HAIGHT, Senior District Judge:
This is an in rem civil action wherein Plaintiff United States of America ("the Government") seeks forfeiture of 5 Reynolds Lane, Waterford, Connecticut ("the Property") pursuant to 21 U.S.C. § 881(a)(7) because the Property was used to commit, or facilitate the commission of, a violation of the Controlled Substances Act, 21 U.S.C. §§ 801 et seq. ("CSA").
The Government's theory of the case is that it is entitled by the statutory scheme to forfeiture of the Property. The Claimants' theory of the case is that forfeiture of their home would violate the Constitution's prohibition of excessive fines.
In a Ruling reported at 895 F.Supp.2d 305 (D.Conn.2012) ("Marder I"), familiarity with which is assumed, the Court granted partial summary judgment to the Government, and held the Property is subject to forfeiture because it was in fact used to facilitate a violation of § 841(a) of the CSA, specifically, the manufacture of marijuana. In a subsequent Ruling reported at 909 F.Supp.2d 131 (D.Conn.2012) ("Marder II"), familiarity with which is also assumed, the Court set the case down for a bench trial on the issue of "whether a forfeiture of the Claimants' interests in the Defendant Property passes muster under the Excessive Fines Clause" of the Eighth Amendment to the United States Constitution. 909 F.Supp.2d at 136.
That bench trial was held on April 9, 2013. Counsel for the Government and the Claimants summed up after closing of the proof. The Court now enters the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a), Federal Rules of Civil Procedure.
1. The Property is a single-family residential building with a detached garage, located at 5 Reynolds Lane in the Town of Waterford, Connecticut. The parties stipulated at trial that "the current fair market value of the 5 Reynolds Lane, Waterford, Connecticut property is $200,000." Tr. 11-12.
2. The Claimants do not dispute that, as the Government alleges, during the relevant times Claimants used the Property to cultivate marijuana plants and manufacture the consumable marijuana that the plants, in the natural order of things, produced. In consequence, these Findings set forth those underlying facts in somewhat abbreviated form, but in sufficient detail to furnish the background for Claimants' contention that forfeiture of their home by the Government violates the Excessive Fines Clause of the Eighth Amendment.
3. Claimant Seth Marder (sometimes hereinafter "Seth") was born in Kansas City, Missouri on September 28, 1961, and
4. Seth had smoked marijuana when in high school, quit for ten years, and started again at about age 28, at which time, he testified at his deposition, "I knew that it helped my symptoms but I would say it was recreational because there were no laws on the books in California that said it was — you could have medical marijuana." Dep. Tr. 17. That changed in 1996, when California passed a statute legalizing the use of marijuana for medical reasons, on a physician's written approval. Seth began his legalized medical use of marijuana in 1996 and continued that use thereafter; Exhibit 1 to his deposition is a Physician's Statement dated May 25, 2004, signed by Robert E. Sullivan, M.D., which states, inter alia, that Seth Marder, a resident of Yreka, California, "has a serious medical condition which, in my professional opinion, may benefit from the use of medical cannabis." Seth signed a Patient's Declaration at the bottom of the document which acknowledges his understanding that "cannabis remains illegal under federal law."
5. Seth Marder married Beth Marder (nee Beth Greenhalgh, sometimes hereinafter "Beth") in California in June 2003. Prior to and after their marriage, the Marders lived together in a house in Yreka that was in Seth's name only. Seth had no regular employment. Beth was working part time on the faculty of the Laurel Springs School, a private school in southern California, and part time for the California Department of Fish and Game. She still teaches at Laurel Springs, by means of online technology.
6. For as long as Beth knew Seth, Seth was growing and using marijuana for medicinal reasons, specifically, to control the mental disabilities attendant upon his underlying conditions. Seth cultivated marijuana plants at the home the Marders occupied in Yreka. Beth assisted him in that cultivation. Seth sold quantities of marijuana that exceeded his personal requirements to "marijuana clubs" in the Bay Area of California, which came into wider availability when California passed its 1996 law legalizing the use of marijuana for medical reasons. Seth Marder estimated at his deposition that from about the year 2000 until the Marders moved from California to Connecticut, he made approximately $100,000 by selling marijuana to marijuana clubs.
