Category Archives: Eighth Amendment

Roper v. Simmons: Minor Execution (03/01/2005)

Roper v. Simmons

Does the execution of minors violate the prohibition of “cruel and unusual punishment” found in the Eighth Amendment and applied to the states through the incorporation doctrine of the 14th Amendment?

Argued: 10/13/2004

Decision Date: 03/01/2005

Decision Record: 5-4; yes

Justices in Favor: John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, Stephen Breyer

Justices Dissenting: William Rehnquist, Sandra Day O’Connor, Antonin Scalia, Clarence Thomas

Effect of the Decision

The court ruled that the execution of minors is considered a violation of the Eighth Amendment.

In Favor

In the favoring side of this case, on the side of Roper, attorney James R. Layton argued, “Though bound by Stanford v. Kentucky, the Missouri Supreme Court rejected both its holding and its rationale.

This Court should stay the course it set in Stanford, leaving in the hands of legislators a determination as to the precise minimum age for capital punishment within the realm of Thompson v. Oklahoma, and leaving to jurors responsibility for determining the culpability of individual defendants above that minimum age.

The Missouri court justified its departure from Stanford on Atkins v. Virginia, but the result it reached is quite different from the result in Stanford.

In that… excuse me… in Atkins.

In that case, the Court was addressing mental ability, itself a component of culpability.

The Court announced a principle based on that characteristic, that is, that the mentally retarded are not to be eligible for capital punishment, but then it left to the States the determination of the standard and the means of implementing that principle.

The Missouri Supreme Court, by contrast, jumped beyond the question of maturity, which is an element of culpability analysis, to the arbitrary distinction of age.

It drew a line based purely on age, which is necessarily over-inclusive, and then it gave that line constitutional status, thus depriving legislators and juries of the ability to evaluate the maturity of 17-year-old defenders.”


In the opposition, on the side of Simmons, attorney Seth P. Waxman argued, “Everyone agrees that there is some age below which juveniles can’t be subjected to the death penalty.

The question here is where our society’s evolving standards of decency now draw that line.

15 years ago, this Court found insufficient evidence to justify a bright line at 18, but since Stanford, a consensus has evolved and new scientific evidence has emerged, and these developments change the constitutional calculus for much the same reasons the Court found compelling in Atkins.

We’re talking not only about the whole variety of ways in which our society has concluded that 18 is the bright line between childhood and adulthood and that 18 is the line below which we preserve… presume immaturity.

But the line with respect to executions, the trend is very robust and it is very deep.”


On the side of the majority, Justice Anthony Kennedy wrote the opinion for the court. He wrote, “Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. See The Federalist No. 49, p. 314 (C. Rossiter ed. 1961). The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

    The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. The judgment of the Missouri Supreme Court setting aside the sentence of death imposed upon Christopher Simmons is affirmed.”

In opposition, Justice Sandra Day O’Connor wrote, “Reasonable minds can differ as to the minimum age at which commission of a serious crime should expose the defendant to the death penalty, if at all. Many jurisdictions have abolished capital punishment altogether, while many others have determined that even the most heinous crime, if committed before the age of 18, should not be punishable by death. Indeed, were my office that of a legislator, rather than a judge, then I, too, would be inclined to support legislation setting a minimum age of 18 in this context. But a significant number of States, including Missouri, have decided to make the death penalty potentially available for 17-year-old capital murderers such as respondent. Without a clearer showing that a genuine national consensus forbids the execution of such offenders, this Court should not substitute its own “inevitably subjective judgment” on how best to resolve this difficult moral question for the judgments of the Nation’s democratically elected legislatures. See Thompsonsupra, at 854 (O’Connor, J., concurring in judgment). I respectfully dissent.”

Also in opposition, Justice Antonin Scalia wrote, “However sound philosophically, this is no way to run a legal system. We must disregard the new reality that, to the extent our Eighth Amendment decisions constitute something more than a show of hands on the current Justices’ current personal views about penology, they purport to be nothing more than a snapshot of American public opinion at a particular point in time (with the timeframes now shortened to a mere 15 years). We must treat these decisions just as though they represented real law, real prescriptions democratically adopted by the American people, as conclusively (rather than sequentially) construed by this Court. Allowing lower courts to reinterpret the Eighth Amendment whenever they decide enough time has passed for a new snapshot leaves this Court’s decisions without any force–especially since the “evolution” of our Eighth Amendment is no longer determined by objective criteria. To allow lower courts to behave as we do, “updating” the Eighth Amendmentas needed, destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials. The result will be to crown arbitrariness with chaos.”

