Georgia Supreme Court Examines Question of Excessiveness in Forfeiture Cases

FORFEITURE January 1995

The Georgia Supreme Court ruled that a three-part measure should be used in forfeiture cases to determine whether the amount of the property forfeited constitutes an excessive punishment to the defendant (Thorp v. State, GA, No. S94Q1017, Dec. 5, 1994; BNA Criminal Practice Manual, Dec. 21, 1994, p. 623).

As was reported in the November 1994 issue of NewsBriefs, the U.S. Supreme Court in Austin v. U.S. (53 CrL 2274; 113 S.Ct. 2801 (1993)) ruled that lower courts should suggest ways to gauge the excessiveness of forfeiture as punishment.

The Georgia Supreme Court ruled that courts hearing state civil forfeiture cases should examine:

1. the seriousness of the offense compared to the harshness of the penalty,
    
2. the "instrumentality" of the property in the offense, or how "guilty" the property was in the offense, and
    
3. the degree to which "the criminal activity involving the defendant property was extensive in terms of time and/or spatial use."

The court added that while lower state courts should use these three conditions as a minimum, other factors may be used to decide excessiveness.