7. In July of 2005, the Marders sold the Yreka, California house and moved to the Property at 5 Reynolds Lane, Waterford, Connecticut, which they purchased jointly. Waterford had the advantage of being centrally located between the Cape Cod, Massachusetts home of Beth's mother (who was terminally ill) and the home of Seth's mother in Greenwich, Connecticut. The Property is accurately described in Marder I as "a single family two story wood and cement building with a detached barn-style garage." 895 F.Supp.2d at 307.
8. Before departing for Connecticut, the Marders sold the Yreka, California house and held a yard sale for some of its contents. But the equipment used to grow and cultivate marijuana was not sold. The Marders kept that equipment and transported it to Connecticut, intending to grow and cultivate marijuana in their new home: an intention they promptly acted upon. Beth Marder testified that the Marders started growing marijuana at the Property
9. The Marders used a considerable amount of marijuana-growing equipment. The equipment included, for instance, 16 large devices referred to in the evidence as "white hooded lamps" or "grow lights." These lamps were placed in the Property's garage. They cast a strong light upon marijuana plants and seedlings positioned beneath them, and assisted their growth. Moreover, each lamp was accompanied by a device called a "ballast," whose necessity for the operation was explained by Beth Marder on cross-examination by counsel for the Government:
Tr. 94. As this case exemplifies, the unusually high electrical consumption triggered by such operations can strengthen the suspicion of surveilling law enforcement officers that marijuana cultivation may be going on at a particular house.
10. Jon Rubinstein, an experienced DEA agent who participated in the search of the Property on March 18, 2009 under the circumstances related infra, surveyed the garage with its ranks of grow lights and ballasts, together with the other paraphernalia of marijuana cultivation (boxes, plants, seedlings, cut leaves, hoses, packaging, etc.), and praised the Marders' achievement at trial, with words they probably heard with mixed emotions:
Tr. 179-180.
11. The death knell for the Marders' "operational grow" was struck when during the week of March 9, 2009, an acquaintance visited the Property, observed the cultivation, consumption and sharing of marijuana, and passed that information on to DEA agents assigned to the agency's New Haven office. The agents designated their informant as "CC" for "concerned citizen"; the Marders would undoubtedly employ a different phrasing. This tip touched off a joint investigation conducted by DEA agents and Waterford Police Department officers which resulted in a State court judge's issuance of a search warrant for the Property on March 18, 2009. The full particulars of this investigation and warrant issuance are set forth in Marder I, 895 F.Supp.2d at 307-308, and are incorporated by reference in these Findings of Fact.
13. There was a considerable body of evidence elicited at trial about the amount of marijuana discovered and seized at the Property during the search on March 18, 2009. I need not make detailed Findings of Fact on this subject because the presence of the relevant amount for CSA purposes is undisputed. Specifically, the Government sought and obtained summary judgment holding the Property subject to forfeiture on the basis of the Marders' possessing and cultivating "100 or more marijuana plants regardless of weight," one of the several specifications of a CSA violation. 21 U.S.C. § 841(b)(1)(B)(vii). During the proceedings culminating in the Court's ruling in Marder I, the Government asserted and the Claimants admitted that "approximately 100 marijuana seedling plants were discovered by law enforcement officers in the laundry room of the Defendant property," and "approximately 100 marijuana plants in various stages of growth" were discovered "[i]n the barn-style garage on the Defendant Property." 895 F.Supp.2d at 308. I accept those undisputed numbers of plants, totaling about 200, for the purpose of these Findings.
