I've read the 2004 posts on the subject of Excessive Fines, 8th Amendment and Texas forfeitures. Haven't seen anything else. How are some of you approaching these cases in view of Bajakajian and Dodge X-Cab? I'm going to trial on a $16,000 vehicle after the owner was convicted of 3rd degree possession of meth in the vehicle. I've read all the pertinent cases and have the same questions as Martin Peterson had in the '04 posts. Still don't know how to convince my judge that this is not an "excessive fine" because I don't know how to assign a value to the gravity of the offense.

I'd be most appreciative of any of your thoughts and/or suggestions. Thanks.

1992 BMW VIN WBABF4313NEK00963/Brandon Lee Thompson v. State
Not Reported in S.W.3d, 2007 WL 2608364
Tex.App.-San Antonio,2007.
September 12, 2007 (Approx. 2 pages)

Thompson contends that forfeiture of his car violates the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. The Eighth Amendment, which is applicable to the states under the Due Process Clause of the Fourteenth Amendment, states: �Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.� See U.S. Const. amend. VIII; Robinson v. California, 370 U.S. 660, 675, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). A forfeiture is a �fine� under the Eighth Amendment if it constitutes punishment for an offense. See United States v. Bajakajian, 524 U.S. 321, 327-28, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998).


Assuming, without deciding, that the forfeiture of Thompson's car constitutes punishment for his offense and is thus a �fine� under the Eighth Amendment, we consider whether the forfeiture of the car violated the Eighth Amendment's prohibition on excessive fines. Thompson argues that a test set forth by the United States Supreme Court and applied by a Texas appeals court demonstrates that the forfeiture of his car violated the Excessive Fines Clause. See Bajakajian, 524 U.S. at 337-39; One Car, 1996 Dodge X-Cab Truck White in Color 5YC-T17 VIN 3B7HC13Z5TG163723 v. State, 122 S.W.3d 422, 427-28 (Tex.App.-Beaumont 2003, no pet.). In Bajakajian, the defendant pleaded guilty to violating a federal statute that prohibited people from carrying more than $10,000 out of the country without reporting it. 524 U.S. at 325. The government sought forfeiture of the entire amount of cash, $357,144, carried by the defendant. Id. The U.S. Supreme Court held that forfeiture of the entire amount of cash violated the Excessive Fines Clause. Id . at 337. In doing so, the Court adopted a �gross disproportionality� standard, which held unconstitutional any forfeitures that were �grossly disproportional� to the gravity of the defendant's offense. Id. In determining whether a forfeiture was �grossly disproportional,� the Court considered: (1) the nature of the offense; (2) the relationship of the offense to other illegal activities; (3) whether a defendant was one of the class of persons addressed by the forfeiture statute; (4) the maximum sentence and fine recommended or permitted for the offense; and (5) the harm caused by the offense. Id. at 337-39. We review a proportionality determination de novo. Id. at 336.


*2 Thompson cites One Car in arguing that the forfeiture of his car was grossly disproportional to the gravity of his offense. In One Car, the appeals court held that forfeiture of the defendant's $11,000 truck for possession of a trace amount of methamphetamine violated the Excessive Fines Clause. 122 S.W.3d at 428. However, One Car is distinguishable from this case for two reasons: (1) the offense in this case is more serious than that in One Car; and (2) the value of the forfeited car in this case is substantially lower than that in One Car. First, the defendant in One Car was arrested for possession of �an extremely small amount� of methamphetamine that could not be weighed or valued. Id. at 423. The defendant pleaded guilty to possession of a controlled substance, a state-jail felony carrying a maximum prison sentence of two years and a maximum fine of $10,000. See Id.; Tex. Health & Safety Code Ann. � 481.115(b) (Vernon 2003); Tex. Penal Code Ann. � 12.35 (Vernon 2003). In contrast, Thompson pleaded guilty to possession of two grams of cocaine, a third-degree felony carrying a prison sentence of between two and ten years and a maximum fine of $10,000. See Tex. Health & Safety Code Ann. � 481.115(c) (Vernon 2003); Tex. Penal Code Ann . � 12.34 (Vernon 2003). Second, the defendant's truck in One Car was valued at $11,000, which is more than the amount authorized as a fine for her offense, whereas Thompson's car is valued at $3,000, far less than the maximum fine authorized for his offense.


