December 1998

HEADLINE: THE KING'S RICHES when does a fine become excessive?U.S. Supreme Court defines excessive bail; Brief Article


The Eighth Amendment of the Constitution reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This past summer, for the first time, the Supreme Court defined "excessive" as it pertains to the imposition of criminal fines.

The case before the Court, U.S. vs. Bajakajian, began in 1994, when Customs agents seized $357,144 in cash from a Los Angeles resident traveling with his family through LAX on the way to Cyprus. Hosep Bajakajian, a Syrian immigrant, intended to repay loans to relatives abroad who had invested in his gas station business. He and his wife had hidden the money deep in their luggage because they feared that overseas customs agents would steal it.
U.S. Customs agents found the currency first. They noted that Bajakajian had failed to file Customs Form 4790, which is required of anyone who is taking more than $10,000 in cash out of the country. The government, after what must have been careful deliberation, determined that the fine for this oversight should be precisely $357,144. (Bajakajian is not alone. In fiscal 1997, Customs agents seized $236 million from travelers leaving the country.) Two federal courts found in Bajakajian's favor, more or less: They lowered the forfeiture to $15,000, ordered the maximum fine un- der sentencing guidelines ($5000) and sentenced him to three years' probation.

The Justice Department expressed outrage at such coddling of a paperwork criminal. It appealed to the Supreme Court. During oral arguments, a Justice Department lawyer declared that any time a person takes more than $10,000 from the country without filing the proper form, "we have a dangerous situation on our hands."

In a brief, the government also made the case that seizing undeclared currency prevents crime. Here's how: "Forfeiture encourages persons to inform the government they are transporting more than $10,000 outside the country and prevents such money from being used in circumvention of requirements in the future." Using the same reasoning, Uncle Sam could confiscate the contents of your bank account to prevent you from making any illicit purchases.

The question facing the Supreme Court was: Is all of Bajakajian's money, as a fine, too much of his money? The government conceded the gas station owner had earned the cash lawfully, but in its defense said that he had broken the law by not declaring it. Therefore the government deserved the money because of its far-reaching authority to seize nearly any property involved in illegal activity. When pressed by the justices to cite a crime that would be exempt from forfeiture, a government lawyer said that a parking violation might not be enough to allow Uncle Sam to take your property.

By the narrowest of margins, the Supreme Court rejected this antiquated view. Writing for the majority in a 5-4 split, Clarence Thomas declared that "a punitive forfeiture violates the excessive fines clause if it is grossly disproportional to the gravity of a defendant's offense." The government had not made its case that his cash created a "dangerous situation."

Thomas also stressed that, historically, "the theory behind such forfeitures was the fiction that the action is directed against 'guilty property,' rather than against the offender." This medieval concept is one of the chief absurdities of forfeiture law: Because cash, boats, cars and homes have no legal standing, seizing them doesn't violate anyone's rights. The Bajakajian decision could signal a landmark shift, combining respect for property rights with traditional concerns over civil liberties.

Elsewhere in his opinion, Thomas noted that the forfeiture of Bajakajian's cash "bears no correlation to any injury suffered by the government." He didn't develop the thought further, but it is a fascinating standard. If widely adopted, it could undermine the penalties doled out for many consensual or nonviolent offenses such as firearms or drug possession, prostitution and gambling.

The four justices who voted against returning Bajakajian's cash invoked a 14th century English statute that authorized the confiscation of gold and silver exported without a license. Unfortunately, some of the Court's conservative justices seem to believe that whatever is good for law enforcement is good for America. "Forfeiture of the money involved in the offense would compensate for the investigative and enforcement expenses of the Customs Service," wrote Justice Anthony Kennedy. (In other words, if the government decides to spy on you, it can seize your possessions to cover the cost of spying on you.) Kennedy lamented that in this case, "the majority in effect approves a meager $15,000 forfeiture." Kennedy and the other dissenters apparently never considered whether the government deserved a cent of the man's money.