344
Kennedy, J., dissenting
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.
* * *
For the foregoing reasons, the full forfeiture of respond-ent's currency would violate the Excessive Fines Clause. The judgment of the Court of Appeals is
Affirmed.
Justice Kennedy, with whom The Chief Justice, Justice OTMConnor, and Justice Scalia join, dissenting.
For the first time in its history, the Court strikes down a fine as excessive under the Eighth Amendment. The decision is disturbing both for its specific holding and for the broader upheaval it foreshadows. At issue is a fine Congress fixed in the amount of the currency respondent sought to smuggle or to transport without reporting. If a fine calibrated with this accuracy fails the Court's test, its decision portends serious disruption of a vast range of statutory fines. The Court all but says the offense is not serious anyway. This disdain for the statute is wrong as an empirical matter and disrespectful of the separation of powers. The irony of the case is that, in the end, it may stand for narrowing constitutional protection rather than enhancing it. To make its rationale work, the Court appears to remove important classes of fines from any excessiveness inquiry at all. This, too, is unsound; and with all respect, I dissent.
I
A
In striking down this forfeiture, the majority treats many fines as "remedial" penalties even though they far exceed the
"punishment"), is clearly punitive--"would have to [be treated] as nonpunitive," post, at 346.
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