We now turn to the remaining Bajakajian factors as they apply to this case. With respect to the relationship of the offense to other illegal activities, there is nothing in the record to show that Thompson's possession of cocaine was related to any other illegal activity. Regarding the class of persons addressed by Chapter 59, Thompson is within the class because he was convicted of possessing a controlled substance. See Tex. Health & Safety Code Ann. � 481.115(c) (Vernon 2003); Tex.Code Crim. Proc. Ann. art. 59.01(2)(B)(i); 59.02(a) (Vernon 2006). Finally, regarding the harm caused by the offense, we have stated that �[i]t is common knowledge that possession, use, and distribution of illegal drugs represents one of the greatest problems affecting the health and welfare of our population. Studies clearly demonstrate the direct nexus between illegal drugs and crimes of violence.� Thomas v. State, 916 S.W.2d 578, 583 (Tex.App.-San Antonio 1996, no writ); see also Robinson v. State, 906 S.W.2d 534, 537 (Tex.App.-Tyler 1995, no writ) (�Frequently, drug activity is also the contributing factor of the �necessary� commission of other crimes by the individual to support a habit. Our entire society is negatively affected by criminal drug activities.�); Jackson v. State, 807 S.W.2d 387, 390 (Tex.App.-Houston [14th Dist.] 1991, writ ref'd) (�The prohibition of possession of even unusable quantities of cocaine reflects the concern of the legislature with drug abuse in our society.�). Thus, Texas courts view the possession of cocaine as inherently harmful to society.


*3 Considering all of the factors set forth in Bajakajian, we hold that the forfeiture of Thompson's $3,000 car is not grossly disproportional to the third-degree felony offense of possession of two grams of cocaine and that the forfeiture therefore does not violate the Excessive Fines Clause of the Eighth Amendment. Bajakajian, 524 U.S. at 337-40.


Vasquez v. State
Not Reported in S.W.3d, 2006 WL 2506965
Tex.App.-Houston [1 Dist.],2006.
August 31, 2006 (Approx. 5 pages)


Excessive Fines Clause


In his third point of error, appellant argues that the trial court violated the Eighth Amendment of the United States Constitution prohibiting excessive fines when it entered a judgment of forfeiture of $8,000.00 of the $8,250.00 seized as contraband. We disagree.

�Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.� U.S. Const. amend. VIII. The Eighth Amendment is applicable to the states through the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 675, 82 S.Ct. 1417, 1425 (1962). The United States Supreme Court addressed the applicability of the Excessive Fines Clause to federal forfeiture statutes in Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801(1993).


Once it has been established that the property in question is contraband, a court must then apply a �proportionality� test as set forth in United States v. Bajakajian, 524 U.S. 321, 334, 118 S.Ct. 2028, 2036 (1998). Bajakajian pertained to a forfeiture of currency under a federal statute making it a crime to carry more than $10,000 in currency out of the country without reporting it. Id. Respondent in that case, pleaded guilty to the criminal violation of failure to report. 524 U.S. at 325, 118 S.Ct. At 2032. The government also sought forfeiture of the entire amount of cash, $357,144, carried by respondent. Id. The district court ruled that, under the statute, the entire sum was subject to forfeiture, but declined to enter such a judgment, holding that such a result would violate the Excessive Fines Clause. 524 U.S. at 326-27, 118 S.Ct. at 2033. The Ninth Circuit affirmed. Id. The Supreme Court, reversing, held that: (1) forfeitures, i.e., payments in kind, are �fines� subject to the limitations of the Eighth Amendment if they constitute punishment for an offense; (2) forfeiture of currency under the subject statute is a form of punishment; it is an additional sanction available when imposing a sentence for violation of the criminal statute imposed at the culmination of criminal proceedings and cannot be imposed on an �innocent owner�; and (3) modern statutory forfeiture provisions are �fines� for Eighth Amendment purposes, if they constitute, even in part, punishment. 524 U.S. at 333-34, 118 S.Ct. at 2036. Therefore, the forfeiture of currency was subject to the Excessive Fines Clause. 524 U.S. at 334, 118 S.Ct. at 2036.


