JUSTICES STRIKE DOWN FORFEITURE AS EXCESSIVE

Case Involved Gas Station Owner Taking Large Amount of Undeclared Cash to
Syria

A sharply divided Supreme Court ruled yesterday that the federal government
cannot seize and keep the money of a person trying to carry funds out of
the country simply because the person failed to fill out the proper Customs
Service forms. The decision marked the first time the court had struck down
a government fine as unconstitutionally excessive, and dissenting justices
said the reasoning may jeopardize a vast range of financial penalties the
government imposes.

The case produced an unorthodox 5-to-4 voting alliance and a majority
opinion by Justice Clarence Thomas that said a punitive forfeiture is
forbidden if it is "grossly disproportional to the gravity" of the offense.

The case was originally brought by Hosep Bajakajian, a Syrian immigrant who
tried to take $357,000 out of the country without having declared it on a
form required of anyone who moves more than $10,000 into or out of the
United States. He also lied about the amount of money he had with him when
questioned by a customs inspector.

In a day of varied court business as the justices finish the last days of
the term, they also ruled 5 to 4 that illegally seized evidence can be used
against defendants in parole hearings in ways that it cannot be used
against them in trials. Dissenting justices in Pennsylvania Board of
Probation and Parole v. Scott said the ruling undercut the Fourth Amendment
protection against unreasonable searches and seizures.

Forfeiture laws, largely used in the government's war on drug traffickers,
have become a controversial tactic as critics complain the government is
wielding its power without safeguards and seiz ing money and property from
people whose conduct does not always warrant drastic action.

The Eighth Amendment says "excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted." But
the high court had never made clear when a fine is excessive and lower
courts have been divided. Some believed they should consider the amount of
money seized in relation to the crime, while others thought it enough to
determine that the money was used in the crime and, thus, was tainted by
the wrongdoing.

Bajakajian, a Hollywood gas station owner, was arrested in 1994 at the Los
Angeles airport for not disclosing that he was carrying $357,000 in cash as
he headed to Syria to pay a business debt. His lawyer attributed his
violation to "cultural differences," saying Bajakajian was afraid of
government and its procedures. Bajakajian was fined $5,000, subjected to
three years' probation, and the federal government additionally sought to
keep all the money he had concealed in his luggage.

A trial judge rejected the government's attempt to keep the $357,000,
saying the money "wasn't drug money, wasn't gambling money, wasn't stolen
money; this wasn't money that was being laundered for any reason."

The court said only $15,000 of the total should be forfeited because
anything larger would be an unconstitutionally excessive punishment on
Bajakajian. The U.S. Court of Appeals for the 9th Circuit also declined to
allow the government the larger amount but said that money that is legally
possessed, as in this case, could never be forfeited because it cannot be
considered the "instrumentality" of a crime.

Yesterday the Supreme Court affirmed that decision, finding the forfeiture
provision unconstitutional. In his opinion for the majority, Thomas said
the Eighth Amendment requires that a forfeiture be proportional to the
gravity of the offense. He rejected the Justice Department's argument that
courts should look primarily at whether the property was significantly invo
lved in the offense.

Thomas said the law was designed for money launderers, drug traffickers and
tax evaders -- a class Bajakajian doesn't fit. Thomas added that the harm
Bajakajian caused was minimal. "Failure to report his currency affected
only one party, the government, and in a relatively minor way," Thomas
wrote. "There was no fraud on the United States, and [Bajakajian] caused no
loss" to the U.S. Treasury.

Thomas's opinion in United States v. Bajakajian was joined by the more
liberal justices: John Paul Stevens, David H. Souter, Ruth Bader Ginsburg
and Stephen G. Breyer.

© Copyright 1998 The Washington Post Company

Checked-by: Richard Lake