14. Seth Marder testified at his deposition that he never sold marijuana from the Property to anyone, and marijuana was never shipped from the Property to any other individual. Dep. Tr. 33-34. On that point, this exchange occurred during the deposition:
Dep. Tr. 34-35. Seth's response as transcribed is grammatically odd, but its clear import is: "Yes, that is my testimony, and those are the facts." Beth Marder testified at trial that neither Seth nor she ever sold to others any of the marijuana they grew at the Property, and they never profited financially from any marijuana they grew there. Tr. 38-39. I accept the Marders' testimony on this aspect of the case. The Government appears to view these disclaimers skeptically, its doubts arising from the amount of marijuana discovered at the Property (house and garage), and packaging material which, to agent Rubinstein's trained eye, looked like the kind that might be used to ship marijuana from one place to another. However, neither the federal DEA nor the local Waterford police took any follow-up investigatory steps to determine if the Marders were selling or distributing marijuana to others, and there is no evidence in the record in direct contradiction of the Marders' testimony. The Government may harbor suspicion, but suspicion is not proof.
15. The case for the Marders is that both smoked marijuana for medical reasons. Seth Marder's deposition testimony with respect to his own medical needs was noted in ¶ 4, supra. Over Government objection, Beth Marder testified on direct examination at trial:
Tr. 38, 40-41.
16. Two observations may be made about the testimony quoted in ¶ 15. The psychiatrist prescribing marijuana for Seth Marder practiced in California, where the Marders lived at the time. The use of marijuana for medical reasons was legal in California, but it is illegal in Connecticut, and no Connecticut physician could have prescribed use of the substance. And the careful reader will have noticed that Beth Marder, correcting her trial counsel, described her smoking marijuana in the past tense. The Marders assert that they stopped growing and smoking marijuana at the Property after the search and seizure. At the beginning of his deposition Seth Marder, responding to routine questions about his current health, testified that he was under the influence of prescribed medications; this exchange then occurred:
Dep. Tr. 8-9. I accept the Marders' testimony on this point, and find on this record that since the search and seizure on March 18, 2009, the Marders have neither grown nor smoked marijuana at the Property. That testimony is credible, uncontradicted by any other evidence in the record, and inherently plausible. The Marders are intelligent people. They would not be inclined to resume their marijuana-eased lifestyle after coming to such prominent attention in the minds and eyes of federal and local law enforcement agencies.
The Court has subject matter jurisdiction over this action pursuant to the Controlled Substances Act, 21 U.S.C. § 881(a)(7), in rem jurisdiction over the Defendant Property, and personal jurisdiction over Plaintiff United States and the Claimants of the Property.
The Eighth Amendment states that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. While Cruel and Unusual Punishment cases are legion, for many years the Supreme Court did not concern itself with the Excessive Fines Clause. Until 1998, the Court had never applied the Clause to hold that a particular fine was excessive. It did so in United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), which held for the first time that a fine was constitutionally excessive.
Bajakajian was charged with failing to report that he was crossing the U.S. border with more than $10,000 in currency — in fact, he was traveling to Cyprus with $357,154 in currency. Federal law provided that "any property ... involved in such offense" was forfeitable in an in personam criminal proceeding." The government attempted to confiscate all $357,154, but the Court held that such a fine was excessive under the Clause. The Court paved the way for Bajakajian in Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), which held that the applicability of the Excess Fines Clause to a particular forfeiture depended upon whether the forfeiture was punitive and consequently considered a fine for purposes of the Clause, or remedial and falling outside the Clause. Significantly for the case at bar, Austin held that forfeitures of real property pursuant to 21 U.S.C. § 881(a)(7) are punitive in nature and therefore fall within the scope of the Excessive Fines Clause. Having decided that in principle, the Court in Austin remanded the case to the district court to consider whether the forfeiture there was excessive and to let the lower courts decide in the first instance "what factors should inform such a decision ..." Id. at 622-23, 113 S.Ct. 2801. The Supreme Court articulated some factors of its own when five years later it came to decide Bajakajian.
