Justice Thomas, delivered the opinion of the Court.
Respondent Hosep Bajakajian attempted to leave the United States without reporting, as required by federal law, that he was transporting more than $10,000 in currency. Federal law also provides that a person convicted of willfully violating this reporting requirement shall forfeit to the Government "any property . . . involved in such offense." 18 U. S. C. § 982(a)(1). The question in this case is whether forfeiture of the entire $357,144 that respondent failed to declare would violate the Excessive Fines Clause of the Eighth Amendment. We hold that it would, because full forfeiture of respondent's currency would be grossly disproportional to the gravity of his offense.
On June 9, 1994, respondent, his wife, and his two daughters were waiting at Los Angeles International Airport to board a flight to Italy; their final destination was Cyprus. Using dogs trained to detect currency by its smell, customs inspectors discovered some $230,000 in cash in the Bajakajians' checked baggage. A customs inspector approached respondent and his wife and told them that they were required to report all money in excess of $10,000 in their possession or in their baggage. Respondent said that he had $8,000 and
A federal grand jury indicted respondent on three counts. Count One charged him with failing to report, as required by 31 U. S. C. § 5316(a)(1)(A),
Respondent pleaded guilty to the failure to report in Count One; the Government agreed to dismiss the false statement charge in Count Two; and respondent elected to have a bench trial on the forfeiture in Count Three. After the bench trial, the District Court found that the entire $357,144 was subject to forfeiture because it was "involved
Although § 982(a)(1) directs sentencing courts to impose full forfeiture, the District Court concluded that such forfeiture would be "extraordinarily harsh" and "grossly disproportionate to the offense in question," and that it would therefore violate the Excessive Fines Clause. Tr. 63. The court instead ordered forfeiture of $15,000, in addition to a sentence of three years of probation and a fine of $5,000——the maximum fine under the Sentencing Guidelines——because the court believed that the maximum Guidelines fine was "too little" and that a $15,000 forfeiture would "make up for what I think a reasonable fine should be." Ibid.
The United States appealed, seeking full forfeiture of respondent's currency as provided in § 982(a)(1). The Court of Appeals for the Ninth Circuit affirmed. 84 F.3d 334 (1996). Applying Circuit precedent, the court held that, to satisfy the Excessive Fines Clause, a forfeiture must fulfill two conditions: The property forfeited must be an "instrumentality" of the crime committed, and the value of the property must be proportional to the culpability of the owner. Id., at 336 (citing United States v. Real Property Located in El Dorado County, 59 F.3d 974, 982 (CA9 1995)). A majority of the panel determined that the currency was not an "instrumentality" of the crime of failure to report because "`[t]he crime [in a currency reporting offense] is the withholding of information, . . . not the possession or the transportation of the money.' " 84 F. 3d, at 337 (quoting United States v. $69,292
Judge Wallace concurred in the result. He viewed respondent's currency as an instrumentality of the crime because "without the currency, there can be no offense," id., at 339, and he criticized the majority for "strik[ing] down a portion of" the statute, id., at 338. He nonetheless agreed that full forfeiture would violate the Excessive Fines Clause in respondent's case, based upon the "proportionality" prong of the Ninth Circuit test. Finding no clear error in the District Court's factual findings, he concluded that the reduced forfeiture of $15,000 was proportional to respondent's culpability. Id., at 339-340.
Because the Court of Appeals' holding——that the forfeiture ordered by § 982(a)(1) was per se unconstitutional in cases of currency forfeiture——invalidated a portion of an Act of Congress, we granted certiorari. 520 U.S. 1239 (1997).
The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U. S. Const., Amdt. 8. This Court has had little occasion to interpret, and has never actually applied, the Excessive Fines Clause. We have, however, explained that at the time the Constitution was adopted, "the word `fine' was understood to mean a payment to a sovereign as punishment for some offense." Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal,
We have little trouble concluding that the forfeiture of currency ordered by § 982(a)(1) constitutes punishment. The statute directs a court to order forfeiture as an additional sanction when "imposing sentence on a person convicted of" a willful violation of § 5316's reporting requirement. The forfeiture is thus imposed at the culmination of a criminal proceeding and requires conviction of an underlying felony, and it cannot be imposed upon an innocent owner of unreported currency, but only upon a person who has himself been convicted of a § 5316 reporting violation.
