Supreme Court Limits Criminal Forfeiture

IN THE COURTS July-August 1998

On June 22, the Supreme Court ruled 5-to-4 that a forfeiture intended as punishment is unconstitutional "if it is grossly disproportional to the gravity of a defendant's offense" (U.S. v. Bajakajian, USSupCt, No. 96-1487, 63 CrL 383, 6/22/98) (Linda Greenhouse, "Justices Narrow the Uses of Forfeiture," New York Times, June 23, 1998, p. A14; David G. Savage, "Forfeiture of Cash at LAX Struck Down," Los Angeles Times (Washington Edition), June 23, 1998, p. A1; "Criminal Forfeiture -- Excessive Fines Clause," The Criminal Practice Report, July 1, 1998, Vol. 12, No. 13, p. 268).

The case involved $357,144 in cash seized in 1994 at Los Angeles International Airport. Federal officials seized the money from Hosep Bajakajian, who attempted to bring it to Cyprus in his luggage to repay a family debt. Federal law requires reporting of all currency in excess of $10,000 being taken out of the country (31 U.S.C. 5316(A)). Officials confiscated the money claiming that violation of the law allows them to seize "any property, real or personal, involved in such offense."

However, the Supreme Court ruled that the seizure was unconstitutional because it violated the Eighth Amendment protection against "excessive fines," Justice Clarence Thomas said in the majority opinion. Thomas said forfeiture of all of Bajakajian's money was disproportional to the offense, because the Government lost nothing except "the information that $357,144 had left the country."

In the dissenting opinion, Justice Anthony Kennedy, said that the ruling "portends serious disruption of a vast range of statutory fines." Kennedy predicted that it may lead legislators to pass mandatory minimum prison sentences instead of fines. "Drug lords will be heartened by this, knowing the prison terms will fall upon their couriers while leaving their own wallets untouched," he said. Without full forfeiture, "the fine permitted by the majority would be a modest cost of doing business in the world of drugs and crime."

Tom Gordon, Interim Director of Forfeiture Endangers American Rights (FEAR), said, "We hope that this case will be a watershed in forfeiture litigation." FEAR is a Washington, DC based nonprofit dedicated to fighting the abuses of asset forfeiture."

Tom Gordon, FEAR - P.O. Box 15421, Washington, DC 20003, Tel: (202) 546-4381, Fax: (202) 546-7873.

James E. Blatt, Attorney for Bajakajian - Law Offices, 16000 Ventura Blvd., Suite 1208, Encino, CA 91436, Tel: (818) 986-4180.