354
Kennedy, J., dissenting
punished all cash smuggling or nonreporting, authorizing single penalties for the offense alone and double penalties for the offense coupled with proof of other crimes. See 31 U. S. C. §§ 5322(a), (b). The requirement of willfulness, it judged, would be enough to protect the innocent. See ibid. The majority second-guesses this judgment without explaining why Congress' blanket approach was unreasonable.
Money launderers will rejoice to know they face forfeitures of less than 5% of the money transported, provided they hire accomplished liars to carry their money for them. Five percent, of course, is not much of a deterrent or punishment; it is comparable to the fee one might pay for a mortgage lender or broker. Cf. 15 U. S. C. § 1602(aa)(1)(B) (high-cost mortgages cost more than 8% in points and fees). It is far less than the 20%-26% commissions some drug dealers pay money launderers. See Hearing on Money Laundering and the Drug Trade before the Subcommittee on Crime of the House Judiciary Committee, 105th Cong., 1st Sess., 62 (1997) (testimony of M. Zeldin); Andelman, The Drug Money Maze, 73 Foreign Affairs 108 (July/Aug. 1994). Since many couriers evade detection, moreover, the average forfeiture per dollar smuggled could amount, courtesy of today's decision, to far less than 5%. In any event, the fine permitted by the majority would be a modest cost of doing business in the world of drugs and crime. See US/Mexico Bi-National Drug Threat Assessment 84 (Feb. 1997) (to drug dealers, transaction costs of 13%-15% are insignificant compared to their enormous profit margins).
Given the severity of respondent's crime, the Constitution does not forbid forfeiture of all of the smuggled or unreported cash. Congress made a considered judgment in setting the penalty, and the Court is in serious error to set it aside.
III
The Court's holding may in the long run undermine the purpose of the Excessive Fines Clause. One of the main
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