The United States also argues that the forfeiture mandated by § 982(a)(1) is constitutional because it falls within a class of historic forfeitures of property tainted by crime. See Brief for United States 16 (citing, inter alia, The Pal-
The theory behind such forfeitures was the fiction that the action was directed against "guilty property," rather than against the offender himself.
Traditional in rem forfeitures were thus not considered punishment against the individual for an offense. See id., at 14; Dobbins's Distillery v. United States, supra, at 401; Van Oster v. Kansas, 272 U.S. 465, 467-468 (1926); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683-684 (1974); Taylor v. United States, 3 How. 197, 210 (1845) (opinion of Story, J.) (laws providing for in rem forfeiture of goods imported in violation of customs laws, although in one sense "imposing a penalty or forfeiture[,] . . . truly deserve to be called, remedial"); see also United States v. Ursery, 518 U.S. 267, 293 (1996) (Kennedy, J., concurring) ("[C]ivil in rem forfeiture is not punishment of the wrongdoer for his criminal offense"). Because they were viewed as nonpunitive, such forfeitures traditionally were considered to occupy a place outside the domain of the Excessive Fines Clause. Recognizing the nonpunitive character of such proceedings, we have held that the Double Jeopardy Clause does not bar the institution of a civil, in rem forfeiture action after the criminal conviction of the defendant. See id., at 278.
The forfeiture in this case does not bear any of the hallmarks of traditional civil in rem forfeitures. The Government
Section 982(a)(1) thus descends not from historic in rem forfeitures of guilty property, but from a different historical tradition: that of in personam, criminal forfeitures. Such forfeitures have historically been treated as punitive, being part of the punishment imposed for felonies and treason in the Middle Ages and at common law. See W. McKechnie, Magna Carta 337-339 (2d ed. 1958); 2 F. Pollock & F. Maitland, The History of English Law 460-466 (2d ed. 1909). Although in personam criminal forfeitures were well established in England at the time of the founding, they were rejected altogether in the laws of this country until very recently.
Acceptance of the Government's argument would require us to expand the traditional understanding of instrumentality forfeitures. This we decline to do. Instrumentalities historically have been treated as a form of "guilty property" that can be forfeited in civil in rem proceedings. In this case, however, the Government has sought to punish respondent by proceeding against him criminally, in personam, rather than proceeding in rem against the currency. It is therefore irrelevant whether respondent's currency is an instrumentality; the forfeiture is punitive, and the test for
Because the forfeiture of respondent's currency constitutes punishment and is thus a "fine" within the meaning of the Excessive Fines Clause, we now turn to the question whether it is "excessive."
The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. See Austin v. United States, 509 U. S., at 622-623 (noting Court of Appeals' statement that "`the government is exacting too high a penalty in relation to the offense committed' "); Alexander v. United States, 509 U.S. 544, 559 (1993) ("It is in the light of the extensive criminal activities which petitioner apparently conducted . . . that the question whether the forfeiture was `excessive' must be considered"). Until today, however, we have not articulated a standard for determining whether a punitive forfeiture is constitutionally excessive. We now hold that a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense.
Nor does its history. The Clause was little discussed in the First Congress and the debates over the ratification of the Bill of Rights. As we have previously noted, the Clause was taken verbatim from the English Bill of Rights of 1689. See Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S., at 266-267. That document's prohibition against excessive fines was a reaction to the abuses of the King's judges during the reigns of the Stuarts, id., at 267, but the fines that those judges imposed were described contemporaneously only in the most general terms. See Earl of Devonshire's Case, 11 State Tr. 1367, 1372 (H. L. 1689) (fine of £30,000 "excessive and exorbitant, against Magna Charta, the common right of the subject, and the law of the land"). Similarly, Magna Charta——which the Stuart judges were accused of subverting——required only that amercements (the medieval predecessors of fines) should be proportioned to the offense and that they should not deprive a wrongdoer of his livelihood:
None of these sources suggests how disproportional to the gravity of an offense a fine must be in order to be deemed constitutionally excessive.
