Thorp v. State

• Decision Date: 05 December 1994
• Docket Number: No. S94Q1017,S94Q1017
• Citation: 450 S.E.2d 416,264 Ga. 712
• Parties: , 63 USLW 2459 THORP et al. v. THE STATE et al.
• Court: Georgia Supreme Court

Page 416

450 S.E.2d 416

264 Ga. 712, 63 USLW 2459

THORP et al. v. THE STATE et al.

No. S94Q1017.

Supreme Court of Georgia.

Dec. 5, 1994.

Cory G. Begner, Atlanta, for Brenda M. Thorp.

Lewis R. Slaton, Dist. Atty., Benjamin H. Oehlert, III, Vivian D. Hoard, Asst. Dist. Attys., Atlanta, for the State.

SEARS, Justice.

The appellant, Brenda Thorp, was stopped for a traffic offense and her automobile was impounded. As a result of an inventory of the automobile, cocaine, a set of scales, and several plastic bags were discovered. Thorp pled guilty to possession of the cocaine. Thereafter, civil in rem forfeiture proceedings were initiated against the automobile pursuant to OCGA § 16-13-49. The trial court entered a judgment of forfeiture, and Thorp appealed to the Court of Appeals. The Court of Appeals has now certified the following questions to the Court:

1. Does the prohibition against excessive fines of the Eighth Amendment of the United States Constitution apply to forfeitures effected pursuant to OCGA § 16-13-49?

2. If so, what is the proper test to apply to determine whether a forfeiture is excessive?

3. If a proportionality test must be employed what minimal factors, if any, must be considered and weighed?

4. Is there a difference between the test to be applied in a civil in rem and in an in personam forfeiture action?

5. Did the trial court err in its determination that considering the claimant received a minimal sentence in the criminal case, this forfeiture does not represent an excessive fine in violation of the Eighth Amendment to the United States Constitution?

1. The prohibition against excessive fines of the Eighth Amendment does apply to civil in rem forfeitures under OCGA § 16-13-49. Austin v. U.S., 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). Accordingly, we answer the first question in the affirmative.

2. In Austin, the Supreme Court declined to establish a test for determining whether an in rem forfeiture is constitutionally excessive. However, Justice Scalia did address "the excessiveness inquiry for statutory in rem forfeitures" in his separate opinion wherein he concurred in part and concurred in the judgment. Justice Scalia rejected any proportionality inquiry regarding the severity of the penalty in relation to the offense and instead adopted a single-factor "instrumentality" test focusing on the relationship of the property to the offense. According to Justice Scalia:

Unlike monetary fines, statutory in rem forfeitures have traditionally been fixed, not by determining the appropriate value of the penalty in relation to the committed offense, but by determining what property has been "tainted" by unlawful use, to which issue the value of the property is irrelevant. Scales used to measure out unlawful drug sales, for example, are confiscable whether made of the purest gold or the basest metal. But an in rem forfeiture goes beyond the traditional limits that the Eighth Amendment permits if it applies to property that cannot properly be regarded as an instrumentality of the offense--the building, for example, in which an isolated drug sale happens to occur. Such a confiscation would be an excessive fine. The question is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.

... The relevant inquiry for an excessive forfeiture ... is the relationship of the property to the offense: Was it close enough to render the property, under traditional standards, "guilty" and hence forfeitable? [Austin v. U.S., 509 U.S. at ----, 113 S.Ct. at 2815 (II) (emphasis in original).]

Several other courts have adopted Justice Scalia's instrumentality test. See State v. Meister, 866 S.W.2d 485, 488 (II) (Mo.App.W.D.1993); In re King Properties, 535 Pa. 321, 635 A.2d 128, 133 (1993); U.S. v. Chandler, 36 F.3d 358 (4th Cir.1994). In fact, in Chandler, the court stated that

the ... proportionality principle, if it does exist in the Eighth Amendment, derives from the Cruel and Unusual Punishment Clause and not the Excessive Fines Clause. While the principle of proportionality is traditionally associated with discussions of whether punishment is cruel and unusual ..., we believe that it is not applicable when considering the excessiveness of a forfeiture of specifically identified property. [Chandler, 36 F.3d at 365.]

3. For the reasons that follow, we decline to adopt Justice Scalia's single-factor instrumentality test as the sole test for determining if a forfeiture is excessive. We conclude that other factors relating to proportionality are also relevant.

