Austin v. United States Page 2

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Media for Austin v. United States

Audio Transcription for Oral Argument - April 20, 1993 in Austin v. United States

Richard L. Johnson:

There's another quote also that we indicate from a American Criminal Law Review article in which it indicates that in August of 1990, the U.S. Attorney General warned U.S. attorneys that the Department was far short of its projected $470 million in forfeiture deposits and urged them to increase the efforts in order to make the budget goal during fiscal year 1990.

And this was in August of 1990, and Mr. Austin's property--

Byron R. White:

What does this prove?

Richard L. Johnson:

--Well, it shows I think that there should be some sort of check on the Government, just as Justice Scalia says it makes sense to scrutinize Government actions more closely.

What it indicates is that there is a possibility for overreaching.

William H. Rehnquist:

And so, the Constitution automatically erects a shield against it?

Richard L. Johnson:

I think that the Constitution protects individuals from Government overreaching if that happens, if there's a possibility of it.

And there is the possibility of it under this forfeiture statute.

William H. Rehnquist:

Well, what do you do with a case like Calero-Toledo which says that even an innocent owner... and no one contends, I take it, that your client is innocent.

Richard L. Johnson:

No.

William H. Rehnquist:

Even an innocent owner can... the property can be taken under traditional forfeiture law.

Richard L. Johnson:

Calero-Toledo needs to be distinguished and possibly even looked at again I think.

Number one, in--

William H. Rehnquist:

Well, what's the matter with it?

It always struck me as a perfectly good case.

Richard L. Johnson:

--Well, Calero-Toledo, the Eighth Amendment wasn't raised.

That would be one point.

Secondly, although Calero-Toledo indicates, as you said, that in rem forfeiture really shouldn't deal with the guilt or innocence of the owner, in fact, it does establish an innocent owner exception.

And thirdly, forfeitures at the time of Calero-Toledo weren't the same as they are now.

The forfeitures that the Government is having under 21 U.S.C. 881 (a)(4) and (a)(7) are far in excess of what was happening back at the time of Calero-Toledo.

Antonin Scalia:

What difference does it make how much money you're talking about if it's money being taken from an innocent person?

How can disproportionality have any meaning once you acknowledge that the car or the ship or the facility that belongs to a totally innocent person may be taken?

Even if it's only worth $100, that's vastly disproportionate to his guilt.

I assume proportionality means proportional to guilt.

Richard L. Johnson:

Correct.

Antonin Scalia:

But all these in rem things at common law could be imposed against a totally innocent person.

I think... doesn't that conclusively establish that there's no proportionality requirement for in rem takings?

Richard L. Johnson:

I think that in rem forfeiture under common law and as... at the time that the Framers knew it is different than the forfeiture that we're experiencing today.

I think that the cases established that in rem forfeiture at that time was against ships, dealt with piracy, dealt with violations of the customs laws--

Antonin Scalia:

Cars.