118 S. CT. 502

LYNNE KALINA, PETITIONER v. RODNEY FLETCHER

No. 96-792

SUPREME COURT OF THE UNITED STATES

522 U.S. 118; 118 S. Ct. 502; 139 L. Ed. 2d 471; 1997 U.S. ; 66 U.S.L.W. 4031; 97 Cal. Daily Op. Service 9233; 97 Daily Journal DAR 14869; 1997 Colo. J. C.A.R. 3203; 11 Fla. L. Weekly Fed. S 258

October 7, 1997, Argued
December 10, 1997, Decided


PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, Reported at: 1996 U.S. App. LEXIS 21488.

DISPOSITION: 93 F.3d 653, affirmed.




SYLLABUS: Following customary practice, petitioner prosecuting attorney commenced criminal proceedings by filing three documents in Washington state court: (1) an unsworn information charging respondent with burglary; (2) an unsworn motion for an arrest warrant; and (3) a "Certification for Determination of Probable Cause," in which she summarized the evidence supporting the charge and swore to the truth of the alleged facts "under penalty of perjury." Based on the certification, the trial court found probable cause, and respondent was arrested and spent a day in jail. Later, however, the charges against him were dismissed on the prosecutor's motion. Focusing on two inaccurate factual statements in petitioner's certification, respondent sued her for damages under 42 U.S.C. § 1983, alleging that she had violated his constitutional right to be free from unreasonable seizures. The Federal District Court denied her motion for summary judgment, holding that she was not entitled to absolute prosecutorial immunity and that whether qualified immunity would apply was a question of fact. The Ninth Circuit affirmed.

Held: Section 1983 may create a damages remedy against a prosecutor for making false statements of fact in an affidavit supporting an application for an arrest warrant, since such conduct is not protected by the doctrine of absolute prosecutorial immunity. Pp. 4-13.

(a) Imbler v. Pachtman, 424 U.S. 409, 410, 430-431, 47 L. Ed. 2d 128, 96 S. Ct. 984, and subsequent cases recognize that a criminal prosecutor is fully protected by absolute immunity when performing the traditional functions of an advocate, see, e.g., Buckley v. Fitzsimmons, 509 U.S. 259, 273, 125 L. Ed. 2d 209, 113 S. Ct. 2606, but is protected only by qualified immunity when he is not acting as an advocate, as where he functions as a complaining witness in presenting a judge with a complaint and supporting affidavit to establish probable cause for an arrest, see Malley v. Briggs, 475 U.S. 335, 340-341, 89 L. Ed. 2d 271, 106 S. Ct. 1092. Under these cases, petitioner's activities in connection with the preparation and filing of the information against respondent and the motion for an arrest warrant clearly are protected by absolute immunity as part of the advocate's function. Indeed, except for her act in personally attesting to the truth of the averments in the certification, the preparation and filing of that third document was protected as well. Pp. 4-10.

(b) However, petitioner was acting as a complaining witness rather than a lawyer when she executed the certification "under penalty of perjury," and, insofar as she did so, § 1983 may provide a remedy for respondent. Since the Fourth Amendment requirement that arrest warrants be based "upon probable cause, supported by Oath or affirmation" may not be satisfied by the mere filing of an unsworn information signed by the prosecutor, see, e.g., Gerstein v. Pugh, 420 U.S. 103, 117, 43 L. Ed. 2d 54, 95 S. Ct. 854, and since most Washington prosecutions are commenced by information, state law requires that an arrest warrant be supported by either an affidavit "or sworn testimony establishing the grounds for issuing the warrant." Petitioner's certification was designed to satisfy those requirements, but neither federal nor state law made it necessary for the prosecutor to make that certification. Petitioner's argument that such execution was just one incident in a presentation that, viewed as a whole, was the work of an advocate is unavailing. Although the exercise of an advocate's professional judgment informed petitioner's other actions, that judgment could not affect the truth or falsity of the factual statements contained in the certification. Testifying about facts is the function of the witness, not of the lawyer. No matter how brief or succinct it may be, the evidentiary component of an application for an arrest warrant is a distinct and essential predicate for a finding of probable cause. Even when the person who makes the constitutionally required "Oath or affirmation" is a lawyer, the only function that she performs is that of a witness. Petitioner's final argument, that denying her absolute immunity will have a "chilling effect" on prosecutors in the administration of justice, is not supported by evidence and is unpersuasive. Pp. 10-12.

