If ever one needed evidence that the nation’s forfeiture laws are in desperate need of reform, yesterday’s case, U.S. v. Bajakajian, should provide it. On June 9, 1994, Hosep Bajakajian and his wife, immigrants from Syria, were waiting with their two daughters at the Los Angeles International Airport to board a flight to Cyprus when U.S. Customs agents, using trained dogs, discovered $230,000 in cash in their checked luggage. An agent approached the Bajakajians, informing them that they were required to report any money they were taking out of the country in excess of $10,000. Coming from a culture in which government agents often seize money on the spot, for their personal use, Mr. Bajakajian told the agent that he had $8,000 and his wife had $7,000. A search by the agents turned up a total of $357,144.
The money had been earned legally through Mr. Bajakajian’s gas‐station business and was meant for repaying relatives who had helped him get started. Nevertheless, the government pursued Mr. Bajakajian, who pleaded guilty to trying to transport the money outside the U.S. without filing a report. The government also sought forfeiture of the entire $357,144, but a trial judge ruled that a forfeiture of more than $15,000 would be unconstitutional under the Excessive Fines Clause. The government wanted every last dollar, so it appealed all the way to the Supreme Court.
Under the forfeiture statute, a court imposing a sentence on someone found guilty of failing to report, as Mr. Bajakajian was, “shall order that the person forfeit to the United States any property, real or personal, involved in such offense.” Although vague criminal statutes are supposed to be construed against the government, rarely does that happen when the issue is forfeiture.
There are three basic rationales for forfeiture: contraband, ill‐gotten goods and “facilitation.” In most cases, the first two raise no problems: Few would object when counterfeit cash or the proceeds of a robbery are forfeited.
But what is meant by property that “facilitates” a crime? It means that if you take back a second mortgage when you sell your house, and the buyer uses the house for prostitution, you lose your mortgage when the government seizes the home, for the house “facilitated” the crime. It means that if someone hires you and your charter jet to transport drug money, unbeknownst to you, you lose your jet, since it was an “instrument” of crime.
Those examples, taken from real cases, have a thousand variations all across this country, and as many tragic stories behind them. Yet the courts have done nothing about it because, as Chief Justice William Rehnquist put it in a 1995 case, the law is “too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced.”
Two members of the Ninth U.S. Circuit Court of Appeals, in ruling for Mr. Bajakajian, found that the $357,144 was not the “instrumentality” of the crime. “The crime is the withholding of information, not the possession or the transportation of the money,” the judges found. Yesterday, a majority of the Supreme Court agreed.
What is perhaps most interesting is not the uncommon presence of Justice Thomas among the court’s liberals but the approach he brought to the task before him. Bajakajian fell not on the civil side of forfeiture law, where so much of the mischief today takes place, but on the criminal side. In criminal‐forfeiture cases, the government cannot simply seize property on a mere probable cause—showing that it may have been “involved” in a crime. Rather, the government must find the owner guilty of a crime before his property can be forfeited. That means that forfeiture is a form of “punishment,” so that the Excessive Fines Clause comes to the fore, at least in principle.
But Bajakajian was the first case in the court’s history striking down a fine as “excessive” under the Eighth Amendment. Finding no text or history precisely on point, Justice Thomas drew from the Cruel and Unusual Punishments side of the Eighth Amendment to conclude, by analogy, that “a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the defendant’s offense.”
But why does the judiciary, rather than the legislature, get to make that call? The legislature does make the call about appropriate punishments, Justice Thomas says. Moreover, “any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise,” he adds. But that doesn’t mean that the court’s deference must be total. When the fine or punishment is “grossly disproportionate,” the court must step in.
Judicial activism? No. But neither is it judicial restraint of a kind that ignores the plain language of the Constitution. Yet Justice Anthony Kennedy, writing yesterday for the four conservative dissenters, was perplexed, to put it charitably. Repeatedly likening Mr. Bajakajian’s failure to declare the amount of currency he was taking out of the country — his only crime — to “smuggling,” Justice Kennedy went on to address the difficulty of proving money laundering — as if that were at issue here. The government “was unable to adduce affirmative proof of another crime in this particular case,” Justice Kennedy noted, adding that “because of the problems of individual proof, Congress found it necessary to enact a blanket punishment.” Thus, whatever the amount—$300,000 or $3 million — it is all subject to forfeiture.
The reasoning here is, well, chilling. Rather than look at the Constitution, we look at the government’s problems of proof. The government could not prove that Mr. Bajakajian had not done more than fail to fill out a form — but he might have. Given that, Justice Kennedy claims, Congress is entitled to make the punishment as large as may be necessary to deter such possible crimes — no matter how many people get hurt along the way. That is deference with a passion — a passion for crime‐fighting. It is the passion that has given us the forfeiture law we have today. At the founding, fortunately, that passion was checked by a greater passion — the love of liberty and the fear of overweening government. It is a good sign that Justice Thomas has returned us to the first principles of the matter.