In the year 2000, Congress looked about and discovered that there were "scores of federal forfeiture statutes," which provided for the possible forfeiture, under disparate legal standards, of everything from "animals utilized in cock-fights and similar enterprises, to cigarettes seized from smugglers[,] to property obtained from violations of the Racketeer Influenced and Corrupt Organizations Act." H.R. Rep. 106-192 at 3 (internal citations omitted). Several other existing statutes allowed the government to use forfeiture as another "weapon in the war on drugs." Id. (cited and quoted in United States v. Ferro, 681 F.3d 1105, 1112 (9th Cir.2012)). Congress reacted to this cluttered array by passing, and the President signed, the Civil Asset Forfeiture Reform Act, 18 U.S.C. §§ 983 et seq. ("CAFRA"), as a result of which "the forfeiture landscape changed substantially." Ferro, 681 F.3d at 1112.
CAFRA now requires the government to prove to a jury "that there was a substantial connection between the property and
In the case at bar, the Court granted summary judgment for the Government on the first prong of the inquiry, that there was a substantial (and obvious) connection between the property and the offense. The bench trial that followed was conducted pursuant to the provisions of § 983(g) of CAFRA.
This analysis brings us to the Second Circuit's relatively recent decision, squarely applicable to the case at bar: von Hofe v. United States, 492 F.3d 175 (2007). In Marder I and Marder II, I discussed von Hofe at some length. For present purposes, it is sufficient to say that the facts in von Hofe resemble those in this case in striking ways. Harold and Kathleen von Hofe, a married couple, jointly owned and lived in a residential building "with an undisputed value of $248,000," which the Second Circuit described as "a ranch house located on a small wooded lot in Branford, Connecticut," with the street address of 32 Medley Lane. 492 F.3d at 179. Acting on a tip from a confidential informant, the Branford Police Department began investigating possible cultivation of marijuana at 32 Medley Lane, obtained a search warrant on the strength of subpoenaed electrical records showing abnormal consumption, and conducted a search of the house together with DEA agents, with these results:
Id.
The State of Connecticut filed criminal charges against both von Hofes. As in the case at bar, the federal government chose not to prosecute the von Hofes personally, but instead instituted a civil in rem forfeiture action against 32 Medley Lane, which was assigned to District Judge Mark Kravitz. Judge Kravitz conducted a jury trial. The jury concluded that the von Hofes' house was subject to forfeiture under the CSA. Judge Kravitz discharged the jury, and then "conducted an evidentiary hearing to determine whether forfeiture of 32 Medley Lane would violate the Excessive Fines Clause of the Eighth Amendment." 492 F.3d at 181.
Judge Kravitz held that the interests of both von Hofes were forfeit to the government. That was the functional equivalent of a $124,000 fine levied against each of the von Hofes, given their undivided one-half interest in the undisputed property value
Judge Wesley began his analysis for the court of appeals in von Hofe with references to the Supreme Court's decisions in Austin and Bajakajian, and the subsequently enacted CAFRA statute. He acknowledged, perhaps somewhat ruefully, that: "The confluence of Bajakajian and CAFRA and the dearth of relevant case law from our court vexed the district court." 492 F.3d at 183. To prevent or reduce any future vexation of district judges, the Second Circuit in von Hofe concluded an exhaustive examination of prior authorities, including some of its own earlier decisions, with this definitive statement of the law in cases such as the one at bar:
Id. at 186. Those considerations are binding upon this Court in this case.
Obedient to its own holding that "the culpability of each claimant" is a pertinent consideration in forfeiture cases, the Second Circuit in von Hofe examined in detail the individual conduct of both Harold and Kathleen. I need not recount all the court's detailed findings; their tenor and substance are adequately disclosed by this concluding paragraph:
I need not pursue the relative conduct of the von Hofes further because the conduct of the Marders is entirely different. If the reader will excuse the expression, the Marders' cultivation of marijuana at 5 Reynolds Lane was in every sense a joint operation. When they were married and still living in California, Beth Marder was fully aware of, and assisted Seth Marder in, the cultivation of marijuana at their home. She shared in the transportation of elaborate marijuana-growing equipment from California to Connecticut, driving one of the two U-Haul trucks necessary for the family move. Once at 5 Reynolds Lane, Beth Marder participated fully in the considerable efforts necessary to plant, tend and cultivate several hundred marijuana plants in the detached garage and the laundry room of the house. Beth does not contend otherwise. And Beth Marder became, together with her husband, a consumer of home-grown marijuana for medical reasons: in a perverse welcome to Connecticut, after the move from California she was diagnosed with chronic Lyme disease. In consequence, there is no basis for this Court to distinguish between the Marders in respect of their vulnerability to forfeiture, as there was for the Second Circuit when considering the von Hofes.
