cdTOCtest

prescribed by N.J.S.A. 2C:64-3f as unconstitutional
under N.J. Const. art. 1, ¶9. Thus, a person claiming to
be an innocent owner who demands a jury trial is entitled
to one. On August 14, 1998, the Court denied the
State’s motion for clarification of the retroactivity issue,
but the order stated: “provided, however, that the
judgment of the Court filed on July 15, 1998, shall be
applied to all pending cases and those on direct appeal
(‘pipeline retroactivity’).” Thus, the Court essentially
agreed with the State that the rule should not be applied
to cases that have resulted in final judgment if the direct
appeal was not pending. 156 N.J. 378.

D. Double Jeopardy

Settling an issue that had divided the courts for many
years, a majority of the United States Supreme Court
ruled in United States v. Ursery, 518 U.S. 267, 116 S.Ct.
549, 135 L.Ed.2d 549 (1996), that civil in rem
forfeitures are neither “punishment” nor criminal for
purposes of the Double Jeopardy Clause. This
determination allows the government to pursue both a
criminal case and a civil forfeiture case in separate
proceedings, and obtain separate judgments.

In State v. $3,000.00 In United States Currency, 292
N.J. Super. 205 (App. Div. 1996), New Jersey continued
its acceptance of federal jurisprudence on double
jeopardy protection. The Appellate Division rejected the
defendant’s double jeopardy claim that civil forfeiture
proceedings were barred because he already had been
convicted of drug offenses arising out of the same facts.
Reversing the trial court’s order that dismissed on double
jeopardy grounds a portion of the State’s forfeiture case,
the Appellate Division specifically relied on Ursery and
held that the double jeopardy bar was inapplicable to the
State’s right to prosecute a civil in rem forfeiture action
under Chapter 64 after obtaining the criminal
convictions. Id. at 212.

E. Excessive Fines

In an opinion that depends on the accuracy of an
analysis later implicated by Ursery, the United States
Supreme Court held that the federal constitution affords
excessive fines protection to civil in rem forfeitures, at least
where the forfeiture is “punitive in part.” Austin v. United
States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488
(1993). In Austin, the Court noted that the provision of
innocent owner protection indicates that an in rem
forfeiture action is partly personal and not directed solely
at the property. The Court also noted that the

development of an excessiveness test -- to determine

which forfeitures are excessive and which are not -- was

better left to the lower courts, and specifically declined to

formulate a test.

In State v. $3,000 In United States Currency, 292 N.J.

Super. 205, 213 (App. Div. 1996) the Appellate Division

(citing the lone dissent in Ursery) noted that proceeds

forfeitures do not implicate the Excessive Fines Clause

because they are in no way punitive. Relying on Austin,

the Appellate Division concluded that the forfeiture of

non-proceeds derivative contraband is subject to

excessive fines protection, and outlined a test.

“Excessiveness, obviously, is a matter of proportionality,”

the Appellate Division stated, “[The proportionality

standard approved by the New Jersey Supreme] Court

requires that in making the excessiveness determination,

‘the Court should focus on the depth of the connection

between the crime and the property rather than on the

value of the penalty in relation to the offense.’” Id. (citing

State v. Seven Thousand Dollars, 136 N.J. at 235).

Six years after deciding Austin (and two years after the

Appellate Division decided State v. $3,000), the United

States Supreme Court established an excessiveness test, at

least for criminal, in personam forfeitures. In United States

v. Bajakajian, 514 U.S. 321, 118 S.Ct. 2028, 141

L.Ed.2d 314 (1998), the Court concluded that “[t]he

touchstone of the constitutional inquiry under the

Excessive Fines Clause is the principle of proportionality.

The amount of the forfeiture must bear some relation to

the gravity of the offense that it is designed to punish....

We now hold that a punitive forfeiture violates the

excessive fines clause if it is grossly disproportional to the

gravity of a defendant’s offense.” Id. 118 S.Ct. at 2036.

V. RELATED ISSUES

A. Fugitive Disentitlement

The fugitive disentitlement doctrine, under which a

fugitive from justice loses the right to assert certain legal

claims, did not warrant judgment in favor of government

in a civil forfeiture action. Degen v. United States, 517

U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996).

The Supreme Court ruled that the district court could

not strike a claimant’s filings in a forfeiture action and

grant summary judgment against him merely because he

failed to appear in a related criminal prosecution. The

Supreme Court determined that the district court’s

jurisdiction over the property was secure, that there was

no risk of delay or frustration in determining the merits

of the government’s forfeiture case, and that the district