concluding in the forfeiture context that a penalty “on the order of fifty times the fine authorized” was grossly disproportionate and excessive
How later courts described this case
- concluding in the forfeiture context that a penalty “on the order of fifty times the fine authorized” was grossly disproportionate and excessive
Written by the judges who cited it.
Distinguished
Distinguished by Washington Gas Light Co. v. Public Service Commission, 2013 D.C. App. LEXIS 51 (2013)
We disagree with Washington Gas that the circumstances in United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), and One 1995 Toyota Pick-Up Truck, 718 A.2d 558, two cases in which individuals were ordered to forfeit large sums, are analogous.
The opinion
FARRELL, Associate Judge,
concurring.
I join the court’s opinion on the understanding that it reverses the forfeiture based *567 upon a conviction (1) under the soliciting statute in existence at the time of appellant’s conduct (as the court’s footnote 3 points out, the D.C. Council has since increased the penalties considerably at least for repeated acts of soliciting) and (2) of a first offender for a single act of solicitation. Cf. Austin v. United States, 509 U.S. 602, 627-28 , 113 S.Ct. 2801 , 125 L.Ed.2d 488 (1993) (Scalia, J., concurring in part and concurring in the judgment) (forfeiture of a building, for example, “in which an isolated drug sale happens to occur” would be an excessive fine); United States v. Chandler, 36 F.3d 358, 365 (4th Cir.1994) (one factor in analysis is whether illegal use of the instrumentality “was an isolated event or had been repeated”). At the same time, I am uneasy about the exclusive or near-exclusive focus apparently required by Bajakajian on proportionality between the value of appellant’s truck and the maximum fine he received or could have received. In theory that could mean that “Johns” who enter the District to solicit prostitution from new and/61or more expensive conveyances stand a better chance of keeping the instrumentality than do those of lesser means. * A practical response to our decision today would seem to be for the Council to consider a substantially augmented criminal fine, backed up by a lien, for the aggravating circumstance of use of any motor vehicle in the act of soliciting.
The maimer in which some courts do "rough justice” by discounting the value of the vehicle by the probable effect its loss will have on the particular owner’s livelihood hardly seems an improvement. We are thus left with appellant’s unsupported suggestion on brief that the District does not bother to forfeit less valuable vehicles anyway.