*1 UNITED STATES AUSTIN 28, 1993 April June Argued 92-6073. No. 1993Decided *2 White, Court, in which J., opinion of the Blackmun, delivered the Scalia, J., opinion an Souter, JJ., joined. filed O’Connor, Stevens, and p. Ken- judgment, post, 623. concurring in the concurring part and judg- concurring concurring and nedy, J., opinion an filed Thomas, J., joined, post, p. Rehnquist, J., ment, and in which C. L. Johnson Richard cause for petitioner. argued N. Peters. him the briefs was Scott With Miguel A. Estrada the United the cause for argued Acting Solicitor Gen him on the brief were States. With Keeney, Attorney Acting Bryson, General Assistant eral E. Booth* and Thomas for the American urging reversal were filed curiae
*Briefs amici Shapiro, R. and John by Lynch, Gerard E. Steven Civil Liberties Union Lawyers Defense Powell; Association of Criminal for the National A M. Miller. B. and Justin David Smith Teir, Dennis, Jr., Conner, and Peter Bus- Edward S. G. Roger L. Robert Rights Responsibilities Alliance for a brief for the American cemi filed urging affirmance. et al. by Grant State of Arizona et al. curiae was filed for the A brief amici Arizona, Woods, H. Holmes and Sandra Attorney General of and Cameron of the Court. delivered opinion Blackmun Justice the Excessive In this we are asked to decide whether case, to forfeitures Amendment applies Fines Clause (a)(7). 881(a)(4) hold We under U. S. C. remand case consideration that it does and therefore issue here was the forfeiture of the question excessive.
I Austin was in- 2,1990, Lyle Richard August petitioner On Dakota’s laws. dicted on four counts South violating drug to one count of ultimately pleaded possessing Austin guilty *3 intent to and sentenced cocaine with distribute was by court seven On years’ September state imprisonment. filed an in rem action in the United United States States for- District Court for District of South Dakota seeking of home and auto under body shop feiture Austin’s mobile Jamen, Lungren, Attorney L. E. General, Daniel Attorneys Assistant California, George Williamson, Attorney of General Chief Assistant Schons, Galluzzo, Gary W. Domenick General, Acting and Chief State’s Attorney Connecticut, by Attorneys of and General for their re- Bryant jurisdictions Arkansas, follows: Winston Robert spective of A Butterworth of J. Bowers Florida, Michael Robert A Marks Georgia, of Larry Stephan EchoHawk of Hawaii, Idaho, Kansas, Robert T. of of Ieyoub Chris Gorman of Richard R Kentucky, Louisiana, Michael of Curran, Jr., Joseph Carpenter Harshbarger J Maine, Scott Maryland, of of J. Kelley Michigan, Humphrey Frank Hubert H. III Massachusetts, of of Minnesota, Michael Moore P. Joseph Mazurek of Mon- Mississippi, of of Don Stenberg tana, Jeffrey Frankie Sue Nebraska, Nevada, Papa Del of of R. Howard of New Udall Hampshire, Mexico, Tom of New Michael F. Easley Preate, Carolina, Loving Oklahoma, Susan B. Ernest D. of North of Jr., Pennsylvania, Jeffrey B. Pine of Rhode T. Travis Medlock Island, of Dan Carolina, Texas, Stephen Morales Jan Graham Utah, of South Gregoire Washington, Joseph D. Rosenthal of O. Virginia, Christine Meyer of Wyoming, B. and Rosalie Simmonds Ballentine Virgin Islands. (a)(7).1 an 881(a)(4) Austin a claim and filed
U. S. C. the complaint. answer to a motion, made States United February 4,
On Police from Sioux Falls Officer an affidavit supported According for Satterlee, summary judgment. Donald at Aus- Austin met Keith affidavit, Engebretson Satterlee’s to sell cocaine 13, 1990, on and agreed tin’s June shop body mobile his shop, Austin left the went to Engebretson. of cocaine to the with two grams and returned home, shop authorities executed sold to State Engebretson. which he home the follow- and mobile body shop search warrant of marijuana small amounts discovered They ing day. and ap- revolver, drug paraphernalia, caliber cocaine, a .22 summary in cash. 13. $4,700 opposing App. proximately forfeiture of the properties Austin argued judgment, The District Court Amendment.2 violate Eighth would judgment entered argument summary rejected Id., the United States. for the Circuit States Court Appeals and affirmed. with the
“reluctantly agree[d] government” provide for the forfeiture of: statutes These vessels, “(4) vehicles, which are conveyances, including aircraft, or All use, manner to facilitate used, transport, or are intended for sale, possession, or receipt, [controlled conceálment transportation, *4 materials, in their manufacture substances, equipment used their raw and distribution] and (includ- “(7) including right, title, and interest property, any real All interest) any
ing or tract of land and any leasehold whole lot used, any improvements, or intended to appurtenances or which used, commit, or to the commission part, manner or facilitate of, subchapter year’s than punishable a of this more one violation imprisonment. .. 881(a)(4)(C) exception. “innocent provision Each has an owner” (a)(7). 2 nor required, imposed, “Excessive bail shall not be nor excessive fines Const., punishments cruel unusual U. S. Arndt. 8. inflicted.” 606 Parcel 814, 2d 817 Property, States v. One 964 F.
United
(1992).
it
that “the
of propor
Although
thought
principle
that result
harsh
should be
civil actions
applied
tionality
ibid., and that the
too
was “exacting
Government
penalties,”
committed,” id., at
in relation to the offense
high
penalty
the forfeiture
felt constrained from
818,
holding
the court
Calero
decision in
It cited this Court’s
unconstitutional.