We must therefore rely on other considerations in deriving a constitutional excessiveness standard, and there are two that we find particularly relevant. The first, which we have emphasized in our cases interpreting the Cruel and Unusual Punishments Clause, is that judgments about the appropriate punishment for an offense belong in the first instance to the legislature. See, e. g., Solem v. Helm, 463 U.S. 277, 290 (1983) ("Reviewing courts . . . should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes"); see also Gore v.United States, 357 U.S. 386, 393 (1958) ("Whatever views may be entertained regarding severity of punishment, . . . these are peculiarly questions of legislative policy"). The second is that any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise. Both of these principles counsel against requiring strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense, and we therefore adopt the standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause precedents. See, e. g., Solem v. Helm, supra, at 288; Rummel v. Estelle, 445 U.S. 263, 271 (1980).
In applying this standard, the district courts in the first instance, and the courts of appeals, reviewing the proportionality determination de novo,
Under this standard, the forfeiture of respondent's entire $357,144 would violate the Excessive Fines Clause.
The harm that respondent caused was also minimal. Failure to report his currency affected only one party, the Government, and in a relatively minor way. There was no fraud on the United States, and respondent caused no loss to the public fisc. Had his crime gone undetected, the Government would have been deprived only of the information that $357,144 had left the country. The Government and the dissent contend that there is a correlation between the amount forfeited and the harm that the Government would have suffered had the crime gone undetected. See Brief for United States 30 (forfeiture is "perfectly calibrated"); post, at 344 ("a fine calibrated with this accuracy"). We disagree. There is no inherent proportionality in such a forfeiture. It is impossible to conclude, for example, that the harm respondent caused is anywhere near 30 times greater than that caused by a hypothetical drug dealer who willfully fails to report taking $12,000 out of the country in order to purchase drugs.
Comparing the gravity of respondent's crime with the $357,144 forfeiture the Government seeks, we conclude that such a forfeiture would be grossly disproportional to the
Finally, we must reject the contention that the proportionality of full forfeiture is demonstrated by the fact that the First Congress enacted statutes requiring full forfeiture of goods involved in customs offenses or the payment of monetary penalties proportioned to the goods' value. It is argued that the enactment of these statutes at roughly the same time that the Eighth Amendment was ratified suggests that full forfeiture, in the customs context at least, is a proportional punishment. The early customs statutes, however, do not support such a conclusion because, unlike § 982(a)(1), the type of forfeiture that they imposed was not considered punishment for a criminal offense.
Certain of the early customs statutes required the forfeiture of goods imported in violation of the customs laws, and, in some instances, the vessels carrying them as well. See, e. g., Act of Aug. 4, 1790, § 27, 1 Stat. 163 (goods unladen without a permit from the collector). These forfeitures, however, were civil in rem forfeitures, in which the Government proceeded against the property itself on the theory that it was guilty, not against a criminal defendant. See, e. g., Harford v. United States, 8 Cranch 109 (1814) (goods unladen without a permit); Locke v. United States, 7 Cranch 339, 340 (1813) (same). Such forfeitures sought to vindicate the Government's underlying property right in customs duties, and like other traditional in rem forfeitures, they were not considered at the founding to be punishment for an offense. See supra, at 330-331. They therefore indicate
Other statutes, however, imposed monetary "forfeitures" proportioned to the value of the goods involved. See, e. g., Act of July 31, 1789, § 22, 1 Stat. 42 (if an importer, "with design to defraud the revenue," did not invoice his goods at their actual cost at the place of export, "all such goods, wares or merchandise, or the value thereof . . . shall be forfeited"); § 25, id., at 43 (any person concealing or purchasing goods, knowing they were liable to seizure for violation of the customs laws, was liable to "forfeit and pay a sum double the value of the goods so concealed or purchased"); see also Act of Aug. 4, 1790, §§ 10, 14, 22, id., at 156, 158, 161. Similar statutes were passed in later Congresses. See, e. g., Act of Mar. 2, 1799, §§ 24, 28, 45, 46, 66, 69, 79, 84, id., at 646, 648, 661, 662, 677, 678, 687, 694; Act of Mar. 3, 1823, ch. 58, § 1, 3 Stat. 781.
