Disproportionate Forfeiture

"The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. . . . a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." (Bajakajian, supra, 524 U.S. at p. 334 [118 S. Ct. at p. 2036].) Bajakajian adopted a gross disproportionality standard articulated in cruel and unusual punishments clause precedent to hold that a reviewing court "must compare the amount of the forfeiture to the gravity of the defendant's offense. If the amount of the forfeiture is grossly disproportional to the gravity of the defendant's offense, it is unconstitutional." ( Id. at pp. 336-337 [118 S. Ct. at pp. 2037-2038].) The court assessed disproportionality by examining the nature of the crime (willful failure to report the removal of currency from the country) and its criminal punishment, the harm the defendant had caused, and other penalties for like offenses. ( Id. at pp. 337-339 [118 S. Ct. at pp. 2038-2039].) The forfeiture in that case--the entire $ 357,144 the defendant had been carrying through an airport--was held grossly disproportionate. Parenthetically, the court noted that the defendant had not urged that "his wealth or income [were] relevant to the proportionality determination or that full forfeiture would deprive him of his livelihood." ( Id. at p. 340, fn. 15 [118 S. Ct. at p. 2039].) Other authority has since held, and we agree, that "in the case of fines, as opposed to forfeitures, the defendant's ability to pay is a factor under the Excessive Fines Clause." ( U.S. v. Lippert (8th Cir. 1998) 148 F.3d 974, 978.) " 'Proportionality is likely to be the most important issue in a forfeiture case, since the claimant-defendant is able to pay by forfeiting the disputed asset. In imposing a fine, on the other hand, ability to pay becomes a critical factor.' . . . ." ( People ex rel. State Air Resources Bd. v. Wilmshurst, supra, 68 Cal. App. 4th at p. 1350, quoting U.S. v. Hines (8th Cir. 1996) 88 F.3d 661, 664.)