Co.,
Pearson Yacht
(1974),
Leasing
Toledo v.
U. S.
that,
for the
when
Government
proceeding
proposition
rem,
innocence of the
against property
guilt
proper
2d,
“is
irrelevant.”
964 F.
817.
constitutionally
owner
ty’s
are constrained to
with the
agree
It
then reasoned: “We
in rem forfeit
the constitution allows
‘[i]f
Ninth Circuit
ure to be visited
innocent owners . . .
constitution
upon
review of forfeitures.’”
hardly requires
proportionality
Ibid.,
1500,
Tax Lot
United States 2d
F.
quoting
(CA9 1988),
States,
cert. denied sub nom.
v. United
Jaffee
(1989).
We
II
Austin contends that
Amendment’s Excessive
to in rem civil
Fines
Clause
applies
proceedings.
See Brief for Petitioner 10,19, 23. We have had occasion to
consider this Clause
once before.
Browning-Ferris
Vt.,
Inc.,
Industries
Inc. Kelco
opinion, Fines Clause. the of the Excessive history detail in some that both The Court concluded id., 264-268,286-297. at See § Bill of Rights and 10 English Amendment Eighth the derives, it were intended prevent from which id., see at from its abusing power punish, government Fines was that “the Excessive Clause 266-267, and therefore imposed by, limit those fines directly intended to only id., at 268.3 to, government,” payable Browning-Ferris to decide found it unnecessary We to criminal Fines the Excessive Clause applies now Id., argues 263. The United States cases. conduct in a civil pro- that the claim “any government’s Amendment by Eighth generally, limited ceeding must fail Fines Clause particular, the Excessive action, its despite governmental unless challenged a criminal punish- been label, recognized would have was adopted.” Amendment ment at time added). 16 (emphasis Brief for United States Amendment cannot the Eighth It further suggests is so puni- unless that to a civil proceeding proceeding apply Kennedy under v. must considered criminal tive that it be and United States Mendoza-Martinez, (1963), 372 U. S. (1980). Brief for Ward, States 26-27. We disagree. the Bill of are Rights expressly
Some provisions Amendment’s Self- The Fifth limited to criminal cases. “No ... Clause, person for example, provides: Incrimination to be a witness criminal case shall compelled open question whether Browning-Ferris, the Excessive we left private party brings qui tam actions in which a applies Fines Clause in the proceeds. United States shares suit the name prosecuted by instant was n. Because the suit to the United property was forfeited and because Austin’s United States States, question here. to address that we have no occasion *6 608 protections himself.” Sixth
against provided Amendment are confined to “criminal explicitly prosecu- Ward, S., tions.” See 448 at 248.4 The text U. generally Amendment includes no similar Eighth limitation. See 2, supra. n.
Nor does the history Amendment Eighth require such noted in Browning- limitation. Justice O’Connor Ferris: “Consideration of the Amendment imme- Eighth diately followed consideration of the Fifth Amendment.
4
general matter,
As a
Court’s
applying
pro
decisions
constitutional
proceedings
tections to civil
forfeiture
have adhered
this distinction
provisions
between
that are limited to criminal proceedings
provisions
Thus,
are not.
that
the Court has held
Fourth
that
Amendment’s
protection against
applies
unreasonable searches and seizures
in forfeiture
proceedings,
Plymouth
Pennsylvania,
see One 1958
Sedan v.
380 U. S.
693,
(1965);
States,
616,
Boyd
(1886),
696
v. United
116 U. S.
634
but that
not,
the Sixth Amendment’s Confrontation Clause
see
does
United States
Zucker,
(1896).
475,
v.
161 U. S.
480-482
also held
It has
that the due
process requirement
guilt in
proceeding
proved
that
a criminal
be
beyond
doubt,
(1970),
re Winship,
reasonable
see In
apply
The Double Jeopardy apply Clause has been held not in civil forfeit proceedings, only ure but in cases properly where the forfeiture could be characterized as remedial. See United States v. One Assortment 89of Firearms, 354, (1984); 465 U. S. 364 One Lot Emerald Cut Stones v. States, 232, (1972); United generally U. S. see United States v. (1989) Halper, (Double 490 U. Jeopardy S. 446-449 prohibits Clause remedial). may fairly second sanction that not be characterized as Con versely, the Clause, Fifth Amendment’s Self-Incrimination which is textu ally case[s],” limited to “criminal has applied been civil pro forfeiture ceedings, but where the forfeiture statute had made the culpability relevant, owner see United States v. States United Coin & Cur rency, (1971), 721-722 possibil where the owner faced the ity of subsequent proceedings, S., criminal Boyd, 634; see 116 U. see Ward, 242, 253-254 (1980) also States v. U. S. (discussing Boyd). And, course, protections even those associated with criminal cases may apply to a civil proceeding punitive if it is so proceeding reasonably must Kennedy considered criminal. See Mendoza-Martinez, (1963); Ward, S. 144 supra. of the Self- to confine benefits
After deciding to criminal the Fifth Amendment Inerimination Clause of their attention to the Framers turned proceedings, to limit There were no proposals Amendment. ....” Amendment to criminal proceedings ex- not Bill of Rights Section 10 of the English draft either. The original limited to criminal cases pressly *7 did contain the House of Commons § 10 as introduced in the clause: to bail but with restriction, only respect such a in crimi- committed Bail Persons “The excessive requiring Punish- Fines, excessive and illegal Cases, nal imposing (1688). The 17 10 H. C. Jour. ments, to be prevented.” in the other two clauses restriction similar any absence of In cases. not limited to criminal that were they suggests to criminal cases in the reference version, final even 3 Sess., 2d ch. M., See 1 & was omitted. W. bail clause (“That (1689) not to excessive Bail ought 441 at Large Stat. un- nor cruel and Fines be nor excessive imposed; required, The Schwoerer, see also inflicted”); L. usual Punishments (1981) (“But con- article 10 Declaration of Rights, p. thus, would seem and, to cases’ tains no reference ‘criminal cases”).5 to to all ... apply Amendment, the Bail the Eighth putting purpose to to limit the side, power
Clause to one
was
government’s
266-267,
punish.