93 F.3d 653, affirmed.

COUNSEL:
Norm Maleng argued the cause for petitioner.

Patricia A. Millett argued the cause for the United States, as amicus curiae, by special leave of court.

Timothy K. Ford argued the cause for respondent.

JUDGES: STEVENS, J., delivered the opinion for a unanimous Court. SCALIA, J., filed a concurring opinion, in which THOMAS, J., joined.

OPINIONBY: STEVENS

OPINION:
[**505] [***475] [*120] JUSTICE STEVENS delivered the opinion of the Court.
[***LEdHR1A] [1A]The question presented is whether 42 U.S.C. § 1983 creates a damages remedy against a prosecutor for making false statements of fact in an affidavit supporting an application for an arrest warrant, or whether, as she contends, such conduct is protected by "the doctrine of absolute prosecutorial immunity."
I
Petitioner is a Deputy Prosecuting Attorney for King County, Washington. Following customary practice, on December 14, 1992, she commenced a criminal proceeding [*121] against respondent by filing three documents in the King County Superior Court. Two of those documents -- an information charging respondent with burglary and a motion for an arrest warrant -- were unsworn pleadings. The burglary charge was based on an alleged theft of computer equipment from a school.
Washington Criminal Rules require that an arrest warrant be supported by an affidavit or "sworn testimony establishing the grounds [***476] for issuing the warrant." n1 To satisfy that requirement, petitioner supported her motion with a third document -- a "Certification for Determination of Probable Cause" -- that summarized the evidence supporting the charge. She personally vouched for the truth of the facts set forth in the certification under penalty of perjury. n2 Based on petitioner's certification, the trial court found probable cause and ordered that an arrest warrant be issued.

n1 Washington Criminal Rule 2.2(a); see Wash. Rev. Code § 9A.72.085 (1994) (providing, inter alia, that a certification made under penalty of perjury is the equivalent of an affidavit). Accord, King County Local Criminal Rule 2.2.
n2 App. 20.

Petitioner's certification contained two inaccurate factual statements. After noting that respondent's fingerprints had been found on a glass partition in the school, petitioner stated that respondent had "never been associated with the school in any manner and did not have permission to enter the school or to take any property." n3 In fact, he had installed partitions on the premises and was authorized to enter the school. She also stated that an employee of an electronics store had identified respondent "from a photo montage" as the person who had asked for an appraisal of a computer stolen from the school. n4 In fact, the employee did not identify respondent. n5

n3 Id. at 19-20.
n4 Id. at 20.
n5 Id. at 5.

[*122]
Respondent was arrested and spent a day in jail. About a month later, the charges against him were dismissed on the prosecutor's motion.
II
[***LEdHR2] [2]Respondent brought this action under Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983, seeking damages from petitioner based on her alleged violation of his constitutional right to be free from unreasonable seizures. In determining immunity, we accept the allegations of respondent's complaint as true. See Buckley v. Fitzsimmons, 509 U.S. 259, 261, 125 L. Ed. 2d 209, 113 S. Ct. 2606 (1993). Respondent's complaint focuses on the false statements made by the petitioner in the certification. n6 Petitioner moved for summary judgment on the ground that the three documents that she filed to commence the criminal proceedings and to procure the arrest warrant were protected by "the doctrine of absolute prosecutorial immunity." n7 The District Court denied the motion, holding that she was not entitled to absolute immunity and that whether qualified immunity would apply was a question of fact. n8 The Court of Appeals for the Ninth Circuit affirmed.

n6 Id. at 5-6.
n7 Id. at 10.
n8 Id. at 21.

