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The Excessive Fines Clause of the Eighth Amendment - Chapter 28 - Asset Forfeiture Law in the United States - Third Edition
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22094
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Originally from Asset Forfeiture Law in the United States, Third Edition § 28-1 Overview In Chapter 2, we discussed the historical development of the view that civil and criminal forfeitures are subject to the Excessive Fines Clause of the Eighth Amendment. In this chapter, we will examine how the courts have been applying the guidance that the Supreme Court provided on this issue in its seminal 1998 decision, United States v. Bajakajian. We begin with the question whether the Eighth Amendment applies to all forfeitures, civil or criminal, or whether there is a subset of forfeitures, such as the civil forfeiture of “instrumentalities,“ that fall outside of the Excessive Fines Clause. We will then discuss the test that the courts have developed under Bajakajian for determining if a forfeiture is “grossly disproportional to the gravity of the offense," and we will see how that test applies to different categories of property, such as the proceeds of the offense, unreported currency, instrumentalities and facilitating property, and the interests of third parties. Finally, we will conclude with a discussion of the procedures enacted by Congress and developed by the courts for determining whether a forfeiture violates the Eighth Amendment. Among other things, we will discuss who has standing to raise Eighth Amendment objections to a forfeiture, when the objection may be made in the course of the forfeiture proceeding, who has the burden of proof and what that burden might be, and whether the Eighth Amendment issue is for the court or the jury.
Stefan D. Cassella, as a federal prosecutor, was one of the federal government's leading experts on asset forfeiture law for over thirty years, and now serves as an expert witness and consultant to law enforcement agencies and the financial sector as the CEO of AssetForfeitureLaw, LLC.
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