I. The Manner in Which the Forfeiture Power is Being Used In This Case is Punitive Instead of Remedial, and Therefore It Violates Due Process To Prosecute this Forfeiture Under the Civil Forfeiture Statute

A. The Kingsley Case

As claimants here have previously noted, the facts in this case are strikingly similar to those in Application of Kingsley, 802 F.2d 571, 572-77 (1st Cir. 1986), affirming 614 F. Supp. 219 (D. Mass. 1985). In both cases, the government, without prior notice or hearing, seized virtually every possession owned by the claimant(s), including their place of residence and all its contents, including their clothing, cooking utensils, food, toiletries and furnishings (and, in this case, the family pet), and, without any due process, ousted them from possession for a substantial period of time. Although, in both cases the claimants were eventually allowed to live in the premises pending trial, the similarity between the cases does not end there.

In the Kingsley case, after the claimant was allowed to return to possession of his property pending trial, he challenged the constitutionality of Section 881 itself, and of using that civil forfeiture statute in the punitive manner it which it was used in his case. The matter was referred to U.S. Magistrate Ponsor, of the U.S. District Court for the District of Massachusetts. In a 49-page Report and Recommendation Regarding Claimant's Motion to Dismiss, issued November 26, 1986, (hereinafter cited as "Report"), Magistrate Ponsor held that 21 U.S.C. Sec. 881 was unconstitutional on its face and that its constitutional infirmities could not be cured by interpretation. Report, at 36-38. The magistrate went further and held that, even if 881 was facially constitutional, its application, under the facts of Kingsley's case, was punitive, and therefore it was not a permissible mechanism for forfeiting the property. Report, at p. 38 et seq.

The Gibsons agree with Magistrate Ponsor's analysis, and hereby adopt as their arguments and incorporate by reference all of the issues raised, and the holdings reached, in the Report (attached). Claimants see no need to add anything more to the discussion by Magistrate Ponsor of the facial unconstitutionality of Section 881. However, since the facts are not totally identical⁽¹⁾, they here argue separately that the statute is unconstitutional as applied to the facts of their case.

In his Report, Magistrate Ponsor points out that the difference between in rem civil forfeiture and in personam criminal forfeiture is not merely a matter of semantics. In rem forfeitures give property owners only a few of the procedural safeguards available in in personam criminal forfeiture cases. Criminal forfeiture affords property owners all the protections of the criminal laws, including, most notably, a grand jury's determination of probable cause (because the forfeiture of the property must be included as a count in the indictment), and proof beyond a reasonable doubt of all the elements supporting a forfeiture. On the other hand, civil forfeiture procedure under Section 881, as we now know it, has virtually no procedural safeguards. The burden of proof has even been shifted to the property owner to prove his property is not subject to forfeiture.

This is an aberration of the law. Even the most petty civil case -- a small claims suit -- has more procedural safeguards to assure fairness and due process than Section 881. This aberration of due process has repeatedly been justified by the historic origins of in rem forfeitures, and the toleration of that process in this country despite what appears to be contrary constitutional guarantees. However, a closer look at this history demonstrates that historically there have always been two types of forfeiture -- civil and criminal -- each having their separate function, purpose and procedures. Historically there was no blurring of the distinction between them. In this country, forfeiture of estate and corruption of blood was abolished by Act of April 30, 1790, 1 Stat. 112, 117 ch. 9 Sec. 24. The Act expired on November 1, 1986. Until RICO was enacted in 1971, there was virtually no criminal forfeiture in this country. Note, "Criminal RICO Forfeitures and the Eighth Amendment: 'Rough' Justice is Not Enough," 14 Hastings Const. L. Q. 451, 458 and n. 51, 54. Now, forfeiture having come into vogue, prosecutors are attempting to use the two types of forfeiture interchangeably, at their whim, depending on which best eases their burden of proof.

Claimants would submit that neither the archaic origins of forfeiture nor the United States Constitution can tolerate the blurring of the distinction between civil and criminal forfeitures when they cause such serious threats to common notions of decency and fairness in the courts, and such serious intrusions into fundamental property rights.

As Magistrate Ponsor pointed out in his Report:

In a series of cases beginning in the late 19th century the Supreme Court has not hesitated to cut through the in rem label where it was obvious that the procedure was in fact in personam. In Boyd v. United States, 116 U.S. 616 (1886) the Court held that a claimant had a right to exercise the privilege against self- incrimination in an in rem proceeding when the pertinent statute required a showing of criminal culpability prior to forfeiture. The Court stated:
 
Proceedings instituted for the purpose of declaring the forfeiture of a man's property by reasons of offenses committed by him, though they may be civil in form, are in their nature criminal.
 
