348
Kennedy, J., dissenting
and incidental objects, when the Court invokes the distinction it gets the results backwards.
II
Turning to the question of excessiveness, the majority states the test: A defendant must prove a gross disproportion before a court will strike down a fine as excessive. See ante, at 334. This test would be a proper way to apply the Clause, if only the majority were faithful in applying it. The Court does not, however, explain why in this case forfeiture of all of the cash would have suffered from a gross disproportion. The offense is a serious one, and respondent's smuggling and failing to report were willful. The cash was lawful to own, but this fact shows only that the forfeiture was a fine; it cannot also prove that the fine was excessive.
The majority illuminates its test with a principle of deference. Courts " 'should grant substantial deference to the broad authority that legislatures necessarily possess' " in setting punishments. Ante, at 336 (quoting Solem v. Helm, 463 U. S. 277, 290 (1983)). Again, the principle is sound but the implementation is not. The majority's assessment of the crime accords no deference, let alone substantial deference, to the judgment of Congress. Congress deems the crime serious, but the Court does not. Under the congressional statute, the crime is punishable by a prison sentence, a heavy fine, and the forfeiture here at issue. As the statute makes clear, the Government needs the information to investigate other serious crimes, and it needs the penalties to ensure compliance.
A
By affirming, the majority in effect approves a meager $15,000 forfeiture. The majority's holding purports to be narrower, saying only that forfeiture of the entire $357,144 would be excessive. Ante, at 337, and n. 11. This narrow holding is artificial in constricting the question presented for this Court's review. The statute mandates forfeiture of
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