When one applies the Second Circuit's considerations declared in von Hofe to the Property in this case and the Claimants' interests in that Property, it is readily apparent that the Property must be forfeited by the Marders to the Government.
The Property is subject to forfeiture because the Government proved on its motion for partial summary judgment that, as § 983(c)(3) of CAFRA required, "there was a substantial connection between the property and the offense": a self-evident proposition when the illegal marijuana plants are tended and cultivated in buildings on the property. That is why the Government obtained summary judgment on that issue.
The burden then falls upon the Marders under § 983(g) of CAFRA to prove by a preponderance of the evidence that the forfeiture is "constitutionally excessive" because it is "grossly disproportional" to the offense. In von Hofe the Second Circuit distilled those statutory provisions into its first consideration: a claimant must prove a forfeiture is unconstitutional because of its "harshness, or gross disproportionality, of the forfeiture in comparison to the gravity of the offense." The Marders cannot sustain that burden in the face of the Second Circuit's reasoning in declaring Harold von Hofe's interest in 32 Medley Lane forfeit to the Government:
492 F.3d at 188. These circumstances, the Second Circuit held, "allow us easily to conclude that forfeiture of his one-half interest in 32 Medley Lane is not an excessive fine." Id. The Marders cultivated more marijuana plants at 5 Reynolds Lane for a longer period of time, an operation cut short only because the Waterford Police and the DEA intervened. The forfeiture of their individual interests in the Property cannot be regarded as excessive fines.
The second and third considerations articulated by the Second Circuit in von Hofe raise no issues in the case at bar. The nexus between the property and the criminal offense is obvious; and the culpability of each of the two Claimants is identical to that of the other.
In his summation Mr. Koch, counsel for the Claimants, did not concede these several points, but the main thrust of his argument was that this Court should disregard, or perhaps more precisely look beyond, the Second Circuit's opinion in von Hofe and the statutory scheme which informed that decision.
Having pointed out that Judge Kravitz's decision to forfeit the von Hofes' interests in their home is dated 2005, Mr. Koch went on to say: "We're now in 2013. A lot has changed in terms of evolving standards with respect to marijuana from 2005 to 2013." Tr. 248. That preliminary contention is blunted somewhat by the date of the Second Circuit's opinion in von Hofe, which is 2007, but that does not preclude counsel's principal theme: Mr. Koch remains at liberty to contend, and he does contend, that "a lot has changed in terms of evolving standards with respect to marijuana from 2007 to 2013." He urged both propositions upon the Court: "[S]even years after Judge Kravitz's decision, marijuana is legal in Colorado and Washington. That's where we're headed." Tr. 254; and: "[T]hings have changed since the Court of Appeals' decision [in von Hofe]. Marijuana is not even illicit in some states in the United States. And it's not illicit in
Tr. 254-255. In these circumstances, present and foretold, Mr. Koch concluded that "it's going to be a travesty at this point in time for you to take the whole house, for you to take their whole house," Tr. 255, because "[b]ased on the trend, your Honor, and facts of this case, the Government trying to take someone's house I think is excessive." Tr. 260.
Counsel makes this argument forcefully and with skill; the genuineness and depth of his convictions are manifest. Mr. Koch drew from history examples of other "evolving standards." It was once legal, counsel reminded us, to own slaves; deny women the vote; forcefully sterilize the mentally retarded; forbid inter-racial marriage; forbid acts of sodomy between consenting adults; and execute the mentally retarded for committing a felony. All these signposts of a less enlightened time in the Nation's past, counsel argues, have been washed away by the beneficent tidal waves of "evolving standards," and so it should now be recognized by this Court with respect to laws prohibiting the cultivation of marijuana in one's home.