Id. at 634. See also Coffey v. United States, 116 U.S. 436, 443 (1886) (acquittal in a criminal prosecution bars subsequent in rem action) and Stone v. United States, 167 U.S. 178, 188 (1897) (procedural rights afforded criminal defendants apply when titularly in rem forfeiture proceedings necessitates a showing of "criminal intent" and commission of "prohibited acts.")

More recently, in United States v. United States Coin & Currency, 401 U.S. 715 (1971), the Court underlined its willingness to cut through the civil label to require enforcement of protections afforded in criminal proceedings. In this case, the Government sought the forfeiture of $8,674.00 found in the claimant's possession at the time of his arrest as a bookmaker. Justice Harlan stated:

From the relevant constitutional standpoint there is no difference between a man who "forfeits" $8,674.00 because he has used the money in illegal gambling acitivities and a man who pays a "criminal fine of $8,674.00 as a result of the same course of conduct. In both instances, the money liability is predicated upon a finding of the owner's wrongful conduct; in both cases, the Fifth Amendment applies with equal force. Id., at 718 (citation omitted.)

In this murky area, two propositions seem to be clear. First, the distinction between in personam and in rem forfeiture is significant. Different statutes apply to the different situations, containing markedly different procedural safeguards. Different ramifications for property owners adhere. Second, the Calero-Toledo and U.S. Coin & Currency cases make it clear that the Supreme Court will look behind the label of the proceeding to discern whether in fact the proceeding is in rem or in personam. The in rem and in personam forfeiture procedures in Sec. 881 and Sec. 853 are not -- as the Government suggests -- simply two arrows in the prosecution's quiver to be used at its discretion interchangeably. Such a blurring of the distinction between civil in rem and criminal in personam processes is improper and a matter of "grave concern." United States v. $39,000 in Canadian Currency, ... 801 F.2d [12__], 1219 n.7.

Report of Magistrate Ponsor, at 39. Applying this analysis to the facts of Kingsley's case, the court found that the proceeding was in personam and therefore the use of Section 881 procedures violated Kingsley's due process rights.

Claimants would submit that Magistrate Ponsor's Report is an accurate dissertation on this complex and difficult area of the law. As we will show, a long line of United States Supreme Court decisions, including recent cases, support that Magistrate Ponsor's reasoning.

2. United States Supreme Court pronouncements in this area

The amount of Due Process which is required before a penalty can constitutionally be imposed depends on whether the penalty is "civil" or "criminal." The titles that happen to be associated with the penalty are not dispositive. Whether a forfeiture statute is, in essence, "criminal" or "civil" turns on whether it is "punitive" or "remedial." United States v. Ward, 448 U.S. 242, 248-49 (1980).

In making this determination, we first look to the intent of the legislature in enacting the statute:

[T]he question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction. . . . Our inquiry in this regard has traditionally proceeded on two levels. First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. . . . Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.

In determining whether the sanctions are so punitive as to override a legislative intent to enact a civil penalty, the Court in Ward applied the seven factors set out in Kennedy v. Mendoza- Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554 (1963). In that case, the Supreme Court considered whether a statute forfeiting the citizenship of any citizen who remained outside the United States during a war in order to evade military service was "punitive", requiring criminal constitutional safeguards, or "remedial", allowing looser, civil procedure. The Court set out the factors for determining whether a titularly "civil" penalty was sufficiently "punitive" to require all the constitutional safeguards of criminal procedure. They are:

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment -- retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions. Absent conclusive evidence of congressional intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face.

These will each be considered seriatum.

"Whether the sanction involves an affirmative disability or restraint,. . .

It is not entirely clear what this factor means, but it seems turn on whether the penalty takes away from the person penalized a right or entitlement which he already has -- that is, something beyond merely restraining the person from obtaining something he does not currently enjoy or possess. The affirmative disability in Mendoza-Martinez was forfeiture of citizenship. Here the penalty is forfeiture of a homeowner's one and only residence, and one which was bought and paid for by legitimate earnings from employment. Certainly this would be an affirmative disability.

". . . whether it has historically been regarded as punishment, . . ."

The forfeiture in this case is akin to a forfeiture of estate, a species of criminal forfeiture which was banned by the early Colonists, and which, unquestionably, was regarded as punishment.

Under English common law, the convicted felon forfeited his chattels to the Crown and his lands escheated to his lord; the convicted traitor forfeited all his property, real and personal, to the Crown. In fact, the term "felony" was defined under English law as "an offense which occasions a total forfeiture of either lands or goods or both." In addition, the convicted traitor or felon's "blood was corrupted" so that nothing could pass by inheritance through his line.

". . . whether it comes into play only on a finding of scienter, . . ."

