US Supreme Court Defines Approach to be Used in Determining Excessiveness of Criminal Forfeiture

Clarifying the proper approach to test the constitutionality of a criminal in personam forfeiture, the US Supreme Court has recently determined that only a ‘proportionality test’ can be used to determine whether such a forfeiture violates the prohibition against excessive fines found in the Excessive Fines Clause of the Eighth Amendment to the US Constitution. Prior to this determination, lower courts were split as to whether to apply an instrumentality test, a proportionality test, or some combination of the two. The more encompassing instrumentality test, as used in civil in REM forfeiture, only enquires whether the seized property was ‘instrumental’ in the commission of the underlying offence. If property itself was used to facilitate a crime, however slight, the property was forfeit to the government. This test allowed for the forfeiture of huge amounts of currency or property such as an entire estate if the court determined that the property was used as the meeting place for the sale of an occasional marijuana cigarette. On the other hand, the proportionality test requires a judicial analysis of the ‘proportionality’ of the forfeiture to the egregiousness of the underlying criminal activity. In adopting a proportionality rule, the Supreme Court has receded from the bright‐line test for approving forfeiture and reinvested the judiciary with some latitude in examining the more egregious excesses of criminal forfeiture.