My Opinion:

In this case, I disagree with the majority opinion and agree with the minority. Just because one is a minor, doesn’t mean they shouldn’t be held accountable for the crimes they commit that may result or deserve a death penalty. By letting them off the hook for a death penalty, this gives minors a little more leniency to do what they want, knowing they won’t lose their life.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Robinson v. California: California Narcotics Law; Criminal Offense (06/25/1962)

Robinson v. California

Was the California law an infliction of cruel and unusual punishment prohibited by the Eighth Amendment?

Argued: 04/17/1962

Decision Date: 06/25/1962

Decision Record: 6-2; yes

Justices Majority: Earl Warren, Hugo Black, John Harlan, Potter Stewart, William Brennan, William Douglas

Justices Dissenting: Tom Clark, Byron White

Justice Felix Frankfurter did not take part in this decision.

Effect of the Decision

This case held that a state cannot pass a law that states that merely being “mentally ill, or a leper, or to be afflicted with a venereal disease” due to narccotics will be considered an offense.

In Favor

In the representation of the side of the Robinson, attorney Samuel Carter McMorris said, “The present case, Robinson versus California, is of challenge to and attack upon Section 11721 of the Health and Safety Code of the State of California essentially because we feel that it is a denial of equal protection and due process in that it punishes a status rather than an act or omission, that it punishes an involuntary status, that it punishes a status of physical and mental illness, that it is vague, indefinite and uncertain upon its face, that double jeopardy is inherent in any crime of status and certainly in this — the present one and that this statute is unwarranted and unconstitutional infringement upon the freedom of movement, that it is ex post facto and that it imposes cruel and unusual punishment.

Now, because our case is essentially an attack upon the law itself, the most crucial fact we have before us is the nature and the content or the necessary and implicit application of this law.

However, because we have — aside or collateral issue or a secondary issue challenge also the search and seizure aspect of this case under the rule of Memphis, Ohio, the recent decision of this Court and because we also feel that under Thompson versus City of Louisville, there is an adequate evidence to sustain the conviction or in fact no evidence at all and hence a denial of due process.

The facts of the case will begin with the arrest itself.

On a chilly or cold night in February of 1960, the present appellant was riding as a passenger in the backseat of a car accompanied by his lady friend and other party named Banks and his wife were in the front seat, Banks being the driver.

The arresting officers testified that they stopped the vehicle because of an absence of rear license plate illumination.

We feel that the facts as testified by the arresting officers, negative of their excuse for the stoppage and that they actually presented three or four different reasons.

Secondly, we said that there was a car that driving slowly upon a dark unlit street and finally that they — that their — the territory in question had a reputation for person action and — interesting also that these officers were not traffic officers, though their original justification, the one accepted by the Court was a traffic stopping.

They were not traffic officers.

They’re not in a traffic car.

No citation for the traffic violation was given.

Nothing was said to the — to any party about driving too slowly, and this is admitted.

And as soon as the stopping took place, they began actually a search of the parties involved to see if they were narcotic addicts of which, they had no indication prior to the stopping of the vehicle.

So, since they were felony officers and were not traffic officers though we — we do not question the right of any officer to make a traffic stopping or arrest.

Since they were not traffic officers and did not have anything to do with traffic and stopping the car, we suspect that we have here the typical arrest, aroused arrest for the purpose of search to find whatever they might have found.

In fact, one of the officers testified that when the driver Banks got out of the car, he shined his light about this person to find whatever he could find.

And this of course is an admission of a general ex — search to see what evidence of any crime might have been there present.

But leave that as it may, upon the stopping, Banks left his vehicle and — and met the officer halfway.

And at this point, although it was a cold night of February and even of course the California nights are cold generally, certain in the month of February, this — this young man obligingly had his — no jacket on and his shirt sleeves rolled up so the arresting officer could see a single mark upon one of his arms, the right or the left as the case may have been.”


Then in opposition, representing the state of California, attorney William E. Doran claimed, “Mr. McMorris stated the appellant herein was convicted of 11721, Subsection of Health and Safety Code of California.

And also has he stated, the cause went to the jury only on two issues, use and addiction under the influence of that aspect of the — of the Section.

The court took from the jury my instructions.

I may say first getting directly to Mr. McMorris his main contention of purported unconstitutional status.

This addiction statute first became criminal in California in 1929 when it was added to the Penal Code as part of the Vagrancy Section.

In 1939, it was deleted from the Penal Code and the Vagrancy Section and put into the new Health and Safety Code which is connected I think at that time.

Since then, it has remained in the Health and Safety Code and has been amended from time-to-time in minor details.