This factor strongly militates in favor of classifying the forfeiture in this case as "criminal", even though many forfeiture statutes could not be so classified. Under Section 881(a)(6), the forfeiture of real estate requires a finding of scienter on the part of the owner whose interest is being forfeited. Section 881(a)(6) provides for the forfeiture of:

All real property, including any right, title, and interest in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.

Thus section 881 has two elements which require a showing of criminal intent -- an owner's interest in real estate cannot be forfeited when the owner does not know of or consent to the alleged violation, or when the offense committed is only a misdemeanor. Under the applicable federal statutes, what distinguishes between the misdemeanor of simple possession and the felony of possession with intent to distribute is an additional element of specific criminal intent. In either case there must be a finding of scienter. This takes Section 881(a)(6) out of the traditional in rem mold, and makes it more like the statute in United States v. U.S. Coin & Currency, supra, which the Supreme Court found, "manifested a clear intention 'to impose a penalty only upon those who [were] significantly involved in a criminal enterprise." Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 688 (1973), quoting United States v. U.S. Coin & Currency, supra, 401 U.S., at 721-22.

". . . whether its operation will promote the traditional aims of punishment -- retribution and deterrence . . ."

There is no question but that this forfeiture statute serves to promote the traditional aims of punishment -- retribution and deterrence. The seizure and forfeiture of a person's house certainly sends a stern message to the community that participating in drug offenses will be met with stiff punishment. And for many criminal defendants, the loss of a residence they have spent years paying for is as serious a punishment as going to jail. However, punishment is not a legitimate goal of a civil penalty. Bell v. Wolfish, 441 U.S. 520, 539 n. 20 (1979).

In order to remain a civil penalty, it must bear a reasonable relationship with the fostering of a "remedial" goal. Typically, the stated remedial goal of civil forfeiture is to remove the means of committing further offenses.

Civil in rem forfeitures . . . should not be used as tools for imposing punitive sanctions for criminal violations because they do not utilize sufficiently protective procedures. Therefore, punishment is not a legitimate governmental interest in civil forfeitures. The government's regulatory objective in using forfeitures is to prevent criminals from using property to commit a criminal offense. The government achieves this objective in a forfeiture proceeding by seizing and condemning property that criminals used to perpetrate their crime.

If, in this case, the government were really pursuing the remedial goal of removing the means of committing further offenses, it would not have waited over a year after the alleged offense was committed, through the jury trial in the criminal case, and into the third day of jury deliberations, before initiating forfeiture proceedings.

Secondly, forfeiting a homeowner's residence and putting a family on the street is not rationally related to the stated goal of removing the means of committing further offenses. As we stated in our earlier pleadings, a person has to stay somewhere, whether it is in his own home that he is working to pay for, or in some homeless shelter on the public dole. Either way, the person can as easily possess or store drugs either place. Even a person living on a hot air grate can find some place to store drugs, if he has a mind to. The prevalence of drugs in shelters for the homeless is widely documented, and proves that rendering someone homeless does not remove the means of committing further offenses. If anything, the stability and responsibility that home ownership entails tends to militate against involvement in drugs, whereas sense of hopeless and helplessness that results from homelessness creates an atmosphere which breeds drug abuse.

Thus, forfeiture of a homeowner's residence is a far cry from the "remedial" purpose announced in Calero-Toledo v. Pearson Yacht Leasing Co., supra, in which the means of committing further offenses was a ship, leased in the Carribbean, which had been used once, and could be used again, to import drugs.

". . . whether the behavior to which it applies is already a crime"

Little need be said about this factor. Not only is possession and distribution of controlled substances already a crime, but this forfeiture statute is just one part of the comprehensive criminal statute in which the criminal penalties for the same conduct appear.

". . . whether an alternative purpose to which it may rationally be connected is assignable for it"

Apart from removing the instrumentality for committing further offenses, which has been discussed and discounted above, the only alternative purpose rationally assignable for forfeiture of a residence is to compensate the government for financial losses. Such a justification has been found to support a civil penalty only when the amount of the penalty is roughly equivalent to the amount of the loss to the government. United States v. Halper, ___ U.S. ___, 109 S.Ct. 1892 (1989) (holding when civil penalty exceeds reasonable cost of compensating government for its losses attributable to the defendant's violations, it loses its remedial aspect and becomes sufficiently criminal to trigger the double jeopardy clause.)

A forfeiture designed solely to produce revenue, without serving other governmental objectives, would violate the just compensation clause because it has the effect of placing the expense of public benefits on a few persons when it ought to be borne by all. See Armstrong v. United States, 364 U.S. 40, 49 (1960).

". . .and whether it appears excessive in relation to the alternative purpose assigned.

This language from Mendoza-Martinez was expanded upon by the United States Supreme Court this past year in Halper, supra, in which the Court set a formula for determining when a civil penalty becomes so excessive as to trigger the double jeopardy clause.

