Forfeiture Cases Are Daunting
A forfeiture case can be daunting for litigants, especially considering the fact that the standard of proof for the government to take people’s property is much less than that in a criminal proceeding. Thankfully, in a groundbreaking new opinion in the area of forfeiture cases, the Pennsylvania Supreme Court has handed down an opinion in two companion cases, Commonwealth v. 1997 Chevrolet and Contents Seized from James Young, 29 EAP 2015, and Commonwealth v. The Real Property and Improvements Known as 416 S. 62nd Street, 30 EAP 2015. In this opinion, the Court has now defined standards for trial courts to employ in Excessive Fine Clause challenges to civil in rem forfeiture cases.
The Pennsylvania Supreme Court’s New Opinion
Probably the most important language in the opinion, summarizing the standard for Excessive Fine challenges, states:
In conclusion, we hold that, for purposes of an Excessive Fines Clause challenge to a civil in rem forfeiture, a court must first assess whether the property sought to be forfeited is an instrumentality of the underlying offense. If the property is not found to be an instrumentality of the criminal conduct, the inquiry is dispositive and ends, and the forfeiture is unconstitutional. If the property is an instrumentality, the inquiry continues to the proportionality prong and an assessment of whether the value of the property sought to be forfeited is grossly disproportional to the gravity of the underlying offense. If it is grossly disproportional, the forfeiture is unconstitutional. As discussed in detail above, and summarized below, we find various factors to be relevant in resolving an excessive fines challenge to a civil in rem forfeiture. We caution, however that these factors are not meant to be exhaustive, and that additional factors, when relevant, may be considered by a court, depending upon the particular circumstances at issue.
In making the instrumentality determination, a court should consider, inter alia:
(1) whether the property was uniquely important to the success of the illegal activity;
(2) whether the use of the property was deliberate and planned or was merely incidental and fortuitous to the illegal enterprise;
(3) whether the illegal use of the property was an isolated event or repeated;
(4) whether the purpose of acquiring, maintaining or using the property was to carry out the offense;
(5) whether the illegal use of the property was extensive spatially and/or temporally; and (6) whether the property is divisible with respect to the subject of forfeiture, allowing forfeiture of only that discrete property which has a significant relationship to the underlying offense.
The factors, among others, to be considered in assessing the value of the property are:
(1) the fair market value of the property;
(2) the subjective value of the property taking into account whether the property is a family residence or if the property is essential to the owner’s livelihood; (3) the harm forfeiture would bring to the owner or innocent third parties; and (4) whether the forfeiture would deprive the property owner of his or her livelihood.
The factors to be considered in gauging the gravity of the offense include:
(1) the nature of the underlying offense;
(2) the relation of the violation of the offense to any other illegal activity and whether the offender fit into the class of persons for whom the offense was designed should be considered;
(3) the maximum authorized penalty as compared to the actual penalty imposed upon the criminal offender;
(4) the regularity of the criminal conduct — whether the illegal acts were isolated or frequent, constituting a pattern of misbehavior;
(5) the actual harm resulting from the crime charged, beyond a generalized harm to society; and
(6) the culpability of the property owner.
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