Purging the Cruel and Unusual

The Autonomous Excessive Fines Clause and Desert-Based Constitutional Limits on Forfeiture After States v. Bajakajian

Within the past twenty years, asset forfeiture has become an im-portant tool in fighting crime. The Supreme Court recently clarified important constitutional issues regarding asset forfeiture in its 1998 opinion United States v. Bajakajian. In this piece, Professor Johnson explores the nuances and implications of the Supreme Court\'s hold-ings within the framework of the Eighth Amendment.More specifically, the author explores the case law treating the Excessive Fines Clause. In his extensive critique of the Bajakajian de-cision, Professor Johnson then clarifies the arguments put forth in both the majority and dissenting opinions. He asserts that the propor-tionality review the majority adopted in Bajakajian is implicitly a case-specific, desert-based limitation. Finally, the author argues that this standard is flawed because of its extreme deference to legislative decisionmaking and the blurring of the Excessive Fines Clause and the Cruel and Unusual Punishments Clause that it evidences. Thus the Court\'s decision in Bajakajian has the potential to undermine mean-ingful judicial review of forfeitures under the Excessive Fines Clause.* Associate Professor, Oklahoma City University School of Law. J.D., University of Michigan, 1988. Financial support for this research was provided by the Kerr Foundation and the Oklahoma City University School of Law.

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