Browning-Ferris,
is self-evidently
Punishments Clause
The Cruel and Unusual
Fines
The Excessive
concerned with
Clause
punishment.
to extract
whether
limits the
power
payments,
government’s
Wright,
(1977),
Ingraham
we concluded that
v.
in cash or added). as we of punishment, “The notion at 265 (emphasis the division between across understand cuts it, commonly Halper, States and the criminal law.” the civil that understood commonly “It is 435, 447-448 U. S. well as remedial as advance may punitive civil proceedings and remedial goals that both and, punitive conversely, goals, Id., at 447. See also criminal penalties.” be served may (1943) Hess, ex rel. Marcus 537, 554 United States not, as J., Thus, (Frankfurter, concurring). question forfeiture under it, would have States the United 881(a)(4) (a)(7) rather whether criminal, is civil or but it is punishment.6 are mindful of the fact we
In considering question, than one We serve more purpose. that sanctions frequently a forfeiture serves re- need not exclude possibility it is to the limita- to conclude that subject medial purposes however, must de- We, Excessive Fines tions of the Clause. serving it can explained termine *8 cannot “a civil sanction that Halper said in We punish. but rather a remedial purpose, be said to serve solely fairly or as also either retributive can serving only explained as we have come un- is punishment, deterrent purposes, turn, then, at S., the 490 U. 448. We derstand term.” Amendment was at the time the whether, Eighth consider as understood at least in ratified, punish- forfeiture was Kennedy v. Mendoza- reason, reliance on For this the United States’ in and United States Ward misplaced. question The those Martinez nominally penalty be reclassified as crimi whether a civil should cases was should be re safeguards prosecution the that attend a criminal nal and Ward, Mendoza-Martinez, S., 167, 184; S., at 448 U. at quired. See being addressing separate question punishment the whether in Mendoza- imposed, employed the Court has not the tests articulated Halper, g., Ward. e. United States See, at 447. Martinez and question Eighth in this case we deal with the Since applies, Fines Clause we need not address the Amendment’s Excessive application of those tests. 881(a)(4) (a)(7) forfeiture under
ment and whether today. be so understood should
Ill A England at Three kinds of forfeiture were established was Amendment ratified time felony upon or deodand, conviction for States: statutory Calero-Toledo, forfeiture. See treason, part, understood, was least Each S.,U. at 680-683. punishment. imposing object di- of an inanimate
“At law value common indirectly causing rectly of a the accidental death or subject King’s to the Crown as deodand. was forfeited origins to Biblical the deodand are traceable The practices, the view pre-Judeo-Christian which reflected and that reli- of death was accused the instrument expiation required. gious Holmes, was See O. the instrument The value of Law, c. Common King King, that the belief was forfeited to provide money be said for for Masses to would good the deodand soul, man’s or insure that of the dead put Blackstone, Commen- 1 W. was charitable uses. application reli- deodand to *300. When taries purposes eleemosynary gious and the deodand ceased, was revenue, the institution a source of Crown became penalty justified Id., 680-681 as a carelessness.” omitted). (footnotes part owing put “such misfortunes are it,
As Blackstone *9 properly negligence he is owner, and therefore punished Blackstone, 1 Commentar- such forfeiture.” W. ies *301. only upon fell kind of common-law forfeiture
The second felony “The convicted or of treason. those convicted of and his lands es- felon forfeited his chattels to Crown 612 all of his traitor forfeited lord; the convicted to his
cheated personal, Calero-Toledo, property, to the Crown.” real and known as forfeit- were forfeitures S., 416 at 682. Such U. These forfeit- at *381. Blackstone, 4 W. of estate. See ures punish obviously traitors, see The felons served to ures (1827), justified Palmyra, on the and were 12 Wheat. society right which ground derived from was a by violating society’s at Blackstone, see 1 W. laws, one lost *299; id., at *382. statutory “English provided forfeitures of Law for
