Derechos y obligaciones de las partes

The Supreme Court’s proportionality analysis in reviewing punitive forfeitures resembles its approach to assessing punitive damages and differs from its approach to reviewing criminal sanctions, primarily due to the absence of legislative limits on the dollar amount subject to forfeiture.

In the forfeiture context, the Court does not defer to the legislative determination that any property involved in the offense can be forfeited.

Instead, it undertakes its own analysis of the seriousness of the conduct and the proportionality of the forfeited amount to the gravity of the conduct.

Where forfeiture of property is punishment for an offense, it is subject to the proportionality requirement of the Excessive Fines Clause of the Eighth Amendment. The Court in United States v. Bajakajian adopted a gross proportionality test for punitive forfeitures—the same test used in determining whether a criminal prison sentence is excessive under the Cruel and Unusual Punishment Clause.²⁷² Applying this test to the

272 United States v. Bajakajian, 524 U.S. 321, 336 (1998).

2008] PUNITIVE DAMAGES 149

forfeiture of $357,144 for the crime of willful failure to report the transporting of currency in excess of $10,000, the Court found that the offense was not very serious in view of the fact that it is solely a reporting offense,²⁷³ its violation by the defendant did not involve any other illegal activities,²⁷⁴ and any harm caused was minimal.²⁷⁵ In addition, the Court noted that the maximum fine for this offense under the Sentencing Guidelines was $5000.²⁷⁶ Comparing the gravity of the defendant’s offense to the forfeiture of $357,144, the Court found the forfeited amount was grossly disproportional to the offense.²⁷⁷

The Court limited its proportionality review of forfeitures to those that involve punishment based on in personam criminal forfeitures following conviction of a crime.²⁷⁸ It excluded from the reach of the Excessive Fines Clause both civil in rem forfeitures²⁷⁹ and forfeitures that are remedial and not punitive in nature.²⁸⁰ It concluded the forfeiture of the currency involved in the failure to report offense constituted punishment because the forfeiture was predicated on the commission of this offense in personam and forfeiture was a sanction authorized upon conviction.²⁸¹

The dissent would have accepted the Congressional decision to require the forfeiture of the full amount of currency involved in the reporting violation. According to the dissent, Congress fixed the fine for this offense as a fine plus forfeiture of all the currency.²⁸² Moreover, the dissent faulted the majority opinion for not granting any deference, much less substantial deference, to the decision of Congress to authorize full forfeiture of the currency.²⁸³ Addressing the gravity of the offense, the dissent viewed it as serious, justifying the forfeiture of all of the cash carried by the defendant.²⁸⁴

The crux of the case seems to turn on the question of limits on the dollar value of the property to be forfeited. The dissent viewed the forfeiture statute as imposing a limit on punishment by forfeiture—a person cannot forfeit more than the full amount of the property involved in

273 Id. at 337.

274 Id. at 337–38.

275 Id. at 339.

276 Id. at 338.

277 Id. at 339 n.14, 340 (acknowledging that the maximum fine in the statute was $250,000, but discounting this maximum and stating that the maximum would apply only to more serious violations of the statute).

278 Id. at 332.

279 Id. at 331.

280 Id. at 329.

281 Id. at 328.

282 Id. at 350 (Kennedy, J., dissenting) (noting that the fine is to be doubled when the reporting offense is committed while violating another law of the United States) (citing 31 U.S.C. § 5322(b) (2000)).

283 Id. at 348.

284 Id. at 348, 351.

150 CONNECTICUT LAW REVIEW [Vol. 41:109

the reporting violation.²⁸⁵ Congress limited the forfeiture punishment to the value of the property and did not authorize forfeiture of anything more.

The majority, on the other hand, did not seem to think that Congress imposed any limit on the amount or value of the property subject to forfeiture. Because the amount of the currency involved in a reporting violation can vary widely, from $10,001 to millions of dollars, the majority was unwilling to permit forfeitures of substantial sums without a proportionality assessment of the amount forfeited to the gravity of the offense.

The statutory language requiring forfeiture of “any property . . . involved in such offense,”²⁸⁶ authorizes punishment without any dollar limit. In essence, Congress did not make a judgment about the limits of the amount that could be forfeited or about the appropriate punishment for violation of this offense. The forfeiture statute, therefore, permits different punishment of offenders who commit the same offense based on the amount of money involved and without regard to any differences in culpability. For example, the person who fails to report $20,000 is punished by forfeiture of $20,000 whereas the person who fails to report

$5 million is punished by a forfeiture of $5 million. If there is nothing except the amount of the currency to distinguish the two offenders, the difference in punishment has no relationship to the gravity of the offense.

The majority in Bajakajian subjected the punishment of forfeiture to the proportionality principle. The Court adopted the standard of gross disproportionality, rejecting a test of strict proportionality due to the difficulty of determining the gravity of an offense, a determination the Court described as inherently imprecise.²⁸⁷ Although it borrowed this standard from the Court’s proportionality cases in the context of prison sentences, the Court in Bajakajian did not adopt the entire test articulated in Harmelin and reaffirmed in Ewing. In those cases, the plurality opinions used gross disproportionality as a threshold test, and if the prison sentence met that test, then the review should proceed to compare the sentence with the punishment authorized for other crimes in the same jurisdiction and with the punishment for the same crime in other jurisdictions.²⁸⁸ The majority opinion by Justice Thomas made no mention of a threshold as part of the proportionality test for punitive forfeitures.

The majority opinion, however, as part of its evaluation of the seriousness of the offense, used an intrajurisdictional analysis and looked at other punishments imposed for the same violation in other parts of the

285 Id. at 348–49.

286 18 U.S.C. § 982(a)(1) (2000).

287 United States v. Bajakajian, 524 U.S. 321, 336 (1998).

288 Ewing v. California, 538 U.S. 11, 23–24 (2003) (plurality opinion); Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J., concurring); Bajakajian, 524 U.S. at 338.

2008] PUNITIVE DAMAGES 151

federal code.²⁸⁹ Specifically, the Court looked at the prison sentence and fine that could be imposed for violation of the currency reporting offense.

It noted that under the sentencing guidelines the maximum fine that could be imposed on Bajakajian was $5000 and the maximum sentence was six months imprisonment.²⁹⁰ These other penalties for the offense, according to the Court, “confirm a minimal level of culpability.”²⁹¹ The Court rejected the statutory maximum of five years imprisonment and a $250,000 fine for violation of the currency reporting statute²⁹² in assessing the gravity of the offense, and instead relied on the lower Sentencing Guidelines penalties of six months and a $5000 fine. The Court stated that the penalties authorized by the sentencing guidelines “undercut 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.”²⁹³

Comparing the amount forfeited to the maximum fine under the sentencing guidelines, the Court concluded that the forfeiture of $357,144 exceeded the fine of $5000 by “many orders of magnitude.”²⁹⁴ This comparison resembles the ratio analysis used by the Court in the punitive damages proportionality review, although the Court in Bajakajian did not state that any ratios between the amount forfeited and the fine would be presumptively disproportionate.

The proportionality review in the forfeiture area also resembles the punitive damages analysis in the Court’s willingness to make its own judgment about the gravity of the conduct subject to punishment. Without guidance from Congress as to the dollar limit of the property to be forfeited, the Court was free to use its own judgment as to the seriousness of the offense and the amount proportional to the offense. The absence of limits in the forfeiture statute meant that the Court had to engage in a more active proportionality review and could not rely on a legislative judgment regarding the appropriate amount of punishment for the offense.