We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. . . . Furthermore, "[r]etribution and deterrence are not legitimate nonpunitive governmental objectives." . . . From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can be explained only as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. Cf. Mendoza-Martinez, 372 U.S. at 169, 83 S.Ct. at 568 (whether sanction appears excessive in relation to its nonpunitive purpose is relevant to determination of whether sanction is civil or criminal.) We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.

* * *

Where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as "punishment" in the plain meaning of the word, then the defendant is entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment. We must leave to the trial court the discretion to determine on the basis of such an accounting, the size of the civil sanction the Government may receive without crossing the line between remedy and punishment.

For the foregoing reasons, the use of the civil forfeiture provisions of Section 881(a)(7) in this case, instead of the appropriate criminal forfeiture mechanism of Section 853, violates due process and therefore the case must be dismissed.

II. The Disproportionality Between the Offense Alleged and the Penalty of Forfeiture of All Title to Claimants' Residence Would Violate the Eighth Amendment's Cruel And Unusual Punishment Clause, And Therefore the Forfeiture is Barred By the Constitution

The Eighth Amendment to the Constitution of the United States provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

As we will show, the constitutional requirement that the penalty not be disproportionate to the offense applies to civil forfeitures as well as criminal forfeitures and ordinary criminal cases, whether because forfeiture is so penal that the Eighth Amendment's prohibition against cruel and unusual punishment applies, or because its quasi-criminal nature requires that proportionality be read into forfeiture proceedings through the Fifth Amendment's Due Process Clause.

A. The Eighth Amendment's Proportionality Requirement Applies To Civil Forfeiture Cases

1. Certain Criminal Procedural Safeguards Apply to Civil Forfeiture Because of Its Quasi-Criminal Nature

[P]roceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal. In this very case the ground of forfeiture . . . consists of certain acts of fraud committed against the public revenue . . . ; and it is declared, that the offender shall be fined . . . or be imprisoned . . .; and in addition to such fine such merchandise shall be forfeited. These are the penalties affixed to the criminal acts, the forfeiture sought by this suit being one of them. . . . The [case], though technically a civil proceeding, is in substance and effect a criminal one. . . . As, therefore, suits for penalties and forfeitures incurred by the commission of offenses against the law, are of this quasi criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the fourth amendment of the constitution.

The United States Supreme Court has extended several constitutional rights recognized in criminal cases to civil forfeiture actions. These include the Fourth Amendment's prohibition against unreasonable searches and seizures, One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693 (1965); the Fifth Amendment's privilege against self- incrimination, United States v. United States Coin & Currency, 401 U.S. 715 (1971); and the Fifth Amendment procedural due process requirement that forfeiture proceedings be instituted and trial on the merits be held without undue delay, United States v. $8,850, 461 U.S. 555 (1983).

The Supreme Court has not specifically considered whether the Eighth Amendment's Cruel and Unusual Punishment clause applies to forfeiture actions. In dicta, however, the Court has strongly suggested that, even in civil forfeiture cases, at some point disproportionality of the penalty to the offense violates the Constitution. In One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania the Court stated:

[A]s Mr. Justice Bradley aptly pointed out in Boyd, a forfeiture proceeding is quasi-criminal in character. Its object, like a criminal proceeding, is to penalize for the commission of an offense against the law.

* * *

In this forfeiture proceeding [the claimant] was subject to the loss of his automobile, which at the time involved had an estimated value of approximately $1,000, a higher amount than the maximum fine in the criminal proceeding. . . . That the forfeiture is clearly a penalty for the criminal offense and can result in even greater punishment than the criminal prosecution has in fact been recognized by the Pennsylvania courts.

In Commonwealth v. One 1959 Chevrolet Impala Coupe, involving a forfeiture in 1962, the Pennsylvania Superior Court in affirming the exercise of discretion to waive a forfeiture following a criminal prosecution, stated:

It seemed to the court below that to make this man pay the sum of $500.00 in fines, together with the costs of the proceeding and the storage cost for the automobile, was sufficient punishment under all the circumstances. To forfeit a 1959 Chevrolet Impala coupe in addition to the above seemed to the court below to be entirely out of proportion to the crime involved. We cannot say that the court below abused its discretion in so acting. 201 Pa. Super. 145, 150, 191 A.2d 717, 719.

2. The Eighth Amendent Proportionality Requirement Applies to Criminal Forfeiture

The Ninth Circuit has held that "in personam" "criminal forfeiture" statutes are subject to the Eighth Amendment's prohibition against disproportionate punishments. In United States v. Busher, 817 F.2d 1049 (9th Cir. 1987), the court held that criminal forfeiture under RICO, 18 U.S.C. Sec. 1963(a)

is clearly "punishment" as that term is used in the eighth amendment. See S.Rep. No. 617, 91st Cong., 1st Sess. 124 (1969) (a forfeiture proceeding under section 1963 is "in personam" against the defendant who is the party to be punished.)