In the briefs, both appellant and appellee have referred consistently to vagrancy probably because it’s the closest or the — the most usual, shall we say, statute under which a status is involved.

Now, its appellee’s contention that when this Section was removed from the Vagrancy Section in California and put into the Health and Safety Code, the only remaining aspect of vagrancy or even comparison to vagrancy that remained was the aspects of its status.

And it is our contention that thereafter, the ordinary ideas of vagrancy such as a — a tramp or a ne’er-do-well or a wonderer and such of the many common known types, we are not involved with the situation like that at all.

We are involved with a man who is putting a foreign fire into his veins, and it bears no relationship that we contented.

There is no further relationship to vagrancy except — except the peculiarity status.

Now, counsel has cited many of these vagrancy cases and of course we have cited them, too.

And he has referred to two particularly Lanzetta against New Jersey and Edelman against California.

The Lanzetta case involved vagrancy decided by this Court and it struck down the — the statute but not on the ground alone that it punished the status.

They struck him down because it was vague and indefinite in trying to define the status, it was going to punish.

The same in Edelman which this Court having taken jurisdiction didn’t decide the case on the merits but they were two dissenting opinions that went to the merits.

And the same thing shall I say happen there.

The California Vagrancy Statute was attacked but — on a very peculiar circumstances by which California or the City of Los Angeles in this instance utilized a Section 6475 of the Penal Code which proscribe, lewd and dissolute conduct making such person a vagrant, that’s the statement of the statute.

However, in that case, the Edelman case, they didn’t plead lewdness.

The pleading went only to dissolutes.

And it was an unfortunate situation no doubt because what they were trying to reach was something that the word “dissolute” as the two dissenting justices here held just shouldn’t reach.

And peculiarly enough and about the same time, the Appellate Department of Superior Court of Los Angeles from which the appellant of — from which the Edelman case came, decided another case unreported case of People against Dragna where they assumed practically the same position as assumed by the dissent in this Court to the effect that lewd and dissolute were used in the statutes anonymously.

And meant — they meant the same thing and as you couldn’t state an offense merely by the word ‘dissolute’.

Statue was aimed at lewdness.”


The majority opinion, written by Justice Potter Stewart, said, “This statute, therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the ‘status’ of narcotic addiction a criminal offense, for which the offender may be prosecuted “at any time before he reforms.” California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there.

It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. See Francis v. Resweber, 329 U.S. 459.

We cannot but consider the statute before us as of the same category. In this Court, counsel for the State recognized that narcotic addiction is an illness. Indeed, it is apparently an illness which may be contracted innocently or involuntarily.We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment. To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the “crime” of having a common cold.

We are not unmindful that the vicious evils of the narcotics traffic have occasioned the grave concern of government. There are, as we have said, countless fronts on which those evils may be legitimately attacked. We deal in this case only with an individual provision of a particularized local law as it has so far been interpreted by the California courts.”

Then in dissent, Justice Tom Clark wrote, “It is no answer to suggest that we are dealing with an involuntary status, and thus penal sanctions will be ineffective and unfair. The section at issue applies only to persons who use narcotics often, or even daily, but not to the point of losing self-control. When dealing with involuntary addicts, California moves only through § 5355 of its Welfare Institutions Code, which clearly is not penal. Even if it could be argued that § 11721 may not be limited to volitional addicts, the petitioner in the instant case undeniably retained the power of self-control, and thus, to him, the statute would be constitutional. Moreover, ‘status’ offenses have long been known and recognized in the criminal law. 4 Blackstone, Commentaries (Jones ed. 1916), 170. A ready example is drunkenness, which plainly is as involuntary after addiction to alcohol as is the taking of drugs.

Nor is the conjecture relevant that petitioner may have acquired his habit under lawful circumstances. There was no suggestion by him to this effect at trial, and surely the State need not rebut all possible lawful sources of addiction as part of its prima facie case.

The argument that the statute constitutes a cruel and unusual punishment is governed by the discussion above. Properly construed, the statute provides a treatment, rather than a punishment. But even if interpreted as penal, the sanction of incarceration for 3 to 12 months is not unreasonable when applied to a person who has voluntarily placed himself in a condition posing a serious threat to the State. Under either theory, its provisions for 3 to 12 months’ confinement can hardly be deemed unreasonable when compared to the provisions for 3 to 24 months’ confinement under § 5355 which the majority approves.”

