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- Title
GROSSLY DISPROPORTIONAL TO WHOSE OFFENSE? WHY THE (MIS) APPLICATION OF CONSTITUTIONAL JURISPRUDENCE ON PROCEEDS FORFEITURE MATTERS.
- Authors
Bersinger, Amanda Seals
- Abstract
To pass constitutional muster, fines-of which punitive - forfeitures are one type-must not be grossly disproportional to the gravity of the offense from which they arise. Currently, the United States Courts of Appeals exhibit a split in their treatment of forfeiture of proceeds acquired incident to a criminal enterprise. A majority of courts to address the issue have held that proceeds forfeitures are not punitive fines and thus escape constitutional scrutiny. Other courts, including the Fourth Circuit in the recent case United States v. Jalaram, Inc., have concluded that proceeds forfeiture, like that of instrumentalities of a crime, is punitive and therefore subject to constitutional analysis. This Note argues that the conclusion that proceeds forfeiture is proportional has compelled, in some courts, a misstated conclusion that it is also nonpunitive and therefore beyond the reaches of the Eighth Amendment's Excessive Fines Clause. Courts finding proceeds forfeitures necessarily nonpunitive because they are proportional conflate two conceptually separate constitutional requirements: that punitive forfeitures be subject to the Excessive Fines Clause and that, in accordance with that Clause, forfeitures not be grossly disproportional to the offense. In most cases, this imprecise application of Eighth Amendment jurisprudence will be inconsequential. However, this Note illustrates the necessity of the two-prong approach in cases of joint and several liability, where the misapplication could have grave consequences.
- Subjects
UNITED States; ACTIONS &; defenses (Law); EXCESSIVE fines (Constitutional law); JURISPRUDENCE; CONSTITUTIONAL law; FORFEITURE; UNITED States. Court of Appeals (4th Circuit)
- Publication
Georgia Law Review, 2011, Vol 45, Issue 3, p841
- ISSN
0016-8300
- Publication type
Article