TJOFLAT, Chief Judge.
The defendant in this in rem proceeding is a parcel of real property located on Hall Street in Montgomery, Alabama. It is about 500 feet from the outdoor basketball courts of Houston Hills Junior High School and one fifth of a mile from the front door of the school itself. The entire property, which is valued at approximately $65,000, is owned by George Jenkins. There is one building on the property. In 1991, Jenkins ran a grocery store from one portion of the building and rented out the other portion.
In August 1991, an agent of the local district attorney's drug task force received a telephone call from a confidential informant who notified him that drugs were being sold at the grocery store. The task force then conducted two "controlled buys" using the informant. After each controlled buy, the informant produced a clear one-inch square bag, which contained a white, powder-like substance, and stated that the individual who had sold him the bag had pulled it from his pants pocket. Each time, the agents fieldtested the substance, identified it as one half of a gram of cocaine, and destroyed it.
On the strength of the information acquired during the two controlled buys, agents secured a warrant that authorized a search of the grocery store and any vehicle on the premises. The search was conducted on August 30. When they entered the store, the agents found George Jenkins standing behind a counter and cash register. In his front right pants pocket, the agents found forty-five dollars and seven plastic one-inch square bags containing a white, powder-like substance. They also found $800 in his wallet, as well as $108 and some .38 caliber bullets on a shelf behind the counter. In a Chevrolet Blazer owned by Jenkins and parked on the premises, the agents found three hand-rolled cigarettes and a .38 caliber pistol. Subsequent laboratory tests indicated that the bags taken from Jenkins's pocket contained a total of three grams of cocaine and that the cigarettes contained six tenths of a gram of marijuana.
In September 1992, Jenkins pled guilty in state court to the unlawful possession of cocaine, a felony under Alabama law, which carries a maximum sentence of ten years in prison and a maximum fine of $5000. A charge of unlawful possession of marijuana was dropped as part of the plea agreement.
In October 1991, the United States filed this civil action in rem for forfeiture of the entire parcel of real property, pursuant to section 511(a)(7) of the Controlled Substances Act, Pub.L. No. 91-513, tit. II, 84 Stat. 1236, 1276 (1970), 21 U.S.C. § 881(a)(7) (1994), which authorizes the forfeiture of real property "which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of a violation of [the Controlled Substances Act] punishable by more than one year's imprisonment...."
Jenkins appeals, contending that: (1) the underlying offense was not "punishable by more than one year's imprisonment," as required by statute, and (2) the forfeiture constitutes an "excessive fine" in violation of the Eighth Amendment.
Generally speaking, civil forfeiture is the forfeiture of real or personal property to the state after that property is shown to be linked to a violation of the state's laws. As such, it has a long and varied history. The specific provision before the court today retains some of the characteristics of its antecedents — and those similarities will dispose of Jenkins's first argument. In one significant way, however, the provision departs radically from its precedents. The nature of this departure leads us to disagree with our sister circuit courts about the appropriate analysis of civil forfeiture under the Excessive Fines Clause, and it guides our disposition of Jenkins's second claim.
Some trace the roots of civil forfeiture to the Old Testament. See Exodus 21:28 (King James) ("If an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit.")
Of these three, only statutory forfeiture became part of the American legal tradition. Austin, 509 U.S. at ___, 113 S.Ct. at 2807. Indeed, during the colonial period, while adoption and use of forfeiture varied from colony to colony, every colony enacted some form of statutory forfeiture. Matthew Q. Giffuni, Civil Forfeiture and the Excessive Fines Clause Following Austin v. United States, 31 Crim.L.Bull. 502, 506 (1995). So, eventually, did the new federal government. In 1789, the First Congress authorized forfeiture of ships (and their cargoes) that were involved in customs offenses. Act of July 31, 1789, § 12, 1 Stat. 39; see also Act of Aug. 4, 1790, §§ 13, 22, 27, 28, 1 Stat. 157, 161, 163; Austin, 509 U.S. at ___, 113 S.Ct. at 2807. In the years since, Congress has authorized forfeiture to aid enforcement of many statutory schemes, including the navigation laws, food and drug laws, copyright laws, and antitrust laws.