Also in dissent, Justice Byron White wrote, “The Court has not merely tidied up California’s law by removing some irritating vestige of an outmoded approach to the control of narcotics. At the very least, it has effectively removed California’s power to deal effectively with the recurring case under the statute where there is ample evidence of use but no evidence of the precise location of use. Beyond this, it has cast serious doubt upon the power of any State to forbid the use of narcotics under threat of criminal punishment. I cannot believe that the Court would forbid the application of the criminal laws to the use of narcotics under any circumstances. But the States, as well as the Federal Government, are now on notice. They will have to await a final answer in another case.

Finally, I deem this application of ‘cruel and unusual punishment’ so novel that I suspect the Court was hard put to find a way to ascribe to the Framers of the Constitution the result reached today rather than to its own notions of ordered liberty. If this case involved economic regulation, the present Court’s allergy to substantive due process would surely save the statute and prevent the Court from imposing its own philosophical predilections upon state legislatures or Congress. I fail to see why the Court deems it more appropriate to write into the Constitution its own abstract notions of how best to handle the narcotics problem, for it obviously cannot match either the States or Congress in expert understanding.”

My Opinion:

In this case, I agree with the majority opinion. People can get very dependent and addicted to certain drugs. There have been many situations in which one’s addiction was out of their control. Some addictions are not necessarily the person’s fault. For example, if someone was injured and prescribed painkillers, and the patient unknowingly grew dependent on the painkillers, that’s not their fault and they should not be punished with 90 days in jail for something like that. The punishments should vary accordingly to the situation and not be based off of the fact that a person is addicted to a certain narcotic. 90 days in jail for an unintentional addiction would be a violation of the Eighth Amendment, because they should not be penalized for something like that with something so extreme. That would be categorized under being a “cruel and unusual punishment.”

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


United States v. Bajakajian: Forfeiture of Sum of Money; Excessive Fines Clause (06/22/1998)

United States v. Bajakajian

Does the forfeiture of $357,144 in cash, a sum involved in the offense of failure to report property in excess of $10,000 while attempting to leave the country, violate the Eighth Amendment’s Excessive Fines Clause?

Argued: 11/04/1997

Decision Date: 06/22/1998

Decision Record: 5-4; yes

Justices Majority: John Paul Stevens, David Souter, Clarence Thomas, Ruth Ginsburg, Stephen Breyer

Justices Dissenting: William Rehnquist, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy

Effect of the Decision

This case clarified that a forfeiture of a sum as great as $357,144 in cash for an offense like failure to report property in excess of $10,000 while attempting to leave the country is a violation of the Excessive Fines Clause, and is considered an unreasonable punishment.

In Favor

In the representation of the side of the United States, attorney Irving L., Gornstein said, “Respondent was about to board a flight to Syria when a Customs inspector informed him that he was required to file a currency report if he was taking more than 10,000 dollars with him.

Respondent claimed that he was taking less than 10,000 dollars and he therefore did not file a currency report.

Customs inspectors searched respondent and his possessions and found more than 350,000 dollars in cash.

Respondent subsequently pleaded guilty to wilfully failing to file a currency report as he was about to transport more than 350,000 dollars outside this country.

For that offense, Congress has mandated forfeiture of the unreported currency.

The Court of Appeals for the Ninth Circuit held, however, that the forfeiture of any of that currency would constitute an excessive fine.

The unreported currency is an instrumentality of a reporting offense and may be forfeited as such without violating the Excessive Fines Clause, and second, even if it is not an instrumentality, its forfeiture is a permissible punishment for what is a serious criminal offense.

The manner of satisfying the Excessive Fines Clause is by showing that it is property that’s seized… one way of satisfying it, it is showing that the property that is seized is in fact an instrumentality of the offense, and there… questions may arise about whether it has a sufficiently close connection to the offense to be classified properly as an instrumentality, but once it is, then that would satisfy the Excessive Fines Clause.”


Then in opposition, representing Bajakajian, attorney James E. Blatt claimed, “This case, a criminal in personam matter, is here because a district court determined that forfeiture of 357,144 dollars would be grossly disproportionate under the Eighth Amendment for a failure-to-declare offense.

The decision was based on the following factual findings by the district court: that the money involved was lawful money for a lawful purpose; that the crime was committed in reference to cultural differences, and that the lies that Mr. Bajakajian stated grew out of fear.

He was a minority there, an Armenian, and where he grew up he was very frightened and afraid of the Government in reference to moneys taken in and out.

When he left this country to pay a lawful debt, and he was going to Cyprus, not to Syria, he thought that he would be harmed, or the money might be taken from him if he showed how much money he had.

We indicated that to the district court.

The district court took that into consideration, and took also into consideration the lies that he made, which were primarily out of fear, when it came up with a grossly disproportionate analysis.