To begin, regarding Justice Scalia's test, the majority in Austin stated that

Justice SCALIA suggests that the sole measure of an in rem forfeiture's excessiveness is the relationship between the forfeited property and the offense.... We do not rule out the possibility that the connection between the property and the offense may be relevant, but our decision today in no way limits the Court of Appeals from considering other factors in determining whether the forfeiture of Austin's property was excessive. [Austin, 509 U.S. at ----, n. 15, 113 S.Ct. at 2812, n. 15.]

At a minimum, this footnote represents the majority's refusal to put its imprimatur on Justice Scalia's test. In fact, this footnote appears to disapprove the idea that that test is the only appropriate criteria for determining if a civil forfeiture is excessive. Knowing that the United States Court of Appeals for the Eighth Circuit would have to apply an excessiveness test on remand, the majority stated that the Court of Appeals was not limited to Justice Scalia's test--the relationship between the forfeited property and the offense--but could consider other factors as well.

Further, Justice Scalia's instrumentality test is based on the legal fiction that the property is considered the offender in all in rem forfeiture cases, thus making any inquiry into the defendant's offense or the value of the property irrelevant. See The Supreme Court--Leading Cases, 107 Harv.L.Rev. 144, 209-211 (1993). However, the propriety of this legal fiction has been questioned.

"Legal niceties such as in rem and in personam mean little to individuals faced with losing important and/or valuable assets." ... "Such a notion of rights in rem is ... crude and fallacious...." "The fiction that property is actually the wrongdoer no longer should be maintained. Property cannot take any action." [The Supreme Court, 107 Harv.L.Rev. at 212-213, n. 51 (citations omitted).]

In this regard, the majority in Austin recognized that civil in rem forfeitures are not predicated solely on the notion that the property is guilty. "[T]he Court has understood this fiction [that the property is the offender] to rest on the notion that the owner who allows his property to become involved in an offense has been negligent." Austin, 509 U.S. at ----, 113 S.Ct. at 2809. In fact, the majority in Austin predicated the applicability of the excessiveness prohibition on the ground that the forfeiture served to punish the owner. Id. at ---- - ----, 113 S.Ct. at 2807-2810. In U.S. v. 6625 Zumirez Drive, 845 F.Supp. 725, 733 (C.D.Cal.1994), the court adopted both a proportionality test and Justice Scalia's test, reasoning, in part, that

Since the claimant is the person punished for the offense, and since an offense cannot occur without some human participation, it would be illogical not to consider relevant the extent of the claimant's involvement in the offense.

With the legal fiction for in rem forfeitures removed, the elements of "a proportionality test ... become relevant to in rem forfeitures." The Supreme Court, 107 Harv.L.Rev. at 213.

Further, the very word "excessive" plainly contemplates some comparison of the fine to the conduct sought to be punished in order to determine if the fine violates the Eighth Amendment. In this regard, it has been said that "[i]t is difficult to imagine, ... how a fine could ever be found 'excessive' without some analysis of the relationship between the penalty and the offense for which it is imposed." Bittle, Comment, Punitive Damages and the Eighth Amendment: An Analytical Framework for Determining Excessiveness, 75 Cal.L.Rev. 1433, 1450 (1987). Moreover, in the context of a dissent in a cruel and unusual punishment case, Justice White indicated his view that the word "excessive" implies a proportionality requirement and that such a requirement for the Eighth Amendment might indeed stem from the Excessive Fines Clause and not the Cruel and Unusual Punishments Clause.

The language of the [Eighth 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. [Harmelin v. Michigan, 501 U.S. 957, 1009, 111 S.Ct. 2680, 2709, 115 L.Ed.2d 836 (1991).]

In a similar vein, the Supreme Court has "recognized that the word 'excessive' prohibits a lack of proportion between the amount of bail and the risk of a defendant's flight." The Supreme Court, 107 Harv.L.Rev. at 211 (citing to Stack v. Boyle, 342 U.S. 1, 5-6, 72 S.Ct. 1, 3-4, 96 L.Ed. 3 (1951)).

In addition, although Alexander v. U.S., 509 U.S. 544, ---- - ----, 113 S.Ct. 2766 2775-76, 125 L.Ed.2d 441 (1993), involved a criminal in personam forfeiture, it supports the conclusion that the word "excessive" connotes a proportionality review. In that case, Alexander argued that

the forfeiture ...--considered atop his 6-year prison term and his $100,000 fine--[was] disproportionate to the gravity of his offenses and therefore violate[d] the Eighth Amendment, either as a "cruel and unusual punishment" or as an "excessive fine."

Id. at ----, 113 S.Ct. at 2775. The federal circuit court had ruled that a proportionality review of the forfeiture did not have to be...