The Ninth Circuit first noted that under our decision in Malley v. Briggs, 475 U.S. 335, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986), "a [**506] police officer who secures an arrest warrant without probable cause cannot assert an absolute immunity defense," and then observed that petitioner's "actions in writing, signing and filing the declaration for an arrest warrant" were "virtually identical to the police officer's actions in Malley." 93 F.3d 653, 655-656 [***477] (1996). Relying on the functional approach endorsed in Buckley v. Fitzsimmons, the Court of Appeals concluded that "it would be 'incongruous' to expose police to potential liability while protecting prosecutors for the same act." 93 F.3d at 656. [*123]
The Court of Appeals acknowledged that the Sixth Circuit had reached a different result in Joseph v. Patterson, 795 F.2d 549, 555 (1986), cert. denied, 481 U.S. 1023, 95 L. Ed. 2d 516, 107 S. Ct. 1910 (1987), a case that predated our decision in Buckley. Because we have never squarely addressed the question whether a prosecutor may be held liable for conduct in obtaining an arrest warrant, we granted certiorari to resolve the conflict. 519 U.S. ___ (1997). We now affirm.
III
Section 1983 is a codification of § 1 of the Civil Rights Act of 1871. n9 The text of the statute purports to create a damages remedy against every state official for the violation of any person's federal constitutional or statutory rights. n10 The coverage of the statute is thus broader than the pre-existing common law of torts. We have nevertheless recognized that Congress intended the statute to be construed in the light of common-law principles that were well settled at the time of its enactment. See Tenney v. Brandhove, 341 U.S. 367, 95 L. Ed. 1019, 71 S. Ct. 783 (1951); Briscoe v. LaHue, 460 U.S. 325, 330, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983). Thus, we have examined common-law doctrine when identifying both the elements of the cause of action and the defenses available to state actors.

n9 See Briscoe v. LaHue, 460 U.S. 325, 337, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983).
n10 Title 42 U.S.C. § 1983 provides:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ."

In Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), we held that a former prisoner whose conviction had been set aside in collateral proceedings could not maintain a § 1983 action against the prosecutor who had litigated the charges against him. Relying in part on common-law precedent, and perhaps [*124] even more importantly on the policy considerations underlying that precedent, we concluded that "a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution" was not amenable to suit under § 1983. Id. at 410.
Liberally construed, Imbler's complaint included not only a charge that the prosecution had been wrongfully commenced, but also a charge that false testimony had been offered as well as a charge that exculpatory evidence had been suppressed. His constitutional claims were thus broader than any specific common-law antecedent. Nevertheless, relying on common-law decisions providing prosecutors with absolute immunity from tort actions based on claims that the decision to prosecute was malicious and unsupported by [***478] probable cause, n11 as well as from actions for [**507] defamation based on statements made during trial, n12 we concluded that [*125] the statute should be construed to provide an analogous defense against the claims asserted by Imbler. The policy considerations that justified the common-law decisions affording absolute immunity to prosecutors when performing traditional functions applied equally to statutory claims based on the conduct of the same functions.

n11 See 424 U.S. at 421-422. The cases that the Court cited were decided after 1871 and granted a broader immunity to public prosecutors than had been available in malicious prosecution actions against private persons who brought prosecutions at early common law. See Savile v. Roberts, 1 Ld. Raym. 374, 91 Eng. Rep. 1147 (K. B. 1699); Hill v. Miles, 9 N.H. 9 (1837); M. Bigelow, Leading Cases on the Law of Torts 193-204 (1875). However, these early cases were decided before the office of public prosecutor in its modern form was common. See Langbein, The Origins of Public Prosecution at Common Law, 17 Am. J. Legal Hist. 313, 316 (1973); Kress, Progress and Prosecution, 423 Annals Am. Acad. Pol. & Soc. Sci. 99, 100-102 (1976); White v. Frank, 855 F.2d 956, 962 (CA2 1988) (noting that "the availability of the malicious prosecution action has been curtailed with the growth of the office of the public prosecutor"). Thus, the Court in Imbler drew guidance both from the first American cases addressing the availability of malicious prosecution actions against public prosecutors, and perhaps more importantly, from the policy considerations underlying the firmly established common-law rules providing absolute immunity for judges and jurors. See Imbler v. Pachtman, 424 U.S. at 423, n. 20 (discussing similarity in some functions performed by judges, jurors, and prosecutors); Bradley v. Fisher, 80 U.S. 335, 13 Wall. 335, 347, 20 L. Ed. 646 (1872); Yates v. Lansing, 5 Johns. 282 (N. Y. 1810) (Kent, C. J.); Note, Civil Liability of a District Attorney for Quasi-Judicial Acts, 73 U. Pa. L. Rev. 300, 303, n. 13 (1925).
n12 See 424 U.S. at 439-440 (White, J., concurring in judgment).

