Cite as: 524 U. S. 321 (1998)
Opinion of the Court
The Government specifically contends that the forfeiture of respondent's currency is constitutional because it involves an "instrumentality" of respondent's crime.8 According to the Government, the unreported cash is an instrumentality because it "does not merely facilitate a violation of law," but is " 'the very sine qua non of the crime.' " Brief for United States 20 (quoting United States v. United States Currency in the Amount of One Hundred Forty-Five Thousand, One Hundred Thirty-Nine Dollars, 18 F. 3d 73, 75 (CA2), cert. denied sub nom. Etim v. United States, 513 U. S. 815 (1994)). The Government reasons that "there would be no violation at all without the exportation (or attempted exportation) of the cash." Brief for United States 20.
Acceptance of the Government's argument would require us to expand the traditional understanding of instrumentality forfeitures. This we decline to do. Instrumentalities historically have been treated as a form of "guilty property" that can be forfeited in civil in rem proceedings. In this case, however, the Government has sought to punish respondent by proceeding against him criminally, in personam, rather than proceeding in rem against the currency. It is therefore irrelevant whether respondent's currency is an instrumentality; the forfeiture is punitive, and the test for
8 Although the term "instrumentality" is of recent vintage, see Austin v. United States, 509 U. S., at 627-628 (Scalia, J., concurring in part and concurring in judgment), it fairly characterizes property that historically was subject to forfeiture because it was the actual means by which an offense was committed. See infra this page; see, e. g., J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505, 508-510 (1921). "Instrumentality" forfeitures have historically been limited to the property actually used to commit an offense and no more. See Austin v. United States, supra, at 627-628 (Scalia, J., concurring in part and concurring in judgment). A forfeiture that reaches beyond this strict historical limitation is ipso facto punitive and therefore subject to review under the Excessive Fines Clause.
333
Page: Index Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 NextLast modified: October 4, 2007