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Hawks v. Greene12/18/2001
into the United States." Id.
In applying its proportionality test to the facts in Bajakajian, in which the defendant had failed to report exported currency to customs, the U. S. Supreme Court found that the offense involved was punishable by a maximum of six months imprisonment and a fine of $5,000, indicating a minimal level of culpability, that the harm caused by Mr. Bajakajian's offense was also minimal, and that his action affected only one party, the U.S. Government, and in a minor way. Bajakajian, 524 U.S. at 337-40, 118 S. Ct. at 2038-39. The Court concluded that the forfeiture of all the money carried by Mr. Bajakajian, $357,144.00, would be grossly disproportional to the gravity of his offense because " t is larger than the $5,000 fine imposed by the District Court by many orders of magnitude, and it bears no articulable correlation to any injury suffered by the Government." Id. at 339-40, 2039.
The U.S. Supreme Court did not include in its proportionality test any consideration of the impact of the forfeiture on the person from whom the property is taken, but noted that the respondent had not argued that his wealth or income were relevant to the proportionality determination. See id., 524 U.S. at 340 n.15, 118 S. Ct. at 2039 n.15.
In the only Tennessee appellate court opinion since Stuart and Bajakajian to deal fully with the excessive fines analysis, the Tennessee Court of Criminal Appeals applied that analysis to a fine imposed by a jury under a statute establishing a minimum fine, but no maximum limit. State v. Taylor, No. M1999-2566-CCA-R3-CD, 2001 WL 427651 (Tenn. Crim. App. Apr. 26, 2001) (perm. app. granted Sept. 17, 2001). In that case, the Court of Criminal Appeals reiterated the United States Supreme Court's holding that the Constitution prohibits fines that are disproportionate to the crime committed, citing Bajakajian and Solem v. Helm, 463 U.S. 277, 284, 103 S. Ct. 3001, 3006 (1983). The court set out and then applied the Solem analysis which required consideration of (1) the gravity of the offense and the harshness of the penalty; (2) the fines imposed on other criminals in the same jurisdiction; and (3) sentences imposed for commission of the same crime in other jurisdictions. Taylor, 2001 WL 427651, at *2. Taylor involved a fine of $27,500, imposed as part of the sentence upon conviction of a second offense of driving on a revoked license. Id. at *1. The court determined that the fine of $27,500 was inappropriate in relation to the nature and gravity of the offense.
V.
Clearly, our consideration of whether the forfeiture of the van is disproportional to the conduct requires consideration of a number of factors. We must consider the gravity of the conduct which the forfeiture serves to punish. Part of that consideration is the relative seriousness of the other punishments for the offense and of punishments for similar offenses. The offense that is the basis for forfeiture of Ms. Hawks's vehicle is driving on a license which was revoked for DUI, in violation of Tenn. Code Ann. § 55-50-504(a). The Department of Safety, in an administrative hearing, made the determination she had committed the violation. It is necessary, however, to examine Ms. Hawks's actual conduct and culpability as part of the proportionality assessment. Ms. Hawks's driver license had indeed been revoked as a consequence of her conviction of DUI in March of 1996. When considered as part of her punishment for that offense, the revocation, by statute and by court order, was for one year. By the time she was stopped and charged with driving on a revoked license, that mandatory revocation time had expired; she had served her punishment for the original DUI conviction
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