as punishment runs through our cases rejecting the “innocence” of the owner as a “common-law defense to forfeiture. ...  In these cases, forfeiture has been justified on two theories -- that the property itself is “guilty” of the offense, and that the owner may be held accountable for the wrongs of others to whom he entrusts his property.  Both theories rest, at bottom, on the notion that the owner has been negligent in allowing his property to be misused and that he is properly punished for that negligence. ...

 

            In sum, even though this Court has rejected the “innocence” of the owner as a common-law defense to forfeiture, it consistently has recognized that forfeiture serves, at least in part, to punish the owner. ... We conclude, therefore, that forfeiture generally and statutory in rem forfeiture in particular historically have been understood, at least in part, as punishment.

 

IV

 

            We turn next to consider whether forfeitures under 21 U.S.C. §§ 881(a)(4) and (a)(7) 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, as 881(a)(4) and (a)(7) expressly provide an “innocent owner” defense.  These exemptions serve to focus the provisions on the culpability of the owner in a way that makes them look more like punishment, not less.  The inclusion of innocent-owner defenses in §§ 881(a)(4) and (a)(7) reveals a similar congressional intent to punish only those involved in drug trafficking.

 

            Furthermore, Congress has chosen to tie forfeiture directly to the commission of drug offenses.  Thus, under § 881 (a)(4), a conveyance is forfeitable if it is used or intended for use to facilitate the transportation of controlled substances, their raw materials, or the equipment used to manufacture or distribute them.  Under § 881(a)(7), real property is forfeitable if it is used or intended for use to facilitate the commission of a drug-related crime punishable by more than one year’s imprisonment. . .....

 

            The Government argues that §§ 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 from the threat of continued drug dealing.” ...  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 trade. ...

 

            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 liquor. ...  In that case 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 “instruments” of the drug trade must meet the same fate as Pennsylvania’s effort to characterize the 1958 Plymouth 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 violations as “a reasonable form of liquidated damages.” ...  But the dramatic variations in the value of conveyances and real property forfeitable under §§ 881(a)(4) and (a)(7) undercut any similar argument with respect to those provisions.  The Court made this very point in Ward:  the “forfeiture of property ... [is] a penalty that ha[s] absolutely no correlation to any damages sustained by society or to the cost of enforcing the law.” ...

 

            Fundamentally, even assuming that §§ 881(a)(4) and (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 either retributive or deterrent purposes, is punishment, as we have come to understand the term.” ...  In light of the historical understanding of forfeiture as punishment, the clear forces of §§ 881(a)(4) and (a)(7) on the culpability of the owner, and the evidence that Congress understood those provisions as serving to deter and to punish, we cannot conclude that forfeiture under §§ 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 punishment for some offense,” ... and, as such, is subject to the limitations of the Eighth Amendment’s Excessive Fines Clause.

 

V

 

            Austin asks that we establish a multifactor test for determining whether a forfeiture is constitutionally “excessive.” ...  We decline that invitation.  Although the Court of Appeals opined “that the government is exacting too high a penalty in relation to the offense committed,” ... it had no occasion to consider what factors should inform such a decision because it thought it was foreclosed from engaging in the inquiry.  Prudence dictates that we allow the lower courts to consider that question in the first instance.

 

            The judgment of the Court of Appeals is reversed and the case is remedied to that court for further proceedings consistent with this opinion. …

 

 

Justice Scalia, concurring in part and concurring in the judgment.

 

… That this forfeiture works as a fine raises the excessiveness issue, on which the Court remands. I 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 personam 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 881 requires only that the Government show probable cause that the subject 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,” 21 U.S.C. 881(a)(4)(C), see also 881(a)(7), or that the property was not so used, see 881(d) (incorporating 19 U.S.C. 1615). 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.

This inquiry for statutory forfeitures has common law parallels. Even in the case of deodands, juries were careful to confiscate only the instrument of death, and not more. Thus, if a man was killed by a moving cart, the cart and its horses were deodands, but if the man died when he fell from a wheel of an immobile cart, only the wheel was treated as a deodand, since only the wheel could be regarded as the cause of death. … Our cases suggest a similar instrumentality inquiry when considering the permissible scope of a statutory forfeiture. …

 

 

Justice Kennedy, with whom The Chief Justice and Justice Thomas join, concurring in part and concurring in the judgment. ...

 

… In recounting the law's history, we risk anachronism if we attribute 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 that neither the cases nor other narratives of the common law suggest. …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 whole. …

 

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. …I would also reserve the question whether in rem forfeitures always amount to an intended punishment of the owner of forfeited property.

 

With these observations, I concur in part and concur in the judgment.