Covering Your Assets

When Richard Austin pleaded guilty to one count of possessing cocaine with intent to distribute, the state of South Dakota sentenced him to seven years in prison. Federal authorities also seized his mobile home and auto-body shop in a civil forfeiture action.

Austin appealed, arguing that the forfeiture violated the Excessive Fines Clause of the Eighth Amendment. The government maintained that the Eighth Amendment does not apply to owners in civil forfeiture cases. (See "Ill-Gotten Gains," Aug./Sept.)

On June 28, the U.S. Supreme Court unanimously sided with Austin. Justice Harry Blackmun wrote for the Court that "the question is not, as the United States would have it, whether forfeiture is civil or criminal, but rather whether it is punishment." The Court rejected the idea that civil forfeiture is "remedial," a form of compensation owed to the state. Since forfeiture is a monetary punishment, it is subject to the Excessive Fines Clause. The decision leaves open the possibility that other protections enjoyed by criminal defendants, such as a heavier burden of proof on the prosecution, might also be extended to civil forfeiture cases.

"This decision will end the grossly disproportionate, blatantly inequitable seizures we've seen under the drug war's 'zero-tolerance' doctrine," says Scott Bullock, an attorney with the Institute for Justice, a public-interest law firm in Washington, D.C. "The Court has sent a message to the government that these kinds of seizures will no longer be tolerated."

Congress is also reviewing forfeiture abuses. On June 15, Rep. Henry Hyde (R-Ill.) introduced the Civil Forfeiture Reform Act of 1993. Hyde's bill would shift the burden of proof in civil forfeiture cases back to the government, which would have to prove by "clear and convincing evidence"—instead of the current "preponderance of the evidence"—that property it seeks to confiscate was used in a crime or was purchased with the proceeds of a crime.

The Hyde bill would also give poor defendants the right to a court-appointed attorney, paid for with money from asset-forfeiture funds. It would allow "lack of consent" and "reasonable efforts to prevent illegal activity" as valid defenses against forfeiture, and it would make the government liable for damage to seized property.

The Supreme Court will hear other forfeiture cases next term, including United States v. James Daniel Good Real Property. At issue in Good is whether the government must meet due-process guarantees under the Fifth Amendment when seizing property.