In 1970, Congress enacted the Controlled Substances Act as part of the Comprehensive Drug Abuse Prevention and Control Act and in it authorized civil forfeiture. See Controlled Substances Act § 511, 84 Stat. at 1276, 21 U.S.C. § 881. In 1984, Congress added the provision under which the Government proceeded in this case. See Comprehensive Forfeiture Act of 1984, Pub.L. No. 98-473, tit. II, ch. III, § 306, 98 Stat. 2040, 2050 (amending Controlled Substances Act § 511(a), 21 U.S.C. § 881(a)). As noted, that section authorizes the forfeiture of real property used, or intended to be used, to commit, or to facilitate the commission of, a violation of the Controlled Substances Act punishable by more than one year of imprisonment.
At this juncture, Jenkins's first argument can be disposed of briefly. The Government proceeded in rem against property linked to a violation of the Controlled Substances Act. Jenkins claims that forfeiture is improper because the "underlying offense" in question is possession of three grams of cocaine (i.e., the cocaine found on his person on August 30), which is a misdemeanor punishable by "a term of imprisonment of not more than 1 year." Controlled Substances Act § 404(a), 84 Stat. at 1264, 21 U.S.C. § 844(a) (1994). To be sure, the forfeiture provision requires that the underlying drug offense be one punishable by more than one year's imprisonment. But Jenkins has misidentified the underlying offense. The government premised the forfeiture on possession with the intent to distribute, aggravated in this instance by the property's proximity to a junior high school. The minimum imprisonment for this felony is fifteen months in prison.
Civil forfeiture under the Controlled Substances Act, however, diverges from its roots in a very fundamental way. Specifically, Congress has provided an "innocent owner" defense: "[N]o property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner." 21 U.S.C. § 881(a)(7). There was no innocentowner defense at common law, although there was some discretion to mitigate based on the moral innocence of the party incurring the penalty. See Calero-Toledo, 416 U.S. at 683 n. 27, 94 S.Ct. at 2091 n. 27. The innocent-owner defense included in section 881(a)(7) strongly suggests that Congress intended to punish persons intentionally involved in drug trafficking. See Austin, 509 U.S. at ___-___, 113 S.Ct. at 2810-11 ("These exemptions serve to focus the provisions on the culpability of the owner in a way that makes them look more like punishment, not less."). The legislative history of the section confirms the punitive nature of the provisions. Id. at ___-___, 113 S.Ct. at 2811, citing S.Rep. No. 98-225, 98th Cong.,
It has been established that the Excessive Fines Clause of the Eighth Amendment applies to in rem civil forfeiture proceedings under 21 U.S.C. § 881(a)(7). See Austin, 509 U.S. at ___, 113 S.Ct. at 2812. The Austin Court declined, however, to articulate a test for determining whether a particular forfeiture violates the Excessive Fines Clause. See id. ("Prudence dictates that we allow the lower courts to consider that question in the first instance.") In his concurring opinion, Justice Scalia contended that the appropriate test is an "instrumentality" test that focuses on "the relationship of the property to the offense" or, in other words, a test that asks, "Was [this relationship] close enough to render the property, under traditional standards, `guilty' and hence forfeitable?" Id. at ___, 113 S.Ct. at 2815 (Scalia, J., concurring in part and concurring in the judgment). The majority simply responded that it would "not rule out the possibility that the connection between the property and the offense may be relevant ... in determining whether [a] forfeiture ... [is] excessive." Id. at ___ n. 15, 113 S.Ct. at 2812 n. 15.
The tests laid out by lower courts since Austin generally fall into two categories. Some have followed Justice Scalia's suggestion and applied an instrumentality test, focusing on the use of the property in the commission of the illegal act, asserting that this test is the only way to preserve the "guilty property fiction" of traditional in rem forfeiture. See, e.g., United States v. Chandler, 36 F.3d 358 (4th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1792, 131 L.Ed.2d 721 (1995). A few have applied a proportionality test, the core of which is a comparison of the severity of the forfeiture with the seriousness of the crime. See, e.g., United States v. One Parcel of Real Property Located at 461 Shelby County Rd. 361, 857 F.Supp. 935 (N.D.Ala.1994). Many, including the district court in this case, have combined the two approaches in some fashion. See, e.g., United States v. Premises Known as Rural Route No. 1 Box 224, 14 F.3d 864 (3d Cir.1994); United States v. Real Property Located in El Dorado County at 6380 Little Canyon Rd., 59 F.3d 974 (9th Cir.1995). See generally Sarah N. Welling & Medrith Lee Hager, Defining Excessiveness: Applying the Eighth Amendment to Civil Forfeiture After Austin v. United States, 83 Ky.L.J. 835 (1994-1995).