These "forfeitures" were similarly not considered punishments for criminal offenses. This Court so recognized in Stockwell v. United States, 13 Wall. 531 (1871), a case interpreting a statute that, like the Act of July 31, 1789, provided that a person who had concealed goods liable to seizure for customs violations should "forfeit and pay a sum double the amount or value of the goods." Act of Mar. 3, 1823, ch. 58, § 2, 3 Stat. 781-782. The Stockwell Court rejected the defendant's
Significantly, the fact that the forfeiture was a multiple of the value of the goods did not alter the Court's conclusion:
The early monetary forfeitures, therefore, were considered not as punishment for an offense, but rather as serving the remedial purpose of reimbursing the Government for the losses accruing from the evasion of customs duties.
* * *
For the foregoing reasons, the full forfeiture of respondent's currency would violate the Excessive Fines Clause. The judgment of the Court of Appeals is
Justice Kennedy, with whom The Chief Justice, Justice CONNOR, and Justice Scalia join, dissenting.
For the first time in its history, the Court strikes down a fine as excessive under the Eighth Amendment. The decision is disturbing both for its specific holding and for the broader upheaval it foreshadows. At issue is a fine Congress fixed in the amount of the currency respondent sought to smuggle or to transport without reporting. If a fine calibrated with this accuracy fails the Court's test, its decision portends serious disruption of a vast range of statutory fines. The Court all but says the offense is not serious anyway. This disdain for the statute is wrong as an empirical matter and disrespectful of the separation of powers. The irony of the case is that, in the end, it may stand for narrowing constitutional protection rather than enhancing it. To make its rationale work, the Court appears to remove important classes of fines from any excessiveness inquiry at all. This, too, is unsound; and with all respect, I dissent.
In striking down this forfeiture, the majority treats many fines as "remedial" penalties even though they far exceed the
This novel, mistaken approach requires reordering a tradition existing long before the Republic and confirmed in its early years. The Court creates its category to reconcile its unprecedented holding with a six-century-long tradition of in personam customs fines equal to one, two, three, or even four times the value of the goods at issue. E. g., Cross v. United States, 6 F. Cas. 892 (No. 3,434) (CC Mass. 1812) (Story, J., Cir. J.); United States v. Riley, 88 F. 480 (SDNY 1898); United States v. Jordan, 26 F. Cas. 661 (No. 15,498) (Mass. 1876); In re Vetterlein, 28 F. Cas. 1172 (No. 16,929) (CC SDNY 1875); United States v. Hughes, 26 F. Cas. 417 (No. 15,417) (CC SDNY 1875); McGlinchy v. United States, 16 F. Cas. 118 (No. 8,803) (CC Me. 1875); United States v. Hutchinson, 26 F. Cas. 446 (No. 15,431) (Me. 1868); Tariff Act of 1930, § 497, 46 Stat. 728, as amended, 19 U. S. C. § 1497(a) (failing to declare goods); Act of Mar. 3, 1863, § 1, 12 Stat. 738 (same); Act of Mar. 3, 1823, ch. 58, § 1, 3 Stat. 781 (importing without a manifest); Act of Mar. 2, 1799, §§ 46, 79, 84, 1 Stat. 662, 687, 694 (failing to declare goods; failing to reexport goods; making false entries on forms); Act of Aug. 4, 1790, §§ 10, 14, 22, 1 Stat. 156, 158, 161 (submitting incomplete manifests; unloading before customs; unloading dutyfree goods); Act of July 31, 1789, §§ 22, 25, 1 Stat. 42, 43 (using false invoices; buying uncustomed goods); King v. Manning, 2 Comyns 616, 92 Eng. Rep. 1236 (K. B. 1738) (assisting smugglers); 1 Eliz. 1, ch. 11, § 5 (1558-1559) (Eng.) (declaring goods under wrong person's name); 1 & 2 Phil. &