Those considerations included both the interest in protecting the prosecutor from harassing litigation that would divert his time and attention from his official duties and the interest in enabling him to exercise independent judgment when "deciding which suits to bring and in conducting them in court." Id. at 424. The former interest would lend support to an immunity from all litigation against the occupant of the office whereas the latter is applicable only when the official is performing functions that require the exercise of prosecutorial discretion. Our later cases have made it clear that it is the interest in protecting the proper functioning of the office, rather than the interest in protecting its occupant, that is of primary importance.
In Imbler, we did not attempt to define the outer limits of the prosecutor's absolute immunity, but we did recognize that our rationale would not encompass some of his official activities. Thus, while we concluded that Pachtman's "activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force," id. at 430, we put to one side "those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate." Id. at 430-431.
Subsequent cases have confirmed the importance to the judicial process of protecting the prosecutor when serving as an advocate in judicial proceedings. Thus, in Burns v. Reed, 500 U.S. 478, 114 L. Ed. 2d 547, 111 S. Ct. 1934 (1991), after noting the consensus among the Courts of Appeals concerning prosecutorial conduct before grand juries, id. at 490, [***479] n. 6, we held that the prosecutor's [*126] appearance in court in support of an application for a search warrant and the presentation of evidence at that hearing were protected by absolute immunity. Id. at 492. And in Buckley, we categorically stated that "acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity." 509 U.S. at 273.
In both of those cases, however, we found the defense unavailable when the prosecutor was performing a different function. In Burns, the provision of legal advice to the police during their pretrial investigation of the facts was protected only by qualified, rather than absolute, immunity. 500 U.S. at 492-496. Similarly, in Buckley, the prosecutor was not acting as an advocate either when he held a press conference, 509 U.S. at 276-278, or when he allegedly fabricated evidence concerning an unsolved crime. With reference to the latter holding, we explained:
"There is a difference between the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective's role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, [**508] on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is 'neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.' Hampton v. Chicago, 484 F.2d 602, 608 (CA7 1973) (internal quotation marks omitted), cert. denied, 415 U.S. 917, 39 L. Ed. 2d 471, 94 S. Ct. 1413, 94 S. Ct. 1414 (1974). Thus, if a prosecutor plans and executes a raid on a suspected weapons cache, he 'has no greater claim to complete immunity than activities of police officers allegedly acting under his direction.' 484 F.2d at 608-609." 509 U.S. at 273-274.

[*127] [***LEdHR3A] [3A] [***LEdHR4] [4] [***LEdHR5] [5]These cases make it clear that the absolute immunity that protects the prosecutor's role as an advocate is not grounded in any special "esteem for those who perform these functions, and certainly not from a desire to shield abuses of office, but because any lesser degree of immunity could impair the judicial process itself." Malley, 475 U.S. at 342. Thus, in determining immunity, we examine "the nature of the function performed, not the identity of the actor who performed it." Forrester v. White, 484 U.S. 219, 229, 98 L. Ed. 2d 555, 108 S. Ct. 538 (1988). n13 This point is perhaps best illustrated by the determination that the senior law enforcement official in the Nation -- the Attorney General of the United States -- is protected only by qualified rather than absolute immunity when [***480] engaged in the performance of national defense functions rather than prosecutorial functions. Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985).

n13 Examining the nature of the function performed is not a recent innovation. In Ex parte Virginia, 100 U.S. 339, 348, 25 L. Ed. 676 (1880), we stated "whether the act done by [a judge] was judicial or not is to be determined by its character, and not by the character of the agent." See also Bradley v. Fisher, 13 Wall. at 347 (examining "the character of the act" performed by a judge).

In Malley we considered, and rejected, two theories on which immunity might have been accorded to a police officer who had caused an unconstitutional arrest by presenting a judge with a complaint and supporting affidavit that failed to establish probable cause. His first argument, that his function was comparable to that of a complaining witness, actually militated against his claim because such witnesses were subject to suit at common law. n14

n14 We noted that:
"Complaining witnesses were not absolutely immune at common law. In 1871, the generally accepted rule was that one who procured the issuance of an arrest warrant by submitting a complaint could be held liable if the complaint was made maliciously and without probable cause. Given malice and the lack of probable cause, the complainant enjoyed no immunity. The common law thus affords no support for petitioner." Malley v. Briggs, 475 U.S. 335, 340-341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986) (footnote omitted).