Courts and commentators rejecting a proportionality test have relied heavily on what they perceive to be a retreat from proportionality review in Cruel and Unusual Punishments Clause jurisprudence.
First, the Austin Court reasoned that the Excessive Fines Clause applies because forfeiture under section 881(a)(7) "constitutes `payment to a sovereign as punishment for some offense.'" 509 U.S. at ___, 113 S.Ct. at 2812, quoting Browning-Ferris Indus. v.
Second, the Excessive Fines Clause on its face prohibits fines which are "excessive" — i.e., fines that are (in amount) just too much. And because the clause protects the individual punished, this turn of phrase necessarily implies a comparison of the amount of the fine with the acts of the individual. This is simply a logical reading of the provision in question: excessive fines are not to be imposed. See Harmelin v. Michigan, 501 U.S. 957, 967, 111 S.Ct. 2680, 2687, 115 L.Ed.2d 836 (1991) (Scalia, J. and Rehnquist, C.J.) (rejecting a proportionality review under the Cruel and Unusual Punishments Clause in part because "the drafters of the [English] Declaration of Rights did not explicitly prohibit `disproportionate' or `excessive' punishments"); see also id. at 1009, 111 S.Ct. at 2709 (White, Blackmun, and Stevens, JJ., dissenting) ("The language of the Amendment does not refer to proportionality in so many words, but it does forbid `excessive' fines, a restraint that suggests that a determination of excessiveness should be based at least in part on whether the fine imposed is disproportionate to the crime committed.").
Finally, the historical antecedents of our Excessive Fines Clause themselves required proportionality review. Magna Charta, for instance, contained several provisions regulating the amount of amercements, fines which were imposed at the discretion of the court for illegal conduct.
In sum, the principle that "fines" are not to be "excessive" (i.e., "out of proportion") was well rooted in English law when our country came of age. And of course, the Eighth Amendment "was based directly on Art. I, § 9, of the Virginia Declaration of Rights (1776), authored by George Mason. He, in turn, had adopted verbatim the language of the English Bill of Rights." Solem, 463 U.S. at 286 n. 10, 103 S.Ct. at 3007 n. 10 (both emphases added).
These observations lead to the conclusion that application of the Excessive Fines Clause to civil forfeiture under 21 U.S.C. § 881(a)(7) requires a review of the proportionality of the fine imposed.
We turn to the present case. On the one hand, the real property in question is worth approximately $65,000. Moreover, Jenkins has never been convicted of a violation of the Controlled Substances Act, and it is undisputed that the legitimate businesses that he ran off the property (i.e., his own store and renting out the other portion of the building) were his primary source of livelihood. On the other hand, Jenkins's property was forfeited on the strength of possession with the intent to distribute three grams of cocaine within five hundred feet of a junior high school. In 1991, under the United States Sentencing Commission Guidelines, this was a Level 14 offense, punishable by fifteen to twenty-one months in prison. See United States Sentencing Commission, Guidelines Manual at §§ 2D1.1, 2D1.2, 5A (1990). A Level 14 offense also results in a mandatory fine ranging from $4000 to $40,000. See id. at § 5E1.2. Furthermore, putting aside the sentencing guidelines, the totality of the circumstances underscores the seriousness of the offense. Jenkins was found with marijuana, large amounts of cash, bullets, and a .38 caliber gun, and he was quite close to a junior high school. Given a possible sentence of twenty-one months in prison and a $40,000 fine, and given the additional factors at work in this case, we conclude that forfeiture of a $65,000 piece of
The district court applied a two-step test to measure the excessiveness of the fine, a test which emphasized instrumentality analysis, but which included proportionality review. While we affirm the judgment of the district court (ordering the property forfeited to the government), we do so solely on the strength of proportionality review, which is all that the Excessive Fines Clause requires. The judgment of the district court is