Our review of the relevant Supreme Court cases, particularly Solem, convinces us that Busher has raised legitimate concerns as to the constitutionality of the forfeiture ordered in this case. RICO's forfeiture provision affords the trial court no discretion. Once the jury determines that property was acquired, maintained or operated in violation of section 1962, it must find forfeitable the defendant's entire interest in the property. . . . Moreover, the statute gives the district judge no authority to exclude from the forfeiture order any of the property the jury finds is covered by the liberal language of section 1963(a).... But RICO's breadth and inflexibility counsels caution, for "no penalty is per se constitutional." Solem, 463 U.S. at 290, 103 S.Ct. at 3009-10. Since RICO's forfeiture provision is quite literally without limitation, it may well exceed constitutional bounds in any particular case.

Even though the statute provides no discretion, the district court must avoid unconstitutional results by fashioning forfeiture orders that stay within constitutional bounds. We therefore hold that where, as here, plaintiff makes a prima facie showing that the forfeiture may be excessive, the district court must make a determination, based upon appropriate findings, that the interest ordered forfeited is not so grossly disproportionate to the offense committed as to violate the eighth amendment.

In United States v. Littlefield, 821 F.2d 1365 (1987), the Ninth Circuit extended the Busher holding to criminal forfeiture proceedings brought pursuant to 21 U.S.C., Sec. 853. Section 853 is the criminal forfeiture counterpart to 21 U.S.C., Sec. 881, the federal civil forfeiture statute after which Article 27 Sec. 297 is patterned.

The two statutes construed in Busher and Littlefield are both in personam "criminal" forfeiture statutes, while the statute here is an in rem "civil" forfeiture statute.

The classical distinction between civil and criminal forfeiture was founded upon whether the penalty assessed was against the person or against the thing. Forfeiture against the person operated in personam and required a conviction before the property could be wrested from the defendant. See Calero-Toledo, 416 U.S. at 682, 94 S.Ct. at 2091; One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700, 85 S.Ct. 1246, 1250; 14 L.Ed.2d 170 (1965). Such forfeitures were regarded as criminal in nature because they were penal; they primarily sought to punish.

[i]f an indictment had been presented against the claimant[], upon conviction the forfeiture of the goods [here, automobile] could have been included in the judgment. If the government prosecutor elects to waive an indictment, and to file a civil information against the claimants, -- that is, civil in form, -- can he by this device take from the proceeding its criminal aspect and deprive the claimants of their immunities as citizens, and extort from them a production of their private papers, or, as an alternative, a confession of guilt? This cannot be. The information, though technically a civil proceeding, is in substance and effect a criminal one.

Criminal forfeiture statutes, by definition, afford all the constitutional protections of the criminal law to the property owner/criminal defendant. The fact that a forfeiture statute is denominated "civil" is not determinative of whether a particular procedural requirement from constitutional criminal procedure applies. Because civil forfeiture -- even common garden variety in rem action, such as the forfeiture in Calero-Toledo -- is quasi-criminal, many of the constitutional safeguards applicable in criminal cases have also been read into civil forfeiture law by the Supreme Court. The fact that some criminal procedural safeguards apply but not others demonstrates that some constitutional safeguards are broader than others.

The Eighth Amendment prohibition against disproportionate punishment is a constitutional safeguard which must be extended to civil forfeitures precisely because the more disproportionate a penalty is to the offense, the more punitive it becomes.

B. Disproportionate Civil Forfeitures are Prohibited by The Cruel and Unusual Punishment Clause

The first question which must be addressed in determining whether the Eighth Amendment's cruel and unusual punishment clause applies to civil forfeiture is "Is it punishment?". In Ingraham v. Wright, 430 U.S. 651 (1977), the Supreme Court held that the paddling of school children as a means of maintaining discipline in the schools was not "punishment" within the meaning of the cruel and unusual punishment clause. In so holding the Court made a distinction:

The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Bail, fines, and punishment traditionally have been associated with the criminal process, and by subjecting the three to parallel limitations the text of the Amendment suggests an intention to limit the power of those entrusted with the criminal law function of government.

Unlike the paddling of school children, civil forfeiture of a person's dwelling under 21 U.S.C. Sec. 881(a)(7) is a penalty for the commission of a criminal offense. As the Supreme Court said in Plymouth Sedan:

a forfeiture proceeding is quasi-criminal in character. Its object, like a criminal proceeding, is to penalize for the commission of an offense against the law. . . . [T]he forfeiture is clearly a penalty for the criminal offense and can result in even greater punishment than the criminal prosecution. . . .