*6 In determining whether the fine is excessive, a court must consider proportionality, i.e., the amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. Id. In determining whether the forfeiture of the entire sum was �excessive� or �grossly disproportional,� the Court examined (1) the nature of the offense (essentially, a reporting violation); (2) the relationship of the offense to other illegal activities (none); (3) the class of offenders addressed by the forfeiture (respondents did not fit the class); and (4) the harm caused (little or none). Id. The Court held that the forfeiture of the entire sum of money, $357,144, bore no correlation to any damages sustained by society or to the cost of enforcing the law. Id.


Texas courts have held that Chapter 59 forfeitures constitute punishment for purposes of the Excessive Fines Clause. See Tex.Code Crim. Proc. Ann. arts. 59.01(2)(A)(i)-(iii), 59.01(2)(B)(i)-(iii) (Vernon Supp.2005) (seizure of contraband authorized; contraband defined in terms of violations of, inter alia, the Penal and Health and Safety Codes); see also One Car, 1996 Dodge X-Cab Truck White In Color 5YC-T17 VIN 3B7HC13Z5TG163723 v. State, 122 S.W.3d 422, 427 (Tex.App.-Beaumont 2003, no pet.) (applying the analysis of Austin and Bajakajian to find that Chapter 59 forfeiture is closely tied to the commission of underlying crimes.).


Having determined that Chapter 59 is subject to the Excessive Fines Clause, we then apply the Supreme Court's proportionality standard de novo to the evidence surrounding the State's forfeiture of the $8,000.00 to determine if such forfeiture is unconstitutionally excessive. See Bajakajian, 524 U.S. at 335-36, 118 S.Ct. at 2036-37. Here, as to the first two factors, the nature of the offense and the relationship of the offense to other illegal activities, appellant was arrested for possession of cocaine, which is a state jail felony, carrying a maximum sentence of two years and a maximum fine not exceeding $10,000. See Tex. Health & Safety Code Ann. � 481.115; Tex. Pen.Code Ann. � 12.35(a)-(b) (Vernon Supp.2005). Under the third factor, appellant fits the class of offender addressed by the forfeiture because he was in possession of the cocaine. Finally, as to the fourth factor, the harm caused was slight considering that the amount of cocaine involved in this case was an extremely small amount. Nevertheless, because appellant's fine could reach $10,000.00 for possession of cocaine in this case, we hold that forfeiture of $8,000.00 is not grossly disproportional to the offense under Bajakajian. We further hold that the forfeiture in this case does not violate the Excessive Fines Clause of the Eighth Amendment. Bajakajian, 524 U.S. at 337-41, 118 S.Ct. at 2038-39.


That being said - don't be fooled into limiting your Chapter 59 Seizure solely to the offense the defendant was indicted for. To the extent that you have extraneous crimes (i.e. dope deliveries) in that vehicle, make sure you rely on them as well. I think all of those go to the gravity of the offense. We have a real property seizure here on a marijuana grow house and the 15 acres it sits on. The maximum fine for the amount of marijuana seized at the time of the search warrant is far outweighed by the value of the home and property. However, we are relying on the fact that we can establish this was a grow house for a period of years.

When the excessive fines clause is raised as a defense on an automobile forfeiture where the auto is worth more than $10,000, I have settled the asset forfeiture case for a cash amount paid by the owner and then returned the vehicle to the owner.

Is that what most of you are doing? In other words, if the dope is found in a vehicle that is valued in excess of the maximum fine for the offense, as a matter of policy are we trying to settle for some amount in an agreed judgment? (Sorry, as a fairly new DA, I'm still in the learning curve.)

It depends on whether the defendant raises the issue. Some of the cases are default judgments and the issue never comes up. It all depends.

I see. However, our judge is indicating he'll raise it sua sponte -- in other words, he's going to do the excessive fines analysis on every vehicle case (unclear whether proceeds require the analysis). Lucky us.

So Michael, how did it turn out for you?

Did the dealers get their cars back?

We settled.