STATE OF MARYLAND :
:
v. :                                                                                                                     CAE # 88-06560
:
1987 TOYOTA CELICA :
VIN: JT2ST66COH7120784 :
Tag: SGJ401 (Md). :
Registered Owner: :
George Franklin Coates :
 

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.

In this case the government is alleging that Mr. Coates, the claimant/defendant, was in simple possession of a "trace" or "residue" of cocaine -- not even a measurable amount. He has no prior record. There is no evidence that Mr. Coates was involved in the distribution of cocaine. For the alleged simple possession of this tiny amount of cocaine, the government is attempting to forfeit his entire interest in his 1987 Toyota Celica, worth approximately $11,000 at the time of seizure.

As we will show, the constitutional requirement that the penalty not be disproportionate to the offense applies to civil forfeitures as well as 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.
 

I. THE EIGHTH AMENDMENT PROPORTIONALITY REQUIREMENT APPLIES TO
CIVIL FORFEITURE CASES

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

It has long been recognized that civil forfeiture, which deprives citizens of their property by virtue of offenses committed by them, is quasi-criminal and, therefore, certain constitutional rights afforded the accused in criminal actions also apply in civil forfeiture cases.

[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.

B. 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.

The distinction between criminal and civil forfeitures merely states the obvious. 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 constitutional provision applies. Because civil forfeitures are quasi-criminal, some, but not all of the criminal constitutional safeguards have been read into civil forfeiture law by the Supreme Court. The fact that some apply but not others demonstrates that some constitutional safeguards are broader than others.

A survey of the cases in which the Supreme Court has extended, or refused to extend, particular criminal safeguards to civil forfeitures is instructive. The Court has found no constitutional impediment to civil forfeiture statutes imposing a civil burden of proof, see One Lot Emerald Cut Stones, 409 U.S. 232, (1972) (per curiam); United States v. 89 Firearms, 465 U.S. 354 (1984); and because of the lower burden of proof, neither collateral estoppel nor double jeopardy prohibit a civil forfeiture proceeding following an acquittal in the criminal case. Emerald Cut Stones, supra; 89 Firearms, supra. An older case, United States v. Zucker, 161 U.S. 475 (1896), which may or may not have stood the test of time, holds that the confrontation clause is inapplicable to forfeiture cases. The Court has also upheld civil forfeiture statutes in which the innocence of the owner is not a defense -- that is, which impose a negligence standard rather than the criminal standard of mens rea. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1973).

The pattern that emerges is this: civil forfeiture statutes may ease the government's task in making out a prima facie case by imposing civil standards and the rules of civil procedure and evidence. Other constitutional rights, however, are broader and apply to forfeiture proceedings even though they are denominated "civil." These include the Fifth Amendment privilege against self-incrimination, Boyd v. United States, 116 U.S. 616 (1886), United States v. United States Coin & Currency, 401 U.S. 719 (1971), and the Fourth Amendment exclusionary rule, Plymouth Sedan, supra. In addition, the Sixth Amendment's requirement of a speedy trial has been read into the Due Process Clause. United States v. $8850, 461 U.S. 555 (1983).

The Eighth Amendment prohibition against disproportionate punishment is another 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.

C. 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 automobiles under Maryland Code Art. 27 Sec. 297 is based upon 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. . . .

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.

The second question remains, is it "cruel and unusual?" Under the standards of Solem v. Helm, 463 U.S. 277, 284 (1983), particular punishment is cruel and unusual if it is disproportionate to the offense committed.

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.

IV. IF THE EIGHTH AMENDMENT DOES NOT APPLY TO CIVIL FORFEITURES, PROPORTIONALITY IS NONETHELESS REQUIRED BY DUE PROCESS

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 from the Due Process Clause.

Likewise, civil forfeiture claimants deserve 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.

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.

In this case, the government is attempting to forfeit Mr. Coates 1987 Toyota Celica, a vehicle worth more than $11,000 at the time of the seizure, for the simple possession of a trace or residue -- not even a useable amount of cocaine. There was no indicia of distribution. The maximum fine for simple possession is $1000. Under the provisions of the forfeiture statute, if the court finds by a preponderance of the evidence that Mr. Coates possessed the trace amount of cocaine, it has no choice but to order the forfeiture of Mr. Coates' entire interest in the automobile. 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.
 

Respectfully submitted,
 

_______________________
Brenda Grantland #362417
419 7th Street N.W.
Suite 401
Washington, D.C. 20004
(202)393-8398