Third, objects offending customs and reve- in violation of the used The most no- Calero-Toledo, S., 682. nue laws.” required Navigation Acts of 1660that were the table of these English shipping vessels. Viola- of most commodities illegally of the Acts resulted the forfeiture tions of the ship transported goods them. well carried as English Navigation generally Harper, Laws L. See individual that the act of an The statute was construed so knowledge the master without the seaman, undertaken ship. entire result in forfeiture of the owner, could (Ex. 1766). Eng. Rep. Torup, Mitchell v. Park. “penal.” such forfeiture statutes Yet Blackstone considered Blackstone, at *261. W. statutory forfeitures Calero-Toledo, we observed that merger “likely product of the of the confluence were prop- right that the to own deodand tradition and belief erty wrongdoer.” could be denied the punitive aspect, had a it is not Since each of these traditions Navigation jus- surprising Acts was that forfeiture under the negligence: Ships penalty “But the tified as a Owners they employ, and the are to take Care what Master Master imputable Negligence plainly Mariners; what and here Ship, report Cargo for he is to and if Master; Ship proper care, he had searched and examined the with according Duty, have found the Tea . . . and to his he would *10 might prevented Mitchell, Park., Forfeiture.” the
so have Eng. Rep., at 768. 238, 145
B England’s third forfeiture, kinds of took three Of did not become “Deodands hold the United States. country.” of Calero tradition of the common-law Toledo, S., at The Constitution forbids “except during punishment the Life for treason of as a estate § Const., III, 3, 2, cl. and attainted,” U. Art. of the Person S. Congress forfeiture of estate as First also abolished Apr. punishment 1790, 9, §24, Act ch. 30, of for felons. ‘[l]ong adoption of the Constitu “But before Stat. 117. later in the courts in the Colonies—and tion the commonlaw exercising period during the states Confederation—were [English local] jurisdiction and rem in the enforcement of ” quot 683, Calero-Toledo, 416 U. atS., forfeiture statutes.’ Hendry ing Moore, 133, Co.v. 318 S. C. J. Congress subjecting ships passed and car- laws
The First gos It does not in customs offenses forfeiture. involved Congress fact, however, that First from that follow beyond purview thought to be of the such forfeitures examination those laws Indeed, Amendment. pun- Congress suggests viewed forfeiture that the First July example, 1789, 5, 31, the Act of ch. For ishment. provided goods § Congress could be not 1 Stat. permit. except during day awith unloaded any ship “[A]nd or or vessel the master commander if permit same, or such master com- shall suffer aiding every person shall or other who mander, and housing, assisting landing, removing, or se- otherwise pay curing of four shall forfeit and the sum same, every offence; shall moreover be dis- hundred dollars for profit holding of trust under the abled from office exceeding years; States, for a term not seven duty district, it the collector shall be of all such persons public the names advertise within resides, twenty- he the State which gazette *11 all And goods, each conviction. respective after days or shall merchandise, discharged, so landed wares officer the forfeited, by any be seized may become shall the thereof amount and where value customs; dollars, vessel, tackle, the and fur- apparel four hundred to like forfeiture and seizure.” shall niture, subject the the and vessel is listed alongside Forfeiture of goods is also of some interest for It other provisions punishment. fine. See ibid. is the word used for Congress that “forfeit” (“shall the four hundred dollars for forfeit and sum of pay offence”).7 the Other forfeiture statutes follow early every 4, 13, See, 1790, Act ch. 34, e. g., Aug. same pattern. 157, 161, 1 28, Stat. C in rem for also have that recognized statutory Our cases Ware, 4 In Peisch feiture Cranch punishment. imposes removed the Court held that goods for (1808), example, revenue without custody payment from the a officer not that they of duties be forfeitable for reason unless should with or his removed the consent of the owner agent. were a Marshall for unani opinion Chief Justice delivered mous Court: court also of that for
“The removal opinion which the act with a punishes the owner of the time confirm “fine” was Dictionaries understood to include Sheridan, Dictionary “forfeiture” vice See 1 T. A versa. General (1780) English (unpaginated) mulct, Language (defining “fine” as: “A a penalty; money paid any pecuniary punishment; forfeit, exemption or (1791) Walker, liberty”); Dictionary A Pronouncing (unpagi J. Critical nated) (same); Sheridan, supra “The (defining “forfeiture” as: of for act Walker, supra mulct, fine”); (same); feiting; thing forfeited, J. Ker (1702) sey, English Dictionary (unpaginated) (defining A New “forfeit” as: “default, fine, penalty”). connivance, his consent or made with must be goods him. or trusted that of some person employed
or with fault without theft, or open robbery, If, by private invaded, while should be his his property part, law cannot be revenue, of the officer of custody the forfeiture of him with understood punish Id., at 364.8 property.” runs as punishment of forfeiture understanding
The same
as a
“innocence” of the owner
our cases rejecting
through
g., Calero-Toledo,
See, e.
defense to forfeiture.
common-law
Co. v. United
Goldsmith, Jr.-Grant
J. W.
683;
Distillery v. United
Dobbins’s
States, (1921);
Harmony
States, 2 How.
