Methods to Determine the ''Gravity of the Offense''
In Commonwealth v. Real Property & Improvements Commonly Known as 5444 Spruce Street, 574 Pa. 423, 832 A.2d 396 (2003), at footnote seven, our Supreme Court listed the various other methods that other courts have used to determine the "gravity of the offense" as follows:
Three jurisdictions have applied a multi-faceted measuring of the property forfeited "to the gravity of a defendant's offense." Bajakajian, 524 U.S. at 334, 118 S. Ct. 2028.
United States v. 3814 NW Thurman Street, Portland, Or., a Tract of Real Property, 164 F.3d 1191 (9th Cir.1999) (considering the culpability of the offender, other penalties and the extent of the harm caused);
Wilson v. Commissioner of Revenue, 656 N.W.2d 547, 555 (Minn.2003) (same);
United States v. Wagoner County Real Estate, 278 F.3d 1091, 1101 (10th Cir.2002) (considering the benefit to the defendant, the value of the forfeiture and the connection to the crime).
Other jurisdictions compare the value of the property to a subjective estimation of the gravity of the offense.
Ex parte Kelley, 766 So. 2d 837, 840 (Ala. 1999) (forfeiting a $ 30,000 Pontiac Grand Prix excessive under the Bajakajian standard when four tablets of the controlled substance aminorex and 6.2 grams of marijuana had been found in the automobile);
State ex rel. Utah Air Quality Bd. v. Truman Mortensen Family Trust, 2000 UT 67, 8 P.3d 266, 274 (Utah 2000) (fine of $ 23,000 not grossly disproportionate to violations of air quality regulations regarding asbestos removal);
State v. Klawonn, 609 N.W.2d 515, 518 (Iowa 2000) ($ 150,000 fine for victim restitution was not excessive in an involuntary manslaughter case);
United States v. Wyly, 193 F.3d 289, 303 (5th Cir.1999) (forfeiting $ 4 million in assets of a company which bribed the highest ranking law enforcement officer in the parish, manipulated financial accounts, and laundered money was not grossly disproportionate);
United States v. Real Property Known and Numbered as 415 East Mitchell Ave., Cincinnati, Ohio, 149 F.3d 472, 478 (6th Cir.1998) (forfeiting a home valued at $ 220,000 was not disproportionate for a significant marijuana cultivation operation).
A more objective standard is found in the jurisdictions which look first to the legislative body which has specified the maximum permissible fine for a given offense, holding that if the value of forfeited property is within the range of fines prescribed by Congress, a strong presumption arises that the forfeiture is constitutional.
United States v. 817 N.E. 29th Drive, Wilton Manors, Fla., 175 F.3d 1304, 1309 (11th Cir.1999) (upholding fine of $ 500,000 for dishonest mortgage brokers);
United States v. Newsome, 322 F.3d 328, 342 (4th Cir. 2003) (upholding a restitution order of almost $ 250,000 when the fine could have been twice as large);
United States v. Sherman, 262 F.3d 784, 795 (8th Cir.2001) (forfeiting a $ 750,000 property is not excessive when the potential fine was $ 4 million);
United States v. Moyer, 313 F.3d 1082, 1086 (8th Cir.2002) (forfeiture of half the amount of the permissible fine is "presumptively not excessive.");
United States v. Dicter, 198 F.3d 1284, 1292 (11th Cir.1999) (same). a minority of jurisdictions, to date, have considered the effect of the forfeiture on the defendant. See e.g. State v. Real Property at 633 East 640 North, Orem, Utah, 2000 UT 17, 994 P.2d 1254, 1257-59 (Utah 2000).
That approach has been specifically rejected in State v. Izzolena, 609 N.W.2d 541, 551 (Iowa 2000), and 817 N.E. 29th Drive, Wilton Manors, 175 F.3d at 1311. Spruce Street, 832 A.2d at 403.