| 词汇 | FORFEITURE3 |
| 释义 | `1`FORFEITURE3 `2` "Legal Lexicon": Fourth, the Court's decision in Alexander v. U.S., 113 S.Ct. 2766 ('93), suggests that a proportionality test under the Excessive Fines Clause may be required. In Alexander, the Court considered the defendant's Eighth Amendment challenge to criminal forfeiture of his adult bookstores and theaters resulting from his conviction for RICO violations. The Court remanded the case for an analysis under the Excessive Fines Clause, finding that the court of appeals had failed to distinguish between the defendant's excessive fines claim and his claim under the Cruel and Unusual Punishments Clause: '[T]he court lumped the two together, disposing of them both with the general statement that the Eighth Amendment does not require any proportionality review of a sentence less than life imprisonment without the possibility of parole. But that statement has relevance only to the Eighth Amendment's prohibition against cruel and unusual punishments.' Id. at 2775. The Court did not explicitly state that proportionality review was required under the Excessive Fines Clause, but its direction to the court of appeals on remand implied as much: 'It is in the light of the extensive criminal activities which petitioner apparently conducted through this racketeering enterprise over a substantial period of time that the question of whether or not the forfeiture was `excessive' must be considered.' Id. at 2776. Finally, proportionality analysis is especially appropriate in the civil forfeiture context because it is the sovereign that profits from such forfeitures. Scalia recognized this when he stated: 'There is good reason to be concerned that fines, uniquely of all punishments, will be imposed in a measure out of accord with the penal goals of retribution and deterrence. Imprisonment, corporal punishment and even capital punishment cost a State money; [whereas] fines are a source of revenue. . . . [I]t makes more sense to scrutinize governmental action more closely when the State stands to benefit.' Harmelin v. Michigan, 501 U.S. 957, 979 n.9 ('91) (Scalia, plurality opinion). All assets seized by the Department of Justice go into its Asset Forfeiture Fund, which the Attorney General is authorized to use for law enforcement purposes. 28 U.S.C. S 524(c). This incentive enhances the need for close scrutiny of in rem forfeitures. Forfeitures, in effect, impose an impressive levy on wrongdoers to finance, in part, the law enforcement efforts of both the state and national governments. To that end, and to that extent, crime does pay. For this very reason, the judiciary, both state and federal, should be alert to detect constitutionally proscribed injustices imposed on individual wrongdoers. In sum, the concensus seems to be that a proportionality approach is appropriate to determine whether an in rem forfeiture, proper under an instrumentality test, violates the Excessive Fines Clause. See Hall Street, 853 F.Supp. 1399; accord U.S. v. One Parcel of Real Estate..., 872 F.Supp. 968, 973 (S.D.Fla.'94). In determining proportionality, a court, bearing in mind any in personam punishment of the owner, should consider, inter alia, the following factors in determining the harshness of the forfeiture: (1) the fair market value of the property; (2) the intangible, subjective value of the property, e.g., whether it is the family home; and (3) the hardship to the defendant, including the effect of the forfeiture on defendant's family or financial condition. Go to FORFEITURE4 |
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