States,
The Co., a venera- 511, has fender,” Goldsmith-Grant S., 254 U. at Palmyra, Wheat., The 12 in our case law.9 ble history custody of the revenue Peisch, the goods the from In the removal of replevin of pursuant to a writ robbery, but by not theft or officer occurred Peisch Cranch, Thus, stands for at 360. court. See issued a state prop the to forfeit law is not understood principle that “the general strang mere of of the misconduct erty consignees, on account of owners or Id., have no control.” consignees could ers, owners or over whom such at 365. United See Brief for heavily on this fiction. The Government relies rely separately on to the Government We do not understand States 18. proceedings rem proceedings between technical distinction misplaced. “The would be any such reliance personam, but we note that expand the reach developed primarily to in rem forfeiture were fictions of States, Bank Miami Republic Nat. courts,” of the of- (“The as the here considered primarily thing at to the or the offence is attached fender, primarily rather (“The com- vessel which How., at 233 Harmony, thing”); offender, guilty is treated as the aggression mits attaches, without to which the forfeiture instrument or thing to or conduct of the reference the character whatsoever (“[T]he at 401 offence S., 96 U. owner”); Distillery, Dobbins’s and the real and distillery, to the is attached primarily ... without same, used connection with property personal misconduct to the personal respon- whatsoever any regard owner”). has Yet the understood of the Court sibility who allows his the notion that the owner fiction rest on has been negli- involved in an offense become property Co., the Court said that Thus, in Goldsmith-Grant gent. a certain a power “ascribing personality, had “some to the wrong,” analogy complicity guilt It then Black- quoted law of deodand.” at 510. the reason for deodand: that “‘such stone’s explanation owner, to the owing negligence misfortunes are in part such forfeiture.’” punished by and therefore he is properly Blackstone, 1 W. *301. Id., 510-511, quoting cases did the apply In these Court guilty- none when owner had fiction to justify could prevent all that reasonably expected done it did no use his Palmyra, unlawful property. *13 the criminal conviction more than argument reject his the owner to the forfeiture of prop- of was a prerequisite (“[N]o of the Wheat., at 15 conviction erty. personal in in cases to enforce a forfeiture rem offender necessary nature”). “inno- In the owners’ claim of Harmony, of this “never was the fact that they contemplated cence” limited to (1992), admiralty proceedings, in have which, particularly might personam lacked in property. See also jurisdiction over the owner States, Harmony 210, 233 in 2 How. As is discussed text, imposing proceedings historically have been understood their in rem nature. despite punishment How.,
or authorized the acts of.” 2 at 230. And complained noted that some Dobbins’s Court Distillery, responsi- on the of the owner arose “from the fact that he bility part distiller, leased the to the and suffered it to be occu- property atS., and used the lessee as a by distillery.” pied cases have reserved the The more recent expressly question the fiction could be to forfeit the property employed Co., See, of a innocent owner. e. Goldsmith-Grant g., truly Calero-Toledo, 512; S., 416 U. at 689-690 (noting of a innocent owner’s would truly that forfeiture had raise “serious constitutional If forfeiture questions”).10 have owner, been understood not to there would punish been no reason to reserve the case of a innocent owner. truly it on the that forfeiture serves Indeed, is only assumption of that that the Court’s reservation past ques- punish tion makes sense.
The second on which the Court has theory justified is that forfeiture of an “innocent” owner’s property held for the of others to owner accountable may wrongs reasoned he entrusts his it Harmony, whom property. crew, sort, of this that “the acts of the master and in cases of the owner of the whether he be bind the interest ship, he to whatever innocent or submits guilty; impliedly reason denounces as a forfeiture attached to the by law ship It How., their unlawful or wanton at 234. wrongs.” Dobbins’s reasoning Distillery: repeated the owner of unlawful acts the distiller bind “[T]he same, to the property, respect management if himself. as much as were committed the owner they by Power to that effect the law vests in him virtue if to be lease; and, trust, his he abuses his it is matter lessor; settled between him and his but the acts of viola- provisions exempt Because the forfeiture at issue here “innocent own ers,” again it we have no occasion to decide in this case whether would truly comport process due innocent owner. with forfeit the *14 penal consequences are to tion as to the they just were the acts of the same as if be considered atS., the owner.” 96 U. theory guilty-property vicarious this lia- fiction,
Like the negli- bility premised has been the idea that the owner is application gent. Calero-Toledo, noted that in we Thus, provisions or secured creditors lessors, bailors, “to forfeiture may any wrongdoing the desir- have are innocent of ... who greater inducing care in trans- them to exercise able effect of ferring property.” possession atS., of their 688.11 rejected though the “inno-
In even has sum, Court forfeiture, defense to cence” of the owner as common-law consistently recognized serves, at has that forfeiture least it part, punish Ware, 4 Cranch, the owner. See Peisch v. (“[T]he punishes forfeiture at 364 act the owner with a (“[T]he Distillery, goods”); S., Dobbins’s 96 U. at 404 acts of penal consequences as to the to the are to violation just they if the acts of be considered the same as were (“'[S]uch owner”); Co., S., 254 U. at Goldsmith-Grant part owing negligence owner, misfortunes are to the ”). properly punished by he such forfeiture’ and therefore recently, “punitive More we have noted that forfeiture serves purposes,” Calero-Toledo, and deterrent at 686, “impos[es] penalty,” an id., economic at 687. We con- generally statutory clude, therefore, that forfeiture particular historically rem forfeiture in have been under- punishment.12 part, stood, at least in as context, permitted punishment the criminal we have in the absence “ wrongdoing, long ‘powerless’ of conscious so as the was not defendant prevent Park, or correct the violation.” United States v. (1975) (corporate strictly Food, Drug, officer liable under the and Cos Act). inconsistent, therefore, nothing viewing metic There punishment though even the forfeiture is occasioned the acts of a
person other than the owner. Scalia, 625-627, post, doubts that Justice see and Justice Kennedy, post, express regard see with to the historical under standing punishment appear forfeiture as from to stem a misunder-