It’s a factor that has to be considered in reference to whether the money was lawful, and for a lawful purpose, because it relates to the culpability.

If one lies not… if one lies because he or she is not involved in a criminal enterprise, but because they are frightened, and we’re not trying to excuse the culpability of Mr. Bajakajian, but it’s a factor for a court to consider in reference to punishment.”


The majority opinion, written by Justice Clarence Thomas, said, “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 8—9. They therefore indicate nothing about the proportionality of the punitive forfeiture at issue here. Ibid.

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”). Similar statutes were passed in later Congresses.

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 contention that this provision was “penal,” stating instead that it was “fully as remedial in its character, designed as plainly to secure [the] rights [of the Government], as are the statutes rendering importers liable to duties.” 13 Wall., at 546. The Court reasoned:

‘When foreign merchandise, subject to duties, is imported into the country, the act of importation imposes on the importer the obligation to pay the legal charges. Besides this the goods themselves, if the duties be not paid, are subject to seizure . . . . Every act, therefore, which interferes with the right of the government to seize and appropriate the property which has been forfeited to it . . . is a wrong to property rights, and is a fit subject for indemnity.’Id., at 546.

Significantly, the fact that the forfeiture was a multiple of the value of the goods did not alter the Court’s conclusion:

‘The act of abstracting goods illegally imported, receiving, concealing, or buying them, interposes difficulties in the way of a government seizure, and impairs, therefore, the value of the government right. It is, then, hardly accurate to say that the only loss the government can sustain from concealing the goods liable to seizure is their single value … . Double the value may not be more than complete indemnity.’ Id., at 546—547.

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. They were thus no different in purpose and effect than the in rem forfeitures of the goods to whose value they were proportioned. Cf. One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237 (1972) (per curiam) (customs statute requiring the forfeiture of undeclared goods concealed in baggage and imposing a monetary penalty equal to the value of the goods imposed a ‘remedial, rather than [a] punitive sanctio[n]’). By contrast, the full forfeiture mandated by §982(a)(1) in this case serves no remedial purpose; it is clearly punishment. The customs statutes enacted by the First Congress, therefore, in no way suggest that §982(a)(1)’s currency forfeiture is constitutionally proportional.”

Then, in the dissenting side, Justice Anthony Kennedy wrote, “The Court’s holding may in the long run undermine the purpose of the Excessive Fines Clause. One of the main purposes of the ban on excessive fines was to prevent the King from assessing unpayable fines to keep his enemies in debtor’s prison. See Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 267 (1989); 4 W. Blackstone, Commentaries on the Laws of England 373 (1769) (‘[C]orporal punishment, or a stated imprisonment, … is better than an excessive fine, for that amounts to imprisonment for life. And this is the reason why fines in the king’s court are frequently denominated ransoms … .’) Concern with imprisonment may explain why the Excessive Fines Clause is coupled with, and follows right after, the Excessive Bail Clause. While the concern is not implicated here–for of necessity the money is there to satisfy the forfeiture–the Court’s restrictive approach could subvert this purpose. Under the Court’s holding, legislators may rely on mandatory prison sentences in lieu of fines. Drug lords will be heartened by this, knowing the prison terms will fall upon their couriers while leaving their own wallets untouched.

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 8, 18, and n. 16; but see ante, at 9, 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.”

My Opinion:

In this case, I disagree with the majority opinion. Bajakajian committed an offense and broke the law by attempting to leave the country with an excess of $10,000. He brought $357,144 in cash with him, which is a violation of 31 U.S.C. Section 5316. According to 18 U.S.C. Section 982, Bajakajian was supposed to turn in all the money that he illegally attempted to bring with him. This is not a violation of the Eighth Amendment’s Excessive Fines Clause, because the money the respondent should have turned in cannot be considered a “fine.” Under the law, he should have forfeited his entire sum of $357,144 in cash. This wouldn’t have been difficult for Bajakajian, seeing as he already had the money with him in cash. Even if this were considered a fine, it cannot be seen as “excessive,” because 31 U.S.C. Section 5316 clearly states that no sum of money over $10,000 in cash can leave the United States. This law was violated by the respondent. Also, 18 U.S.C. Section 982 explains that any sums of money that tries to leave the US can be confiscated. So under this law, the forfeiture of Bajakajian’s sum of $357,144 was not a violation of the Eighth Amendment. It simply cannot be declared “unconstitutional” under the Excessive Fines Clause if the sum of money asked to be turned in was not excessive nor a fine. All actions performed by the government in this case was rightfully justified.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right