Secondly, it is clear that 21 U.S.C. Sec. 881 is part of a comprehensive criminal statute enacted to deter drug trafficking. It may, as in the case of Herbert Gibson and Arnetta Allen, result in a loss of property worth far more than the maximum fine for the criminal offense. The maximum fine for simple possession of cocaine under federal law is $1000 to $5000. The Gibson's house was appraised by the government at $88,600. Verified Complaint for Forfeiture In Rem, at 2.

Third, as the majority pointed out in Ingraham:

Some punishments, though not labeled "criminal" by the state, may be sufficiently analogous to criminal punishments in the circumstances in which they are administered to justify application of the Eighth Amendment. Cf. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). We have no occasion in this case, for example, to consider whether or under what circumstances persons involuntarily confined in mental or juvenile institutions can claim the protection of the Eighth Amendment.

Finally, under the traditional in rem forfeiture statute, like the one construed in Calero-Toledo v. Pearson Yacht Leasing Company, 416 U.S. 663 (1974), the guilt or innocence of the owner is immaterial in determining whether a statutory basis exists for forfeiture.² Under Section 881(a)(7), on the other hand, innocence of the owner is a defense. That section provides:

no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.

Under these standards, it seems clear that forfeiture under Section 881 is "punishment" for purposes of the Cruel and Unusual Punishment clause.

The second question remains, is it "cruel and unusual?". Under the standards of Solem v. Helm, 463 U.S. 277, 284 (1983), a particular punishment is cruel and unusual if it is disproportionate to the offense committed. Claimants would submit that the penalty is sufficiently disproportionate under the facts of this case to constitute cruel and unusual punishment, even if the offenses alleged are proven.
 

D. Disproportionate Forfeitures Are Prohibited by The Eighth Amendment's Prohibition Against Excessive Fines

The Eighth Amendment prohibits excessive fines as well as cruel and unusual punishment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

From the relevant constitutional standpoint there is no difference between a man who "forfeits" $8,674 because he has used the money in illegal gambling activities and a man who pays a "criminal fine" of $8,674 as a result of the same court of conduct. In both instances, money liability is predicated upon a finding of the owner's wrongful conduct. . . .

The drafters of the Eighth Amendment were apparently concerned about forfeitures as well as fines when they included the "excessive fines" clause. Thomas James Norton, in his book The Constitution of the United States: Its Sources and Application (1922) states, as the source of this clause:

The excessive fine under Magna Charta was the penalty or forfeiture which deprived a man of his "contenement" -- of his living or ability to pursue his calling or his business. In Magna Charta it was declared that "a free man shall not be amerced for a small offense, but only to the degree of the offense; and for a great delinquency, according to the magnitude of the delinquency, saving his contenement."

However, the Supreme Court has had little to say with reference to the "excessive fines" clause of the Eighth Amendment. It has never construed that clause of the Eighth Amendment. See, Congressional Research Service, The Constitution of the United States: Analysis and Interpretation p. 1250 (Gov't Printing Office 1973).

The [Supreme] Court has elected to deal with the issue of fines levied upon indigents, resulting in imprisonment upon inability to pay, in terms of the equal protection clause, thus obviating any necessity to develop the meaning of "excessive fines" as applied to the person sentenced. The meaning of the phrase as applied to the quantum of punishment for any particular offense, independent of the ability to pay of the offender, is something which must await litigation.

D. Even if the Eighth Amendment is Found Not To Apply To Civil Forfeitures, Proportionality Is Nonetheless Required By The Due Process Clause

It may be that the "cruel and unusual punishment" clause of the Eighth Amendment applies to criminal forfeitures but not civil forfeitures. The question then remains whether an analogous guarantee of proportionality is nevertheless required by the Due Process Clause.

The fact that a particular constitutional amendment on its face applies only to criminal cases is not determinative of whether it applies to civil forfeitures. Some constitutional amendments not specifically applicable outside the criminal context are nevertheless applicable in substance to civil forfeiture claimants through the Due Process clause. For example, the "speedy trial" guarantee of the Sixth Amendment, though not directly applicable to "civil" forfeiture cases, was read into civil forfeiture law through the Due Process Clause. United States v. $8850, 461 U.S. 555 (1983). Likewise, if the Eighth Amendment does not technically apply to civil forfeiture, its substance should be read in through the Due Process Clause.

In Ingraham v. Wright, supra, the Supreme Court held that the Eighth Amendment cruel and unusual punishment clause did not apply to corporal punishment of school children, but stated that

The pertinent constitutional question is whether the imposition is consonant with the requirements of due process.
The Fourteenth Amendment prohibits any state deprivation of life, liberty, or property without due process of law.

* * *

[T]he state does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment.

