Seems like the result in
1996 DodgeX-Cab is already being used to question most any forfeiture of property under ch. 59, even though the opinion seems to have the same degree of tension with the holding in
Fant that
Ursery has with
Austin and
Bajakajian. My questions are: (1) will it now take expert testimony concerning the value of the property sought to be forfeited to try these cases, and (2) how do you "value" the "gravity" of the offense? I am seeking to forfeit real property worth maybe $150,000 alleging it was used in the offense of possessing more than 4 grams of controlled substance, a second degree felony. (Exactly how real property is "used" in the commission of a criminal offense within the meaning of the statute is the subject of separate debate). The maximum direct fine for such offense is $10,000, but what is the permissible ratio between the "value" of the offense and the forfeiture "fine" for 8th amendment purposes?
Bajakajian has been pretty dormant in Texas, till now, as far as I can tell. But, I do not think it will stay that way, since the Beaumont opinion gives little real guidance concerning these issues and thus invites them to be litigated case-by-case. Plus the
Bajakajian crime involved money in itself and was thus a bit easier to evaluate. The potential harm of a drug overdose or addiction or health hazards associated even with a single dose of PG 1 substance seems pretty high to me, but is hard to define in dollars and cents beyond the street value of the poison itself.
Another issue in my case is whether the value of a lienholder's interest (protected under art. 59.02(c)) is deducted in determining the amount of the "fine". Certainly seems like it would be, but the defendant, of course, is claiming otherwise. Since the Texas statute requires no conviction, does the 8th Amendment really even apply? In my case the defendant has admitted committing the criminal offense, but will not be prosecuted for it (in state court). I am having trouble understanding how he can rely on the 8th amendment, yet an innocent owner could not.
Bennis v. Michigan. I take the current muddled state of the law to be that a civil remedial forfeiture becomes a "payment to a sovereign as punishment for some offense" whenever (but only when) it can be characterized as excessive, and that no one can predict what "excessive" means. Furthermore, of course, forfeitures are never so punitive that they constitute punishment for double jeopardy purposes. Anyone have some insight? Trying to understand this jurisprudence is punishing me with a headache.