In order to sweep all these precedents aside, the majority's remedial analysis assumes the settled tradition was limited to "reimbursing the Government for" unpaid duties. Ante, at 342. The assumption is wrong. Many offenses did not require a failure to pay a duty at all. See, e. g., Act of Mar. 3, 1863, § 1, 12 Stat. 738 (importing under false invoices); Act of Mar. 3, 1823, ch. 58, § 1, 3 Stat. 781 (failing to deliver ship's manifest); Act of Mar. 2, 1799, § 28, 1 Stat. 648 (transferring goods from one ship to another); Act of Aug. 4, 1790, § 14, 1 Stat. 158 (same); 5 Rich. II, st. 1, ch. 2 (1381) (Eng.) (exporting gold or silver without a license). None of these in personam penalties depended on a compensable monetary loss to the Government. True, these offenses risked causing harm, ante, at 342-343, n. 17, but so does smuggling or not reporting cash. A sanction proportioned to potential rather than actual harm is punitive, though the potential harm may make the punishment a reasonable one. See TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 460-462 (1993) (opinion of Stevens, J.). The majority nonetheless treats the historic penalties as nonpunitive and thus not subject to the Excessive Fines Clause, though they are indistinguishable from the fine in this case. (It is a mark of the Court's doctrinal difficulty that we must speak of nonpunitive penalties, which is a contradiction in terms.)
Even if the majority's typology were correct, it would have to treat the instant penalty as nonpunitive. In this respect, the Court cannot distinguish the case on which it twice relies, One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972) (per curiam). Ante, at 329, 343. Emerald Stones held forfeiture of smuggled goods plus a fine equal to their value was remedial and not punitive, for purposes of
The majority's novel holding creates another anomaly as well. The majority suggests in rem forfeitures of the instrumentalities of crimes are not fines at all. See ante, at 333-334, and nn. 8, 9. The point of the instrumentality theory is to distinguish goods having a "close enough relationship to the offense" from those incidentally related to it. Austin v. United States, 509 U.S. 602, 628 (1993) (Scalia, J., concurring in part and concurring in judgment). From this, the Court concludes the money in a cash-smuggling or nonreporting offense cannot be an instrumentality, unlike, say, a car used to transport goods concealed from taxes. Ante, at 334, n. 9. There is little logic in this rationale. The car plays an important role in the offense but is not essential; one could also transport goods by jet or by foot. The link between the cash and the cash-smuggling offense is closer, as the offender must fail to report while smuggling more than $10,000. See 31 U. S. C. §§ 5316(a), 5322(a). The cash is not just incidentally related to the offense of cash smuggling. It is essential, whereas the car is not. Yet the car plays an important enough role to justify forfeiture, as the majority concedes. A fortiori, the cash does as well. Even if there were a clear distinction between instrumentalities
Turning to the question of excessiveness, the majority states the test: A defendant must prove a gross disproportion before a court will strike down a fine as excessive. See ante, at 334. This test would be a proper way to apply the Clause, if only the majority were faithful in applying it. The Court does not, however, explain why in this case forfeiture of all of the cash would have suffered from a gross disproportion. The offense is a serious one, and respondent's smuggling and failing to report were willful. The cash was lawful to own, but this fact shows only that the forfeiture was a fine; it cannot also prove that the fine was excessive.
The majority illuminates its test with a principle of deference. Courts "`should grant substantial deference to the broad authority that legislatures necessarily possess' " in setting punishments. Ante, at 336 (quoting Solem v. Helm, 463 U.S. 277, 290 (1983)). Again, the principle is sound but the implementation is not. The majority's assessment of the crime accords no deference, let alone substantial deference, to the judgment of Congress. Congress deems the crime serious, but the Court does not. Under the congressional statute, the crime is punishable by a prison sentence, a heavy fine, and the forfeiture here at issue. As the statute makes clear, the Government needs the information to investigate other serious crimes, and it needs the penalties to ensure compliance.
