| 词汇 | FORFEITURE2 |
| 释义 | `1`FORFEITURE2 `2` "Legal Lexicon": This position is supported by the following reasons. First, the instrumentality test rests on a sharp distinction between in personam (criminal) and in rem (civil) forfeitures, the importance of which was reduced by the Court's decision in Austin. See The Supreme Court, 1992 Term - Leading Cases, 107 Harv.L.Rev. 144, 212-3 ('93) ('1992 Term'). It made punishment the focus of attention. For purposes of the Excessive Fines Clause, 'the question is not . . . whether forfeiture . . . is civil or criminal, but rather whether it is punishment.' Austin, 113 S.Ct. at 2806. The Court recognized that, like in personam punishments, in rem forfeitures also punish the property owner. Id. at 2812. As a result, 'the focal elements of a proportionality test--the severity of the claimant's offense and the worth of the forfeited property--become relevant to in rem forfeitures as well.' 1992 Term at 213. Only by adding a proportionality test is the 'excessiveness' of the fine determined by weighing both the in rem and in personam punishments against the seriousness of the crime. See U.S. v. Littlefield, 821 F.2d 1365, 1368 (9th Cir.'87); U.S. v. Busher, 817 F.2d 1409, 1415 n.10, 1416 (9th Cir. '87). While to many one's liberty is more precious than one's property, all would concede that a deprivation of both is worse than the loss of either alone. Second, because the punishment in personam is fixed by statute and sentencing guidelines in many instances, it is fines that must not be 'excessive.' It is 'difficult to imagine, apart from a wholly arbitrary `ceiling' figure, how a fine could ever be found `excessive' without some analysis of the relationship between the penalty and the offense for which it is imposed.' In addition, the Excessive Fines Clause should be read to employ a proportionality standard as does the Supreme Court's interpretation of the Excessive Bail Clause, in which the Court reads 'excessive' to require proportionality between the amount of bail and the 'interest the Government seeks to protect,' i.e., the risk of flight. U.S. v. Salerno, 481 U.S. 739, 754 ('87); see also 1992 Term at 211; Eaddy, supra, at 722. Third, and most persuasive, the majority in Austin specifically refused to endorse Justice Scalia's instrumentality test as 'the sole measure of an in rem forfeiture's excessiveness.' 113 S.Ct. at 2815 n.15. Rather, the Court suggested that other factors were also relevant: 'We do not rule out the possibility that the connection between the property and the offense may be relevant, but our decision today in no way limits the Court of Appeals from considering other factors in determining whether the forfeiture of Austin's property was excessive.' Id. Go to FORFEITURE3 |
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