It took the Supreme Court 207 years to get around to invoking (on June 22) the 8th Amendment’s ban on ”excessive fines” to strike down a criminal forfeiture. Let’s hope it doesn’t take another 207 years for Congress to follow the Court’s example and reform its often-oppressive civil forfeiture statutes.
The Justice Department’s treatment of Hosep Krikor Bajakajian was far from the worst of the forfeiture horror stories that have emerged during the years since our government, in headlong pursuit of its largely futile war on drugs, started carving up our constitutional liberties.
Houses have been forfeited because marijuana plants were found growing nearby–not for sale, but for home consumption. A woman’s car was taken (with the Supreme Court’s approval) because her faithless husband was found in it being serviced orally by a prostitute. Florida police, stopping hundreds of innocent motorists they thought looked like drug couriers, routinely seized from them any cash in excess of $ 100. Countless boats have been taken from law-abiding owners because traces of drugs were left in them by relatives, guests, or others.
Such forfeitures have poured billions of dollars in cash and property into the coffers of federal, state and local law enforcement agencies, giving them strong incentives to seize any property they can get their hands on, whether the owner did something seriously wrong or not. Forfeitures have given especially shameless officials a chance to tool around in fancy forfeited cars and speedboats.
The facts of U.S. v. Bajakajian show why law enforcement officials love their unchecked forfeiture powers, and why these powers threaten basic liberties.
Bajakajian, an immigrant from Syria, was caught four years ago at Los Angeles International Airport, trying to take $357,144 (which was legal) on a flight to Cyprus with his wife and two daughters without reporting (which was illegal) that he had more than $ 10,000 with him. The government could prove no underlying crime but sought to keep all the money anyway.
The Supreme Court ruled by 5-4 that such a penalty was ”grossly disproportional to the gravity of his offense”– failing to tell Customs officials that he was transporting that much cash–and thus amounted to the kind of ”excessive fine” that is barred by the 8th Amendment.
The majority was a coalition never before assembled in a 5-4 case: the four more-liberal Justices plus conservative Clarence Thomas. His opinion for the Court displays a libertarian bent that sometimes separates Justice Thomas from such law-and- order conservatives as Chief Justice William Rehnquist.
Discerning readers have by now detected something fishy, of course–just as the cash-sniffing dogs used by the Customs Service smelled all those greenbacks hidden in Bajakajian’s bags. Why would anyone but a money launderer, tax evader, or some other crafty criminal try to sneak $ 357,144 out of the country? Doesn’t this alone suggest that serious underlying criminal activity must have been afoot?
The answer: Sure, it suggests that. That’s why Congress authorized forfeitures of large amounts of undeclared cash in the 1992 law used against Bajakajian. That’s also why Justice Anthony Kennedy asserted, in the dissent, that ”money launderers will rejoice” at the ruling, and that ”the problems of individual proof” warranted a congressional decision ”to enact a blanket punishment”: forfeiture of all unreported cash, whether or not it can be traced to an underlying crime.
Kennedy also stressed that ”suspicious circumstances” in this case–including lies told to officials by Bajakajian and by friends, leading to a false-statement charge that was dropped–pointed to ”some form of crime.”
But sometimes suspicious circumstances are no more than suspicious, and point to no underlying crime. That’s why our best traditions of constitutional liberty require prosecutors to prove a person guilty of a serious crime before a commensurately severe punishment can be imposed.
And that’s why Justice Thomas declared flatly for the Court: ”The money was the proceeds of legal activity and was to be used to repay a lawful debt. Whatever his other vices, (Bajakajian) does not fit into the class of persons for whom the statute was designed: He is not a money launderer, a drug trafficker or a tax evader.”
These assertions were based on the District Court’s findings that Bajakajian had earned the money legally through his gas station business; that he was taking it abroad legally to repay loans from relatives; and that he was hiding it because he came from a minority group (Armenian) in a country (Syria) in which cops tend to keep any cash they can get their hands on.
The forfeiture statutes make sense when the property involved is contraband (cocaine, for example) or stolen money or goods, the knowing possession of which is illegal. It also makes some sense to confiscate, say, a boat in which two tons of marijuana are found, or a pile of cash proven to be the product of money laundering.
The abuses come in cases like Bajakajian’s, in which the government seeks forfeitures without evidence of any very serious crime, on the amorphous and abuse-prone rationale that the property was an ”instrumentality” of crime. This rationale is rooted in the doctrine that things can be guilty of crimes. Dating back to the era of pirate ships and privateers and ultimately back to the Bible, it is a mischievous anachronism today.
What it means, in the words of a June 23 Wall Street Journal op-ed article by Roger Pilon of Washington’s libertarian Cato Institute, is that ”if you take back a second mortgage when you sell your house, and the buyer uses the house for prostitution, you lose your mortgage when the government seizes the home, for the house ‘facilitated’ the crime. It means that if someone hires you and your charter jet to transport drug money, unbeknownst to you, you lose your jet, since it was an ‘instrument’ of crime.” There have been enough real cases like this to make abusive forfeitures a national scandal, one for which the courts have provided few remedies until now.
The Bajakajian decision may signal emergence of a healthy judicial skepticism toward the entire ”instrumentalities” doctrine. The Justice Department had argued that the $ 357,144 was the instrumentality of Bajakajian’s reporting violation, because there would have been no crime had there been no cash. Justice Thomas responded that an excessive fine is excessive whether or not the cash to be forfeited can be called an ”instrumentality,” and that in any event this cash was not an instrumentality because it did not directly facilitate the commission of his crime.
Justice Kennedy implied that the Court’s ruling that $357,144 was an ”excessive” forfeiture was the kind of subjective judgment that courts should leave to legislatures. Justice Thomas responded, convincingly, that while courts owe legislatures some deference in setting penalties, a judicial refusal to set some ”inherently imprecise” outer limits would amount to a decision not to enforce the explicit ban on ”excessive fines” at all.
Kennedy also warned that the majority’s decision ”portends serious disruption of a vast range of statutory fines.” Let’s hope it does: The forfeiture laws are in need of disruption, so that severe punishments will be reserved for serious criminals.
Another Kennedy warning was that this decision could backfire if Congress decides to circumvent review under the excessive fines clause–which applies only to criminal penalties–by passing even more-draconian civil forfeiture laws. But Congress can often circumvent Supreme Court rulings if it is determined to do so. Judicial review works best when it seeks not to tie the hands of Congress, but to appeal to its best instincts.
In this regard, here’s hoping the Court’s decision helps inspire the Republican leadership to allow a vote on House Judiciary Committee chairman Henry J. Hyde’s sensible proposals to reform the civil forfeiture statutes. The Illinois lawmaker would, among other things, require the government to prove that property to be forfeited was involved in criminal activity, and he would help innocent owners keep property that was used illegally without their consent.
The Hyde bill’s champions in the House constitute a coalition almost as unusual as the Bajakajian majority: conservative Republican Bob Barr of Georgia and liberal Democrats John Conyers Jr. of Michigan and Barney Frank of Massachusetts.
Looking beyond forfeiture reform, might the libertarian zeal that moves some Republicans to oppose disproportionate seizures of money and property also move them to rethink the grotesquely disproportionate mandatory minimum prison terms that they have imposed–with Clinton Administration support–on small- time couriers and other bit players in drug deals? Probably not. But once common sense starts breaking out, it could become contagious.