by Beth A. Colgan
Abstract
In 1998, the Supreme Court issued its opinion in United States v. Bajakajian, in which it held that a criminal forfeiture constituted an excessive fine in violation of the Eighth Amendment’s Excessive Fines Clause. The opinion contained a discussion of early in rem customs forfeitures, imposed when mariners engaged in fraudulent behavior to avoid paying taxes on cargo brought to shore. Those customs forfeitures were based on a legal fiction that property tainted by crime—the cargo or even the ship—was the offender, allowing the forfeiture of that property to be processed civilly. The Bajakajian Court declared that, unlike the modern criminal forfeiture at issue, those early in rem forfeitures would have historically been understood to be nonpunitive because they were based on the guilty property fiction, were processed civilly, and could serve to remediate the government’s tax losses—and thus would not have been “fines” within the Clause’s ambit.
Bajakajian, and the principles on which it stands, have important implications for the Excessive Fines Clause and beyond. It has led to a lack of uniform treatment in the lower courts, leaving the question of whether the Excessive Fines Clause provides protection against forfeitures, as well as civil fines, tax penalties, restitution, and a panoply of administrative fees, dependent upon jurisdictional chance. Further, Bajakajian’s purported limitations on civil punishment with remedial qualities has implications for a variety of contested constitutional issues of continuing political importance, including limits on the government’s ability to target people seen as politically subversive, strip people of citizenship, and investigate presidential misconduct, as well as the role of the administrative state.
This Article tests the integrity of the Court’s determination that early in rem forfeitures were nonpunitive. It does so by mining eighteenth and nineteenth century legal texts, focusing primarily on federal and state caselaw. Caution must be taken with any historical analysis, particularly one spanning a significant period of time—in this case, the century and a half covered by the few sources upon which the Bajakajian Court relied. But with that caution in mind, this Article reveals the startling degree to which the Bajakajian Court misapprehended the records it did review and ignored substantial evidence—including evidence found in the Court’s own early opinions—that supports the conclusion that in rem forfeitures were historically understood to constitute punishment. This Article, therefore, provides grounds for courts to take up anew decisions that have unduly restricted the scope of the Excessive Fines Clause, with implications for other constitutional issues in which the scope of what constitutes punishment is in play.