Seizure Disorder

On June 9, 1994, Hosep Bajakajian was robbed of $357,144 while he and his family were waiting for a flight at Los Angeles International Airport. Customs inspectors seized the money under a federal law that requires travelers leaving the country to inform the government if they are carrying more than $10,000 in cash.

The Bajakajians–who were on their way to Cyprus, where they planned to repay a family debt–were not drug traffickers, tax evaders, or money launderers. They later said they tried to conceal the money because, as members of Syria's Armenian minority, they had learned to be wary of the government.

As if to confirm that attitude, the U.S. Customs Service informed the Bajakajians that their money was now subject to forfeiture. A federal judge thought this punishment was so out of line that it violated the Eighth Amendment's prohibition against "excessive fines." In one of its last decisions from the session that just ended, the U.S. Supreme Court agreed, finding that the forfeiture "would be grossly disproportional to the gravity of [Bajakajian's] offense."

The decision is the first time in more than two centuries of constitutional law that the Supreme Court has applied the Excessive Fines Clause. But the case is also interesting because it offers a window on the bizarre world of asset forfeiture.

Fighting to keep the Bajakajians' money, the Justice Department noted that the federal government has a long history of taking large sums from people based on relatively minor offenses, a practice the Supreme Court has repeatedly upheld. Why should the government suddenly have to worry about proportionality?

Writing for the majority, Justice Clarence Thomas replied that the forfeiture in this case was covered by the Excessive Fines Clause because it was a punishment for a crime. By contrast, the more traditional forfeitures cited by the Justice Department are "nonpunitive," carried out through "in rem" ("against the thing") proceedings in which the property itself is accused of wrongdoing and the owner's culpability is irrelevant.

In other words, when the government takes someone's property because he has broken the law, the forfeiture is a fine and must not be excessive. But when the government makes no accusation against the owner, taking his property because it may have been involved in a crime, the Excessive Fines Clause does not apply.

It gets worse. In such "nonpunitive" forfeitures–which are said to be "civil" rather than "criminal"–the government can seize an asset based on "probable cause," which may amount to little more than a hunch. The burden is then on the owner to prove that his property was not involved in a crime. To keep the asset, the government need not charge the owner (or anyone else) with an offense, let alone obtain a conviction.

For a long time, civil forfeiture was confined mainly to customs and piracy cases. During the 1980s it got a big boost from the war on drugs, promoted as a way of crippling traffickers by seizing the assets they used in their business or purchased with their profits.

But the combination of loose standards and a financial motive for police and prosecutors (who get to keep a share of the booty) soon led to other targets: the Nashville businessman whose money was seized at the airport because he made the mistake of paying for a ticket with cash; the elderly couple in Hawaii who lost their home because of their son's marijuana patch; the millionaire who was shot dead during a fruitless drug raid on his Malibu ranch, a valuable piece of real estate that police were eager to seize.

In response to horror stories like these, Representative Henry Hyde last year introduced a bill that would have shifted the burden of proof in civil forfeiture cases to the government and established other safeguards. After the legislation was hijacked by the Justice Department, which rewrote it to make seizures even easier, Hyde repudiated it. This spring he announced plans to revive the original version.

But the Hyde reforms, which are backed by a broad coalition of liberal, libertarian, and conservative groups, do not go far enough. As Cato Insitute constitutional scholar Roger Pilon noted in congressional testimony last year, the essential problem with civil forfeiture is the legal fiction, based on medieval doctrine, that a thing can be guilty of an offense. "Only people commit crimes," Pilon observed. It is time to stop pretending otherwise.