The process of change in the rule of law wrought by evolving standards is not always free from controversy. Counsel laid particular emphasis upon Justice Stevens' opinion in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Atkins held that the execution of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment. In Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), the Court had held that the Eighth Amendment did not categorically prohibit the execution of mentally retarded capital murderers. In Atkins, the Court revisited that question, "in light of the dramatic shift in the state legislative landscape," 536 U.S. at 310, 122 S.Ct. 2242, by which Justice Stevens meant: "Responding to the national attention received by the Bowden execution and our decision in Penry, state legislatures across the country began to address the issue." Id. at 314, 122 S.Ct. 2242. Justice Stevens' opinion cites a number of state laws prohibiting the execution of mentally retarded individuals, and adds: "It is not so much the number of these States that is significant, but the consistency of the direction of change." Id. at 315, 122 S.Ct. 2242 (footnote omitted). After considering a wide variety of legal and medical expressions from domestic and foreign sources, the Atkins Court held: "Construing and applying the Eighth Amendment in the light of our evolving standards of decency, we therefore conclude that such punishment is excessive and that the Constitution places a substantive restriction on the State's power to take the life of a mentally retarded offender." Id. at 321, 122 S.Ct. 2242 (citation and internal quotation marks omitted and emphasis added).
Chief Justice Rehnquist, Justice Scalia, and Justice Thomas joined in two dissenting opinions in Atkins, one written by the Chief Justice and the other by Justice
536 U.S. at 337-338, 122 S.Ct. 2242. One wonders if Justice Scalia would have joined the majority in Atkins if it appeared that "current social attitudes" wholeheartedly and uniformly condemned the execution of the offender in that case.
In the case at bar, the Marders seek to avoid forfeiture of their home by contending that such a fine would be excessive under the Eighth Amendment, given recent and continuing changes in the evolving of standards of decency and fairness respecting the legality of marijuana. Counsel suggests that the Court exercise its discretion and impose a relatively modest fine, within Sentencing Guideline boundaries.
This is not a frivolous argument. It may be something of a stretch to equate the right to grow marijuana at home with the rights to be emancipated from slavery, or to vote, or to be spared execution for a felony if mentally retarded. Nonetheless, the concept of evolving social and cultural standards as an engine of changing the legality of conduct is recognized by the Nation's constitutional law. Atkins teaches that lesson. A form of capital punishment that was legal before Atkins because it did not violate the Eighth Amendment became, by reason of the decision in Atkins, prohibited by the Eighth Amendment "in the light of our evolving standards of decency," as perceived by the majority of the Supreme Court Justices at the time. The Claimants at bar are entitled to careful consideration of whether this Court, discharging its responsibilities in the year of grace 2013 (rather than 2005 or 2007), should, as the result of evolving standards in respect of the legality of marijuana, reject the Government's demand to forfeit the Property and instead impose a modest fine, which the Marders would pay and go on living in their home.
One need not look far for contemporaneous reports and comments about the legality of marijuana. A Google search will get one started. I make no apology for my resort to that resource, which does not offend the Federal Rules of Evidence: the several references that follow are offered not for the truth of any assertions they contain, but rather for the fact that these public reports were made. In a case where a judicial officer is asked to decide whether a particular fine is excessive in the light of evolving public standards, that officer may test the waters through the use of such modern resources.
The Huffington Post's April 20, 2013 edition reported: "Eighteen states and Washington, D.C. have already made medical marijuana legal and 10 others are currently considering legislation to legalize marijuana, according to the National Cannabis Industry Association."
Connecticut is one of those states. The New Haven Register's April 21, 2013 edition reported: "Gov. Daniel P. Malloy signed the medical marijuana bill last May, and in October, the state began allowing patients to apply for medical marijuana licenses. So far, said Consumer Protection Commissioner Phillip Rubenstein, the state has issued about 300 licenses and received more than 400 applications."
