Publication Date



To pass constitutional muster, fines-of which punitive
forfeitures are one type-must not be grossly
disproportional to the gravity of the offense from which
they arise. Currently, the United States Courts of Appeals
exhibit a split in their treatment of forfeiture of proceeds
acquired incident to a criminal enterprise. A majority of
courts to address the issue have held that proceeds
forfeitures are not punitive fines and thus escape
constitutional scrutiny. Other courts, including the
Fourth Circuit in the recent case United States v.
Jalaram, Inc., have concluded that proceeds forfeiture, like

that of instrumentalities of a crime, is punitive and
therefore subject to constitutional analysis.
This Note argues that the conclusion that proceeds
forfeiture is proportional has compelled, in some courts, a
misstated conclusion that it is also nonpunitive and
therefore beyond the reaches of the Eighth Amendment's
Excessive Fines Clause. Courts finding proceeds
forfeitures necessarily nonpunitive because they are
proportional conflate two conceptually separate
constitutional requirements: that punitive forfeitures be
subject to the Excessive Fines Clause and that, in
accordance with that Clause, forfeitures not be grossly
disproportional to the offense.
In most cases, this imprecise application of Eighth
Amendment jurisprudence will be inconsequential.
However, this Note illustrates the necessity of the two-
prong approach in cases of joint and several liability,
where the misapplication could have grave consequences.