Applying this reasoning to civil forfeitures, it is clear that proportionality between the offense and the penalty is a constitutional guarantee which must be read into civil forfeiture through the Due Process Clause.

An apt analogy is the distinction made between convicted prisoners and pretrial detainees with regard to the applicability of the Eighth Amendment cruel and unusual punishment clause. The Eighth Amendment applies to convicted prisoners but not pretrial detainees. This does not mean, however, that pretrial detainees and civil forfeiture claimants have no constitutional protection against cruel and unusual punishment. On the contrary, they are entitled to greater protection. Pretrial detainees may not be incarcerated under conditions that constitute "punishment;" they need not prove that the punishment was "cruel and unusual" in order to prevail on the constitutional claim. Bell v. Wolfish, 441 U.S. 520 (1979). The protection afforded pretrial detainees arises under the Due Process Clause.

Likewise, civil forfeiture claimants should be entitled to greater protection against cruel and unusual punishment than criminal forfeiture claimants. Like pretrial detainees, the class of civil forfeiture claimants contains a far greater percentage of innocent persons than the class of convicted criminal defendants/criminal forfeiture claimants. The likelihood of an erroneous deprivation is thus substantially greater with civil forfeitures than with criminal forfeitures. Allowing seizures disproportionate to the offense in civil forfeiture actions but prohibiting them in criminal forfeiture is an unfair and illogical distinction that does not comport with due process.

III. The Delay Between the Alleged Offense and The Filing of This Forfeiture Action Violates Claimant's Rights to a Speedy Trial and Due Process of Law under United States v. $8850

In United States v. $8,850, 461 U.S. 555 (1983), (hereinafter cited as $8850) the United States Supreme Court held that the four factor balancing test of Barker v. Wingo, 407 U.S. 514 (1972), used to determine when delay of the trial in criminal cases violates the accused's rights to a speedy trial, is the test to be used in determining when delay in forfeiture cases violates the Due Process clause.

The delay challenged in $8850 was the before the filing of a forfeiture complaint. It has also been held that the Barker v. Wingo factors apply to delay between the filing of the forfeiture complaint and the trial. United States v. Banco Cafetero Panama, 797 F.2d 1154 (2nd Cir. 1986).

The four factors set out by Barker v. Wingo and $8850 are: "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." $8850 at 565.

A. Factor I. Length of Delay

Little can be said on when a delay becomes presumptively improper, for the determination necessarily depends on the facts of the particular case. Our inquiry is the constitutional one of due process; we are not establishing a statute of limitation. Obviously, short delays -- of perhaps a month or so -- need less justification than longer delays. We regard the delay here -- some 18 months -- as quite significant. Being deprived of this substantial sum of money for a year and a half is undoubtedly a significant burden.

Under the federal statutes, periods of less than 18 months have been found to be significant enough to trigger due process analysis under the Barker factors. In United States v. $23,407.69, 715 F.2d 162 (1983) the Fifth Circuit found a delay of 13 months between the seizure and the filing of the forfeiture complaint to be inordinate and unjustified, and upheld the District Court's dismissal of the government's forfeiture case. The Fifth Circuit noted that the Supreme Court, in $8850 had upheld a forfeiture where the delay between seizure and filing of the forfeiture complaint was 18 months, but pointed out that, in $8850 the Court, while finding the length of the delay significant, "had found solid grounds for the delay in the government's investigations and criminal trial throughout the delay." $23,407.69, supra at 165. The Fifth Circuit also pointed out that the government had done nothing to advance the forfeiture case for the first six months after the seizure, while in $8850, within eight days of the seizure the property owner was officially notified that the property was subject to forfeiture and that she had a right to petition for remission.

It was this immediate reaction by the government, taking the first steps to establish the forfeiture, upon which the Supreme Court most heavily relied in finding that there had not been unreasonable delay in the forfeiture of the $8,850.

The Court then went on to point out that once the notification had been made, the administrative proceedings had begun, a criminal prosecution took place, and other actions were being taken by both sides throughout the entire period of the delay. In the case before us, the government delayed six months with no explanation of any kind and no excuse before it notified Bishop that it was undertaking to establish a forfeiture of the cash involved. It is clear to us that this unexplained delay violates the guidelines of Barker v. Wingo, as made applicable to a forfeiture case by the $8850 case.

B. Factor II. Reason for the Delay

[C]losely related to the length of delay are the reasons the government assigns to justify the delay.... Different weights should be assigned to different reasons."

The District of Columbia courts have developed extensive case law on this element in the criminal law context. In Graves v. United States, 490 A.2d 1086 (D.C. 1984) (en banc), cert. denied, 474 U.S. 1064 (1986), the court set out three categories of delay: intentional delay by the government, "neutral" delays caused by crowded court dockets, and an intermediate category of "significant" delay. As to the first category, "intentional delays"

whenever the government's action at any stage of the proceedings indicates bad faith, neglect or a purpose to secure delay itself or some other procedural advantage, the resulting delay is not justified.