By affirming, the majority in effect approves a meager $15,000 forfeiture. The majority's holding purports to be narrower, saying only that forfeiture of the entire $357,144 would be excessive. Ante, at 337, and n. 11. This narrow holding is artificial in constricting the question presented for this Court's review. The statute mandates forfeiture of
The majority does not explain why respondent's knowing, willful, serious crime deserves no higher penalty than $15,000. It gives only a cursory explanation of why forfeiture of all of the money would have suffered from a gross disproportion. The majority justifies its evisceration of the fine because the money was legal to have and came from a legal source. See ante, at 337-338. This fact, however, shows only that the forfeiture was a fine, not that it was excessive. As the majority puts it, respondent's money was lawful to possess, was acquired in a lawful manner, and was lawful to export. Ibid. It was not, however, lawful to possess the money while concealing and smuggling it. Even if one overlooks this problem, the apparent lawfulness of the money adds nothing to the argument. If the items possessed had been dangerous or unlawful to own, for instance, narcotics, the forfeiture would have been remedial and would not have been a fine at all. See Austin, supra, at 621; e. g., United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364 (1984) (unlicensed guns); Commonwealth v. Dana, 43 Mass. 329, 337 (1841) (forbidden lottery tickets). If respondent had acquired the money in an unlawful manner, it would have been forfeitable as proceeds of the crime. As a rule, forfeitures of criminal proceeds serve the nonpunitive ends of making restitution to the rightful owners and of compelling the surrender of property held without right or ownership. See United States v. Ursery, 518 U.S. 267, 284
In assessing whether there is a gross disproportion, the majority concedes, we must grant "`substantial deference' " to Congress' choice of penalties. Ante, at 336 (quoting Solem, supra, at 290). Yet, ignoring its own command, the Court sweeps aside Congress' reasoned judgment and substitutes arguments that are little more than speculation.
Congress considered currency smuggling and nonreporting a serious crime and imposed commensurate penalties. It authorized punishments of five years' imprisonment, a $250,000 fine, plus forfeiture of all the undeclared cash. 31 U. S. C. § 5322(a); 18 U. S. C. § 982(a)(1). Congress found the offense standing alone is a serious crime, for the same statute doubles the fines and imprisonment for failures to report cash "while violating another law of the United States." 31 U. S. C. § 5322(b). Congress experimented with lower penalties on the order of one year in prison plus a $1,000 fine, but it found the punishments inadequate to deter lucrative money laundering. See President's Commission on Organized Crime, The Cash Connection: Organized Crime, Financial Institutions, and Money Laundering 27, 60 (Oct. 1984). The Court today rejects this judgment.
The Court rejects the congressional judgment because, it says, the Sentencing Guidelines cap the appropriate fine at $5,000. See ante, at 338-339, and n. 14. The purpose of the Guidelines, however, is to select punishments with precise proportion, not to opine on what is a gross disproportion. In addition, there is no authority for elevating the Commission's judgment of what is prudent over the congressional judgment
The Court's argument is flawed, moreover, by a serious misinterpretation of the Guidelines on their face. The Guidelines do not stop at the $5,000 fine the majority cites. They augment it with this vital point: "Forfeiture is to be imposed upon a convicted defendant as provided by statute." United States Sentencing Commission, Guidelines Manual § 5E1.4 (Nov. 1995). The fine thus supplements the forfeiture; it does not replace it. Far from contradicting congressional judgment on the offense, the Guidelines implement and mandate it.
The crime of smuggling or failing to report cash is more serious than the Court is willing to acknowledge. The drug trade, money laundering, and tax evasion all depend in part on smuggled and unreported cash. Congress enacted the reporting requirement because secret exports of money were being used in organized crime, drug trafficking, money laundering, and other crimes. See H. R. Rep. No. 91-975, pp. 12-13 (1970). Likewise, tax evaders were using cash exports to dodge hundreds of millions of dollars in taxes owed to the Government. See ibid.
