OCTOBER TERM, 1997
Syllabus
UNITED STATES
v. BAJAKAJIAN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 96-1487. Argued November 4, 1997-Decided June 22,1998
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)(I)(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)(I), 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)(I) 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
322
Syllabus
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
323
proportionality, the Court adopts the gross disproportionality
standard articulated in,
e. g., id., at 288. pp.
334-337.
(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.
324
opinion, in which REHNQUIST, C. J., and O'CONNOR and SCALIA,
JJ., joined,
post, p. 344.
Irving L. Gornstein argued the cause for the United States. With
him on the briefs were Acting Solicitor General Dellinger, Acting
Solicitor General Waxman, Acting Assistant Attorney General Keeney,
Deputy Solicitor General Dreeben, and Kathleen A. Felton.
James E. Blatt argued the cause and filed a brief for
respondent. *
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. U sing 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
*
Ronald D. Maines filed a brief for the Clarendon
Foundation as
amicus curiae urging affirmance.
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. § 100l. 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
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."
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
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.
I d., 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., Arndt. 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,
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 kindare 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. id.,
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").
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)(I). 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)(I)'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.
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 Pal-
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).
330
myra, 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, or
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 Laws of England
290-292 (1765); O. Holmes, The Common Law 10-13, 23-27 (M. Howe ed.
1963).
331
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 Govern-
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).
332
ment 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
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).
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
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
Austin v.
United States, 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.
334
the excessiveness of a punitive forfeiture involves solely a
proportionality determination. See
infra this page and
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 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.
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
334, 337 (CA9 1996). 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 "[sJomething by which an end is achieved; a
means, medium, agency").
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)
("[bJeyond 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 Free-man 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
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
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 exces-
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 ClauseY 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, re-
siveness inquiry, of course, must be accepted unless clearly
erroneous. See
Anderson v.
Bessemer City, 470 U. S. 564, 574-575
(1985). But the question 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
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
338
spondent's violation 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
"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)(I)
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, 346351, 354, 356, is respondent a
"smuggl[er]." 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.
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
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.
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 330-331. They therefore indicate
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.
341
nothing about the proportionality of the punitive forfeiture at
issue here. See
supra, at 330-332.16
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 de-
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).
342
fendant's 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." Ibid.
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
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,
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., at 237 (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,
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");
post, at 353 (§
982(a)(I) imposes a
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.
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
"punishment"), is clearly punitive-"would have to [be treated]
as nonpunitive,"
post, at 346.
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-Iong 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.4d
0 (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 reexport 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 dutyfree 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. &
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
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 (1993)
(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
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
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, supra, 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
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 336 (quoting
Solem, supra, 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 of what is
prudent over the congressional judg-
351
ment 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.
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
wellrehearsed 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 proved. 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.
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 lawabiding 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 Internal Revenue Service 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
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 Hearing on Money Laundering
and the Drug Trade before the Subcommittee on Crime of the House
Judiciary Committee, 105th Cong., 1st Sess., 62 (1997) (testimony
of M. Zeldin); Andelman, The Drug Money Maze, 73 Foreign Affairs
108 (July/Aug. 1994). Since many couriers evade detection,
moreover, the average forfeiture per dollar smuggled could amount,
courtesy of to day'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
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 Industries 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, to day'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, 340-341, 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
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.
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