IV whether forfeitures under next to consider We turn (a)(7) 881(a)(4) §§ properly pun are considered and U. S. C. provisions today. nothing in their find these or ishment We understanding legislative history the historical to contradict punishment. forfeiture Unlike traditional of forfeiture 881(a)(4) (a)(7) §§ expressly provide “inno an statutes, (“[N]o 881(a)(4)(C) § conveyance cent owner” defense. paragraph the of an this to extent shall be forfeited under any by estab of act or omission owner, interest of an reason by or that been committed omitted lished owner have knowledge, the or willful blindness of consent, without (“[N]o 881(a)(7) § owner”); property shall forfeited under paragraph, an owner, an interest of to the extent of by that owner to act or omission established reason of knowledge or or have committed omitted without been owner”); see also United v. Parcel of that States consent (1993)(plurality 111, 122-123 Rumson, J., Land, N. 507 U. S. (noting opinion) forfeiture stat from traditional difference utes). provisions exemptions serve to focus These way culpability look in a that makes them of the owner punishment, not In United States v. United less. more like (1971), Currency, we reasoned & States Coin Secretary § provides which S. C. 19 U. Treasury those who do not return the Congress’ intent “to law, demonstrated intend to violate the significantly only upon impose penalty in who those are a enterprise.” S., at a 721-722. volved in criminal 881(a)(4) defenses in of innocent-owner inclusion (a)(7) punish only congressional intent to reveals similar trafficking. drug those involved Halper, States Under standing question. relevant (1989), serves question S. punish, possibility one not exclude the that forfeiture serves need other that conclusion. purposes reach Congress di- has chosen to tie forfeiture Furthermore, drug rectly Thus, under offenses. to the commission §881(a)(4), conveyance if it is used or intended is forfeitable transportation of controlled sub- facilitate the for use to equipment used to manu- materials, their raw stances, 881(a)(7), § Under real facture or distribute them. to facilitate the if it is used or intended use
is forfeitable punishable by drug-related more than crime commission of a *16 supra. year’s imprisonment. 1, one See n. §881 legislative history punitive confirms the na-
The (a)(7) provisions. it subsection ture of these When added §881 Congress recognized “that the traditional 1984, imprisonment inadequate fine and are criminal sanctions of enormously profitable punish trade in dan- to deter or (1983).13 gerous drugs.” Rep. p. 191 It 98-225, S. No. powerful characterized the forfeiture of real as “a Id., Ex- at 195. also Joint House-Senate deterrent.” planation Amendment to Titles II III of the of Senate Cong. Psychotropic 124 1978, Substances Act of Rec. 34671 (1978) statutes”). (noting penal “the nature of forfeiture 881(a)(4) (a)(7) argues
The Government are not punitive but, rather, should be considered remedial in two respects. they drug First, remove the “instruments” of the “thereby protecting community trade from the threat of drug dealing.” continued Brief for United States 32. Sec- compensate ond, the forfeited assets serve the Govern- expense activity ment for the of law enforcement and for its expenditure problems blight, drug on societal such as urban resulting drug addiction, and other health concerns from the Id., 25, trade.
13 Although legislative the United States omits reference to this his tory case, present quoted passage in its brief in the it ap same with Rumson, J., Land, United States v. Parcel N. proval brief in its (1993). States, 1992, U. S. 111 See Brief for United O. 91-781, T. No. pp. 41-42. Con- scrutiny. withstands view, argument neither
In our forfeiture of contraband that the have we recognized cededly, it removes as remedial because be characterized itself may States See from society. items or illegal dangerous Firearms, (1984). Assortment 465 U. S. One has rejected government’s Court, however, previously The used to conveyances reasoning to extend attempt Plymouth Sedan See One illegal liquor. transport Pennsylvania, it In that case in possess- criminal remotely even “There nothing noted: Ibid. same, The without question, an automobile.” ing and the Government’s here, involved true of the properties as “instruments” these properties to characterize attempt as Pennsylva- same fate meet trade must of the drug sedan 1958 Plymouth effort nia’s characterize “contraband.” the remedial about argument second Government’s We pre- more persuasive. is no of this forfeiture
nature involved in cus- goods have upheld viously dam- of liquidated form as “a reasonable toms violations *17 States, Emerald Cut Stones One Lot ages.” in the variations the dramatic But 232, U. S. under forfeitable real and of conveyances value with 881(a)(4) (a)(7) similar argument undercut §§ and very made this point The Court to those provisions. respect that a Ward: . . . penalty [is] of property The “forfeiture sustained by to any damages correlation no absolutely ha[s] at 254. S., 448 U. the law.” enforcing the cost of or to society 881(a)(4) (a)(7) and §§ that assuming even Fundamentally, argument Government’s remedial purpose, serve some solely be said that cannot fairly sanction civil “[A] must fail. can explained but rather a remedial to serve purpose, is deterrent retributive or purposes, either as also serving the term.” to understand we have come as punishment, added). Halper, In of the light S., at 448 (emphasis 490 U. as punishment, of forfeiture understanding historical 881(a)(4) (a)(7) on the culpability §§ and focus of clear those pro- understood that Congress and the evidence owner, conclude we cannot deter and to as punish, visions serving (a)(7) 881(a)(4) a serves solely §§ under that forfeiture conclude that forfeiture therefore We remedial purpose.14 sovereign a constitutes “payment these provisions under Browning-Ferris, S., offense,” for some as punishment the limitations of the Eighth 265, and, such, subject as at Excessive Fines Clause. Amendment’s
V test for deter- establish a multifactor asks that we Austin “excessive.” is constitutionally whether a forfeiture mining that invitation. 46-48. We decline Brief for Petitioner “the government of Appeals opined Court Although com- in relation to the offense too is exacting high penalty consider what at it had no occasion to 2d, 964 F. mitted,” it it such a decision because thought should inform factors Prudence dic- engaging inquiry. foreclosed from was consider that question the lower courts to that we allow tates applied in the indi Halper, whether “the sanction as we focused on S.,U. at 448. In this goals punishment.” case serves the vidual 881(a)(4) (a)(7) however, §§ as a whole. it makes sense to focus on case, ordinary Halper small, fixed-penalty provision, which “in the involved no more than make the Government whole.” . . can be said to do case . Id., conveyances and real forfeitable 449. The value of the 881(a)(4) hand, dramatically (a)(7), vary on the other can so under and the any relationship the Government’s actual costs between Ward, merely coincidental. See amount of the sanction Furthermore, seen, historically have we have forfeiture statutes serving simply goals but also those of understood as not remedial been practical Finally, appears it to make little punishment and deterrence. *18 applies to all forfeitures the Excessive Fines Clause difference whether 881(a)(4) (a)(7) that cannot be characterized under and those prohibits only imposition of “exces purely The Clause as remedial. fines, purely purposes that serves remedial cannot be sive” and a fine any considered “excessive” event.