The Court does not deny the importance of these interests but claims they are not implicated here because respondent managed to disprove any link to other crimes. Here, to be sure, the Government had no affirmative proof that the money was from an illegal source or for an illegal purpose. This will often be the case, however. By its very nature, money laundering is difficult to prove; for if the money launderers have done their job, the money appears to be clean. The point of the statute, which provides for even heavier penalties if a second crime can be proved, is to mandate forfeiture regardless. See 31 U. S. C. § 5322(b); 18 U. S. C.
In my view, forfeiture of all the unreported currency is sustainable whenever a willful violation is proved. The facts of this case exemplify how hard it can be to prove ownership and other crimes, and they also show respondent is far from an innocent victim. For one thing, he was guilty of repeated lies to Government agents and suborning lies by others. Customs inspectors told respondent of his duty to report cash. He and his wife claimed they had only $15,000 with them, not the $357,144 they in fact had concealed. He then told customs inspectors a friend named Abe Ajemian had lent him about $200,000. Ajemian denied this. A month later, respondent said Saeed Faroutan had lent him $170,000. Faroutan, however, said he had not made the loan and respondent had asked him to lie. Six months later, respondent resurrected the fable of the alleged loan from Ajemian, though Ajemian had already contradicted the story. As the District Court found, respondent "has lied, and has had his friends lie." Tr. 54 (Jan. 19, 1995). He had proffered a "suspicious and confused story, documented in the poorest way, and replete with past misrepresentation." Id., at 61-62.
The majority ratifies the District Court's see-no-evil approach. The District Court ignored respondent's lies in assessing a sentence. It gave him a two-level downward adjustment for acceptance of responsibility, instead of an increase for obstruction of justice. See id., at 62. It dismissed the lies as stemming from "distrust for the Government" arising out of "cultural differences." Id., at 63. While the majority is sincere in not endorsing this excuse, ante, at 337-338, n. 12, it nonetheless affirms the fine tainted by it. This patronizing excuse demeans millions of lawabiding American immigrants by suggesting they cannot be expected to be as truthful as every other citizen. Each American, regardless of culture or ethnicity, is equal before the law. Each has the same obligation to refrain from perjury and false statements to the Government.
In short, respondent was unable to give a single truthful explanation of the source of the cash. The multitude of lies and suspicious circumstances points to some form of crime. Yet, though the Government rebutted each and every fable respondent proffered, it was unable to adduce affirmative proof of another crime in this particular case.
Because of the problems of individual proof, Congress found it necessary to enact a blanket punishment. See S. Rep. No. 99-130, p. 21 (1985); see also Drug Money Laundering Control Efforts, Hearing before the Subcommittee on Consumer and Regulatory Affairs of the Senate Banking, Housing, and Urban Affairs Committee, 101st Cong., 1st Sess., 84 (1989) (former Internal Revenue Service agent found it "`unbelievably difficult' " to discern which money flows were legitimate and which were tied to crime). One of the few reliable warning signs of some serious crimes is the use of large sums of cash. See id., at 83. So Congress
Money launderers will rejoice to know they face forfeitures of less than 5% of the money transported, provided they hire accomplished liars to carry their money for them. Five percent, of course, is not much of a deterrent or punishment; it is comparable to the fee one might pay for a mortgage lender or broker. Cf. 15 U. S. C. § 1602(aa)(1)(B) (high-cost mortgages cost more than 8% in points and fees). It is far less than the 20%—26% commissions some drug dealers pay money launderers. See Hearing on Money Laundering and the Drug Trade before the Subcommittee on Crime of the House Judiciary Committee, 105th Cong., 1st Sess., 62 (1997) (testimony of M. Zeldin); Andelman, The Drug Money Maze, 73 Foreign Affairs 108 (July/Aug. 1994). Since many couriers evade detection, moreover, the average forfeiture per dollar smuggled could amount, courtesy of today's decision, to far less than 5%. In any event, the fine permitted by the majority would be a modest cost of doing business in the world of drugs and crime. See US/Mexico Bi-National Drug Threat Assessment 84 (Feb. 1997) (to drug dealers, transaction costs of 13%—15% are insignificant compared to their enormous profit margins).
