Austin v. United States, 509 U.S. 602 (1993), argued 20 Apr. 1993, decided 28 June 1993 by vote of 9 to 0; Blackmun for the Court, Scalia and Kennedy concurring. The use of civil forfeiture to seize the
property of individuals involved in the illicit drug trade was one of law enforcement's most potent weapons. Between 1985 and 1993, for example, governments at all levels had taken more than $3 billion in cash and property. Although tied to criminal activity, such as the possession of illegal drugs, forfeiture is a civil claim essentially brought against an individual's property rather than against the individual engaged in wrongdoing. Under such circumstances, many of the due process safeguards extended to either the suspect or convicted criminal do not apply.
Forfeitures stirred widespread unfavorable press and media attention, with much of it focused on innocent owners of property who had lost it to the government. There was also concern about whether the punishment fitted the crime, notably in cases in which small‐time drug users and sellers lost houses and other valuable property out of all proportion to the crimes they had committed. Embedded in these actions, moreover, was the question of whether the
Eighth Amendment's prohibition against excessive fines and
cruel and unusual punishment applied to the civil forfeitures in drug cases and not just to criminal proceedings. Proponents of an active forfeiture policy argued that the Eighth Amendment applied only against criminal actions and that, in any case, civil forfeitures were “remedial” rather than punitive measures. By the early 1990s an unusual coalition of critics of civil forfeitures had developed, with conservative Republican representative Henry Hyde, of Illinois, and liberal Democrat John Conyers, of Detroit, joining with the
American Civil Liberties Union to demand limits on the powers of government to seize property.
Austin emerged as a pivotal case in the development of forfeiture law. Richard Lyle Austin was a convicted cocaine dealer from Garretson, South Dakota. Austin in 1990 pleaded guilty in state court to one count of possessing cocaine with intent to distribute. Shortly thereafter the United States government filed an action against Austin's property, notably his mobile home, worth about $3,000, and his auto body shop, worth about $33,000. Austin claimed that the forfeiture was excessive given the nature of his crime, and he asserted the Eighth Amendment's protection against excessive fines. The federal district court in South Dakota and the United States Court of Appeals for the Eighth Circuit sustained the government's action, but in the case of the latter it did so in remarkably guarded language. The government had claimed that it could seize any property regardless of an individual's past criminal record or the scope of the crime committed. “We are troubled by the Government's view,” the Circuit Court responded, “that any property, whether it be a hobo's hovel or the Empire State Building, can be seized by the government because the owner … engaged in a single drug transaction” (964 F. 2d 818[1992]). This extraordinary level of skepticism by the appeals court almost certainly explains why the Supreme Court decided, over the strong opposition of the Department of Justice, to hear
Austin.
Justice Harry
Blackmun's historically rooted opinion sharply limited the federal government's power to seize homes and businesses used in illegal drug trafficking. Blackmun concluded that the Eighth Amendment did apply to property forfeited in civil proceedings and was not limited to criminal cases. The test to determine whether the amendment applied, Blackmun concluded, was whether the forfeiture amounted to a monetary punishment. He rejected the government's position that forfeiture was merely a remedy and not a punishment. The exact scope of that test, however, was the business of the lower courts and not of the Supreme Court. Hence the justices in
Austin declined to provide specific guidance about whether or not innocence should be considered and what guidelines would be appropriate to determine whether the Eighth Amendment had been violated. In a concurring opinion, Justice Antonin
Scalia insisted that the measure of a forfeiture's excessiveness should be the relationship between the seized property and the offense. Justice Anthony M.
Kennedy also concurred, raising doubts about the soundness of Blackmun's historical analysis of the Eighth Amendment. In the same term, the justices, this time in a six‐member plurality opinion, decided
United States v. Parcel of Land (1993), holding that title to property acquired from the proceeds of crime does not automatically belong to the government.
Austin was an important constitutional milestone in the growing although hardly complete limitation by the Court on the power of government to seize property. The justices continued to accept the constitutionality of the practice and the wisdom of the policy underpinning forfeiture, as their opinion in
Bennis v. Michigan (1996) made clear. Still, Blackmun's opinion in
Austin was the first significant hedge on one of the government's toughest yet most controversial weapons in the war on drugs.
Kermit L. Hall