in the first instance. See Yee v. Escondido, 519, U. S. (1992).15 judgment Appeals of the reversed, Court is and proceedings the case is remanded to that court for further opinion. consistent with this
It is so ordered. Scalia, Justice and concurring concurring judgment. recently Eighth
We stated that, at time the Amend- drafted, ment was the term “fine” was “understood to mean payment sovereign punishment to a some for offense.” Browning-Ferris Disposal, Vt., Industries Inc. Kelco Inc., S. It me that seems to opinion needlessly Court’s obscures clear statement, attempts sparse subject derive from our case law the questionable proposition of in rem forfeiture the that the property pursuant owner of taken to such forfeiture is al- ways blameworthy. separately explain why I I write con- point sider this a fine, forfeiture and to out that the exees- inquiry statutory siveness in rem forfeitures different inquiry. from the usual excessiveness
I property may Whether sort of forfeiture of be covered question. Amendment not a difficult “For- many appeared feiture” “fine” each as one of definitions 18th-century other various ante, dictionaries. See - “Payment,” Browning n. 7. the word we used in suggests Justice Scalia that the sole an measure of in rem forfeit ure’s relationship excessiveness is the between the forfeited post, the offense. See We do not possibility 627-628. rule out the may between relevant, connection and the offense but our today way decision in no limits Court of from Appeals considering other determining factors Austin’s property was excessive.
624 certainly as- in-kind synonym includes fine, a for Ferris as Dictionary 1797 International New Webster’s sessments. 1950) paid; (2d “[t]hat (defining “payment” which is ed. obligation”). discharge More- thing given debt or an to fines while limit cash to Amendment over, for the make little permitting would in-kind assessments limitless altering only abuses Chamber of the Star sense, the form English Rights, provision from Bill of led to the directly see derives, Fines Excessive Clause which our supra, Browning-Ferris, v. Mich- 266-267. Harmelin at Cf. (1991) (opinion igan, 978-979, 957, n. 501 U. S. SCALIA, J.). ante, 558, we have States, v. United Alexander personam is an today criminal held that an in Eighth Amendment “fine.” Eighth Amendment, fine under the constitute a
In order to “punishment,” and it must constitute however, the forfeiture statutory question forfeit- in rem whether is a much closer opposed personam re- meet this forfeitures, ures, as monetary quirement. assessments, are The latter property punish conduct, criminal owner’s kind, or in rights property based confiscations of while the former are improper property, regardless of whether the use of Statutory in rem forfeitures the law. owner has violated long history. generally v. Pearson have Calero-Toledo prop- Leasing The Co., 663, 680-686 Yacht S. erty they apply is the forfeiture contraband, not see which Congress, passed by ante, 613-614, nor is First it Act illegal pur- necessarily property that can used for be poses. theory said to be that the The of in rem forfeiture is g., e. See, has committed an offense. lawful (1827) (forfeiture Palmyra, 14-15 of vessel for 1, Wheat. piracy); Harmony States, 210, v. United 233-234 How. (1844) (forfeiture cargo, piracy); Dob- vessel, but not Distillery States, bins’s 400-403 U. S. (1878) (forfeiture distillery and real for evasion laws); Goldsmith, of revenue J. Co. v. United W. Jr.-Grant (forfeiture (1921) goods con- States, 510-511 U. S. taxes). cealed avoid may theory expressed, me that it seems to
However the *20 property taking in whole considered, must be lawful of Halper, part, 435, see States v. or compensatory, (1989), purpose make punitive.* is not Its prop by injury unlawful use of the caused whole for someone being imposed, erty. one Punishment is See ibid. property object itself, or quaintly be the its considers property’s regards object realistically to be the its more by supported obser is Blackstone’s owner. This conclusion religious deodand, a whose that confiscation of vation even any punitive but origins supposedly motive did not reflect Mag. only expiation, 188, Law of Deodands, see Law (1845), by explained part to the reference to be came offending property. Blackstone, as to the 1W. owner well as supra, Deodands, at 190. accord, of *301; Law Commentaries statutory remin cases have described Our merger “likely product the deodand of of confluence right property to own could belief that tradition and the supra, wrongdoer.” Calero-Toledo, at 682. be denied the apparently actual however, that believes, The Court property culpability can that owner establish the affected punitive, provision sets to establish is out a forfeiture (in III) culpability rem of in Part such exists case that my more the case is far view, however, law forfeitures. acknowledges. ambiguous never We have than the Court negligence, requires other or held that the Constitution support degree culpability, ante, See such forfeitures. ante, 618-619, contention, n. I *Thus, at contrary to the Court’s however, culpability of agree, I do agree point. with it on this not necessary punitiveness, puni- property is or owner to establish in some cases showing “in that at part” tiveness is established least statutory to say, are That is property culpable. the affected owners always is not a fine. “partly punitive,” at least else it forfeiture must ante, at n. 14. (re- supra, Goldsmith-Grant, at 512 10; 616-617, and n. (same). supra, 689-690 serving question); Calero-Toledo, statutory 19th-century explains in rem prominent treatise A solely by the fiction that reference forfeitures strictly separating that re- guilty, them from forfeitures is Bishop, 1 J. quire personal the owner. See offense of (7th 825, 833 §§816, 824, Law on Criminal Commentaries 1882). culpability of the correct that If the ed. Court (except per- difference there is no essential, then owner proof) in rem haps the traditional between the burden personam forfeiture. Well- the traditional in forfeiture and swept distinctions should not be common-law established degree away by if some Moreover, of dicta. reliance on bits culpability personal owner on the always ante, at forfeitures, 614-618, see exists for in rem *21 kept why has reserv- this Court then it is hard to understand academic) (therefore personal question ing cul- whether the constitutionally required, pability ante, 617, as the see is today, again ante, see n. 10. does Court question engaging in the without I would have reserved culpability. punish misleading Even discussion if necessary personal culpability for a forfeiture to ment of general in rem forfeitures in do not fine; be a and even if punish personal culpability; rem forfeiture in this case the in IV, statute, discusses in Part is a fine. As the Court requires forfeiture, traditional in rem that contrast to the degree not be innocent—that he have some of cul owner “guilty” pability property. also for the United States v. (1993) J., Land, N. 121-123 Parcel of Rumson, (contrasting drug (plurality opinion) forfeiture statute with forfeitures). statutory prop Here, in rem traditional erty completely and the owner must not be must “offend” compensat without Nor is there consideration of fault. ing property for since the value of the is irrelevant to loss, enough satisfy it is That to forfeited. Browning-Ferris and to make the entire discussion standard, 881(a) § Statutory are under forfeitures III
in Part dictum. (in kind) sovereign punishment certainly payment to an offense.