Given the severity of respondent's crime, the Constitution does not forbid forfeiture of all of the smuggled or unreported cash. Congress made a considered judgment in setting the penalty, and the Court is in serious error to set it aside.
The Court's holding may in the long run undermine the purpose of the Excessive Fines Clause. One of the main
At the very least, today's decision will encourage legislatures to take advantage of another avenue the majority leaves open. The majority subjects this forfeiture to scrutiny because it is in personam, but it then suggests most in rem forfeitures (and perhaps most civil forfeitures) may not be fines at all. Ante, at 331, 340-341, and n. 16; but see ante, at 331, n. 6. The suggestion, one might note, is inconsistent or at least in tension with Austin v. United States, 509 U.S. 602 (1993). In any event, these remarks may encourage a legislative shift from in personam to in rem forfeitures, avoiding mens rea as a predicate and giving owners fewer procedural protections. By invoking the Excessive Fines Clause with excessive zeal, the majority may in the long run encourage Congress to circumvent it.
The majority's holding may not only jeopardize a vast range of fines but also leave countless others unchecked by
"[A] person or an agent or bailee of the person shall file a report . . . when the person, agent, or bailee knowingly——
"(1) transports, is about to transport, or has transported, monetary instruments of more than $10,000 at one time——
"(A) from a place in the United States to or through a place outside the United States . . . ."31 U. S. C. § 5316(a).
For this reason, the dissent's speculation about the effect of today's holding on "kingpins" and "cash couriers" is misplaced. See post, at 352, 354. Section 982(a)(1)'s criminal in personam forfeiture reaches only currency owned by someone who himself commits a reporting crime. It is unlikely that the Government, in the course of criminally indicting and prosecuting a cash courier, would not bother to investigate the source and true ownership of unreported funds.
It was only in 1970 that Congress resurrected the English common law of punitive forfeiture to combat organized crime and major drug trafficking. See Organized Crime Control Act of 1970, 18 U. S. C. § 1963, and Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U. S. C. § 848(a). In providing for this mode of punishment, which had long been unused in this country, the Senate Judiciary Committee acknowledged that "criminal forfeiture . . . represents an innovative attempt to call on our common law heritage to meet an essentially modern problem." S. Rep. No. 91-617, p. 79 (1969). Indeed, it was not until 1992 that Congress provided for the criminal forfeiture of currency at issue here. See 18 U. S. C. § 982(a).
Further, the District Court's finding that respondent's lies stemmed from a fear of the Government because of "cultural differences," supra, at 326, does not mitigate the gravity of his offense. We reject the dissent's contention that this finding was a "patronizing excuse" that "demeans millions of law-abiding American immigrants by suggesting they cannot be expected to be as truthful as every other citizen." Post, at 353. We are confident that the District Court concurred in the dissent's incontrovertible proposition that "[e]ach American, regardless of culture or ethnicity, is equal before the law." Ibid. The District Court did nothing whatsoever to imply that "cultural differences" excuse lying, but rather made this finding in the context of establishing that respondent's willful failure to report the currency was unrelated to any other crime——a finding highly relevant to the determination of the gravity of respondent's offense. The dissent's charge of ethnic paternalism on the part of the District Court finds no support in the record, nor is there any indication that the District Court's factual finding that respondent "distrust[ed] . . . the Government," see supra, at 326, was clearly erroneous.
"`The concept of forfeiture as a criminal penalty which is embodied in this provision differs from other presently existing forfeiture provisions under Federal statutes where the proceeding is in rem against the property and the thing which is declared unlawful under the statute, or which is used for an unlawful purpose, or in connection with the prohibited property or transaction, is considered the offender, and the forfeiture is no part of the punishment for the criminal offense. Examples of such forfeiture provisions are those contained in the customs, narcotics, and revenue laws. ` " S. Rep. No. 91-617, p. 79 (1969) (emphasis added).