The same edition noted: "The overarching question has big national implications. How do you do all of this without inviting the wrath of the federal government, which has been largely silent so far on how it will respond to a gaping conflict between the U.S. and state law?"
In a follow-up piece, the Huffington Post's July 15, 2013 edition quoted testimony United States Attorney General Eric Holder gave to a House Appropriations subcommittee in April. The Attorney General is reported to have said:
Based upon further reported comments, it is fair to say that both advocates and opponents of legalizing marijuana found reasons for encouragement in the Attorney General's somewhat Delphic remarks. No definitive action appears to have been taken since by the Department of Justice. As for Congress, the online version of Forbes Magazine reported on June 21, 2013: "Congressmen Jared Polis (D-CO) and Earl Blumenauer (D-OR) have introduced a bill to end the federal prohibition on marijuana and allow it to be taxed. This legislation would remove marijuana from the Controlled Substances Act. That way growers, sellers and users could no longer fear violating federal law." No change in the federal statute would appear to be imminent: at this bleak moment in the Nation's history, Congress does not seem capable of doing anything of substance. The divisions of opinion in the body politic are manifest; the Huffington Post's April 20, 1913 edition reports:
After careful consideration, I find myself unable to conclude that legal and societal standards in the United States have evolved to the extent that forfeiture of a private home, held to be not constitutionally excessive by the Second Circuit in von Hofe in 2007, becomes in closely similar circumstances excessive in 2013. It is worth noting that in Atkins v. Virginia, relied upon by Claimants, Justice Stevens was able, while reviewing evolving standards of decency, to say: "In 1988, when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a `sentence of death shall not be carried out upon a person who is mentally
I conclude this decision with another opinion by Judge Kravitz: United States v. One Parcel of Property Located at 35 Ruth Street, Unit 30 Bristol, Connecticut, No. 3:06-cv-1844, 2008 WL 4005299 (D.Conn. Aug. 25, 2008). One Wesley Musumano was convicted in a state court for selling hard drugs out of his apartment in Bristol. Musumano served a state prison sentence. The federal Government brought an action to forfeit his apartment. Judge Kravitz conducted a bench trial, of the sort he had conducted previously in von Hofe and I have done in the case at bar. In Judge Kravitz's words:
2008 WL 4005299, at *2. In these particular circumstances, the Government decided to go ahead with the forfeiture of Musumano's apartment. Judge Kravitz reviewed the authorities (including the Second Circuit's opinion in von Hofe), reached the unsurprising conclusion that the Government was entitled to forfeiture of the apartment, and ended his opinion by saying this:
2008 WL 4005299, at *3.
This balanced and nuanced reflection is the handiwork of a great judge, who stayed strictly within the boundaries of his responsibility to decide the legalities of the case but did not hesitate to add his thoughts concerning its human aspects. That broader view may reflect the reality that in modern federal practice, a trial judge is trained to think and act as both judge of the law and chancellor in equity. In Musumano's case, Judge Kravitz properly recognized the legal limitations of his judicial office — "whether it is wise or sensible in these circumstances to deprive Mr. Musumano of a home is a decision that the United States Attorney must make" — but felt no inhibition in giving voice to what one may call equitable considerations. A critic could, I suppose, dismiss that part of this passage as dicta pronounced by an activist judge; but "activist" in that context, whether used as noun or adjective, often means only that the critic disagrees with what someone else said or did.
My purpose in this case is to emulate Judge Kravitz, not for the first and I anticipate not for the last time, which is to say:
The Court holds that requiring Mr. and Mrs. Marder to forfeit their entire interests in the Property does not violate the Excessive Fines Clause of the Eighth Amendment.
The Government, having achieved that litigation objective, may wish to consider whether, in the totality of the present circumstances, depriving the Marders of their home best serves the justice and wisdom of the cause.
The Government is directed to serve upon Claimants' counsel and submit to the Court a proposed form of Judgment consistent with this Decision, no later than August 16, 2013. Upon entry of the Judgment, the Clerk is directed to close this case.
IT IS SO ORDERED.