II the excessive- as a fine raises works That this forfeiture agree a re- I that remands. the Court issue, ness on which pointing out that think it worth but order, mand is analysis from be different must remand the excessiveness perso- monetary perhaps, to in applicable and, fines that monetary fine, case of a In the nam forfeitures. Rights, English intended origins Bill of
Amendment’s King’s op- against penalties assessed limit the abusive demon- Browning-Ferris, 266-267, ponents, atS.,U. see in relation the fine is value of that the touchstone strate States, we indi- Alexander And in v. United the offense. personam forfeiture. is true for the same cated Ante, at 558. petitioner been has the offense of which
Here, however, § re- Section relevant to the forfeiture. is not convicted probable cause quires show that the Government purpose. prohibited subject property was used for the show, owner then shifts to The burden made with- was preponderance evidence, that the use “knowledge, 21 S. C. blindness,” U. consent, or willful out his 881(a)(7), § 881(a)(4)(C), § was or that see also §1615). 881(d) § (incorporating S. C. used, not so see *22 statutory monetary have tra- in rem forfeitures fines, Unlike by determining appropriate ditionally the fixed, not been penalty but offense, in to the committed value of the relation by determining property “tainted” unlaw- what has been property is irrelevant. ful to which issue the value of the use, example, drug sales, for used to measure out unlawful Scales purest gold or the basest are whether made of the confiscable beyond goes the traditional But in metal. an rem applies permits if it limits that the Amendment property properly regarded instrumen- that cannot as an example, building, tality in which an for of the offense—the drug happens a confiscation to occur. sale Such isolated question not is how much fine. The would be an excessive property the confis- worth, is but whether the confiscated relationship enough to the a offense. has close cated par- statutory inquiry This common-law for forfeitures has juries deodands, were careful to Even in the case allels. only Thus, not more. the instrument of death and confiscate by moving cart, a the cart and its horses if a man was killed if when fell from a wheel but the man died he deodands, were only as cart, deodand, the wheel was treated of an immobile regarded as the cause of the wheel could be death. since 1 W. *419-*422; Blackstone, Pleas of the Crown Hale, M. Mag., Deodands, Law 34 Law *301-*302; Commentaries instrumentality inquiry suggest a similar Our cases scope statutory considering permissible forfeit- the when Harmony, 513; Goldsmith-Grant, Cf. ure. cargo piracy (ship forfeited, for but is at 235 used How., not). inquiry for forfeiture under The relevant an excessive § relationship the to the offense: Was 881 is the enough property, under traditional it close render “guilty” standards, and hence forfeitable? opinion part, join in
I in and concur Court’s judgment. Kennedy,
Justice with whom Chief Justice and Thomas join, part concurring Justice concurring the judgment. agreement
I I am in substantial with Part of Justice opinion concurring concurring Scalia’s judgment. I Scalia’s belief that Part III of share Justice unnecessary quite opinion Court’s decision of support argument, case, fails seems Court's rather doubtful well. recounting history, if law’s we risk anachronism we employ legal
attribute to an earlier time an intent to con- *23 of in I see that something had evolved. that not cepts yet for in to discover here, eagerness its opinion Court’s rationale forfeitures, of it recites consistent theory unified nar the cases nor other neither of personal punishment For of the rea law many of the common suggest. ratives I am not convinced sons explained by Scalia, Justice rem forfeitures of owner’s blame were on account all rem may impositions conduct. Some worthy that was itself to remove property have either designed been g., Harmony States, 2 How. v. United see, e. causing injury, an asset over (1844), or to the court 210, 233 jurisdiction give whole, injured parties in order to make that it could control Republic States, Bank Miami Nat. S. see 80, 87 constitutional have to confront the
At some we point, may the owner has when whether forfeiture is permitted question intentional any sort, negligent. no wrong committed the his- Though a serious That for me would raise question. of that not determinative might of forfeiture laws tory the outcome. an it would have issue, important bearing occasion necessary that or some other I would reserve for here. Unlike Court undertakes inquiry Justice ante, question I also reserve see would Scalia, in rem forfeitures always an amount intended the owner forfeited property. punishment observations, I concur concur With these the judgment.