"Significant" delays are delays for which the government is less culpable than in the category of intentional delays caused to gain a tactical advantage, but more culpable than delays caused solely by failure to advance the trial date due to court congestion. For example,

the passing of a considerable length of time, especially after an accused has asserted his speedy trial right should motivate the government to seek a prompt trial. If the government fails to take the necessary steps to effect an immediate trial, then the delay must be accorded substantial weight in the speedy trial calculus.

In this case there was no apparent reason why the government waited over a year after the alleged offense to file the forfeiture complaint. Although there were criminal proceedings pending during this time, the government did not wait until they were concluded, but filed this action while the jury was still deliberating in the criminal case. During this year, the government gave the Gibsons no warning that their home might be subjected to forfeiture.

Nor does the pendency of administrative remedies justify the delay. The Court in $8850 noted the availability of administrative remedies which could be pursued by the claimant and which, in many cases, obviated the need for trial. The Supreme Court relied heavily upon the pendency of administrative remedies of remission and mitigation in upholding the delay in $8850. Those administrative remedies were not available to the Gibsons.

Factor III. Assertion of the Right

As soon as their home was seized the Gibsons began asserting their right to a speedy trial, even to the point of agreeing to an expedited schedule which required them to give up discovery mechanisms (such as interrogatories) to which they were entitled and some of the trial preparation time normally afforded in civil cases.

Factor IV. Prejudice to the Defendant

The primary inquiry here is whether the delay has hampered the claimant in presenting a defense on the merits, through, for example, the loss of witnesses or other important evidence. Such prejudice could be a weighty factor indicating that the delay was unreasonable.

Aside from the prejudice from fading memories which is inherent with pretrial delay, the government's delay in providing notice of their intent to pursue forfeiture in this case prejudiced claimants with regard to the strategy by which they defended these cases. Both of the Gibsons testified in their criminal trial. Had they known anything they said could be used against them in this separate forfeiture proceeding, they might have decided not to take the stand. Or, they might have decided to take the stand, but to raise the privilege against self- incrimination in answer to questions which prejudiced their forfeiture case. As we demonstrated in Part I above, the privilege against self-incrimination applies to civil forfeitures involving a showing of criminal culpability, as well as to criminal offenses. Supra, p. 4.

The seizure for forfeiture of the Gibson's family home and all its contents was clearly "punitive" under standards announced by the Supreme Court. The civil forfeiture statute cannot, in consonance with the Due Process Clause, be used to punish, but can only be used for remedial purposes. There is not a sufficiently rational relationship between the seizure in this case and any legitimate remedial purpose to justify allowing the government to proceed against the Gibson's home under the scant due process protections afforded under Section 881. Therefore, this complaint cannot support a section 881 forfeiture, and it must be dismissed. The government's alternative would then be to present the forfeiture case to the grand jury, obtain an indictment if they can, and proceed under 21 U.S.C. Section 853. Furthermore, the attempt to forfeit the Gibson's home cannot succeed without violating the Eighth Amendment's Cruel and Unusual Punishment Clause, because the forfeiture would be disproportionate to the alleged offense. The more disproportionate a penalty, the more punitive it becomes. The more punitive it becomes, the more it implicates the Eighth Amendment's cruel and unusual punishment clause and/or the Due Process Clause of the Fifth Amendment. This is clearly a case where the punishment overwhelms the crime to such an extent that it offends the Constitution, whether the specific provision of the Constitution be labelled the "cruel and unusual punishment" clause or the "due process" clause.

Finally, the year's delay before the filing of the complaint in this case was intentional delay on the part of the government. It was not prompted by the pendency of the criminal prosecution, because the government did not wait for the verdict before seizing the property. The delay in this case is so severe that prejudice should be presumed, under the standards developed in the criminal law context.

Therefore, for these reasons and for any other reasons as may arise in a hearing on this motion, summary judgment should be entered in claimants' favor.
 

                                                                                                                Respectfully submitted,
 

                                                                                                                ________________________
                                                                                                                BRENDA GRANTLAND
                                                                                                                1201 Connecticut Ave. N.W.
                                                                                                                Suite 750
                                                                                                                Washington, D.C. 20036
                                                                                                                (202) 728-4088
 

FOOTNOTES:

1. There are only minor differences in the facts of the two cases, none of which are significant enough to change the due process calculus. Most significantly, Kingsley was brought under Section 881(a)(7), dealing with alleged proceeds of crime, where this case arises under Section 881(a)(6), dealing with the forfeiture of real estate allegedly used to facilitate narcotics distribution.