[*128] [***LEdHR6A] [6A]His second argument rested on the similarity between his conduct and the functions often performed by prosecutors. As we explained:
"As an alternative ground for claiming absolute immunity, petitioner draws an analogy between an officer requesting a warrant and a prosecutor who asks a grand jury to indict a suspect. Like the prosecutor, petitioner argues, the officer must exercise a discretionary judgment based on the evidence before him, and like the prosecutor, the officer may not exercise his best judgment if the threat of retaliatory lawsuits hangs over him. Thus, petitioner urges us to read § 1983 as giving the officer the same absolute immunity enjoyed by the prosecutor. Cf. Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976).
. . . .
" . . . We intend no disrespect to the officer applying for a warrant by observing that his action, while a vital part of the administration of criminal justice, is further removed from the judicial phase of criminal proceedings than the act of a prosecutor in seeking an indictment. Furthermore, petitioner's analogy, while it has some force, does not take account of the fact that the prosecutor's act in seeking an indictment is but the first step in the process [**509] of seeking a conviction. Exposing the prosecutor to liability for the initial phase of his prosecutorial work could interfere with his exercise of independent judgment at every phase of his work, since the prosecutor might come to see later decisions in terms of their effect on his potential liability. Thus, we shield the prosecutor seeking an indictment because any lesser immunity could impair the performance of a central actor in the judicial process." 475 U.S. at 341-343.
[*129] These cases make it quite clear that petitioner's activities in connection with the preparation and filing of two of the three charging documents -- the information and the motion for an arrest warrant -- are protected by absolute immunity. Indeed, except for her act in personally attesting to the truth of the averments in the certification, it seems equally clear that the preparation and filing of the third document in the package was [***481] part of the advocate's function as well. The critical question, however, is whether she was acting as a complaining witness rather than a lawyer when she executed the certification "under penalty of perjury." We now turn to that question.
IV
[***LEdHR1B] [1B] [***LEdHR7] [7]The Fourth Amendment requires that arrest warrants be based "upon probable cause, supported by Oath or affirmation" -- a requirement that may be satisfied by an indictment returned by a grand jury, but not by the mere filing of criminal charges in an unsworn information signed by the prosecutor. Gerstein v. Pugh, 420 U.S. 103, 117, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975); see also Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). Accordingly, since most prosecutions in Washington are commenced by information, Washington law requires, in compliance with the constitutional command, that an arrest warrant be supported by either an affidavit "or sworn testimony establishing the grounds for issuing the warrant." n15 The "Certification for Determination of Probable Cause" executed by petitioner was designed to satisfy those requirements.

n15 Washington Criminal Rule 2.2(a) provides:
"A warrant of arrest must be supported by an affidavit, . . . or sworn testimony establishing the grounds for issuing the warrant . . . . The court must determine there is probable cause . . . before issuing the warrant. "

[***LEdHR1C] [1C]Although the law required that document to be sworn or certified under penalty of perjury, neither federal nor state law made it necessary for the prosecutor to make that certification. In doing so, petitioner performed an act that any [*130] competent witness might have performed. Even if she may have been following a practice that was routinely employed by her colleagues and predecessors in King County, Washington, that practice is surely not prevalent in other parts of the country and is not even mandated by law in King County. Neither petitioner nor amici argue that prosecutors routinely follow the King County practice. n16 Indeed, tradition, as well as the ethics of our profession, generally instruct counsel to avoid the risks associated with participating as both advocate and witness in the same proceeding. n17

n16 Amicus Curiae United States points out that federal prosecutors typically do not personally attest to the facts in an affidavit filed in support of an application for an arrest warrant, but "instead a law enforcement agent ordinarily attests to those facts." Brief for United States 7 .Amici Curiae Thirty-Nine Counties of the State of Washington state that local court rules in only two counties in Washington require the prosecutor to file an additional document beyond an information. Brief for Thirty-Nine Counties of the State of Washington as Amici Curiae 2.
n17 See, e.g., Washington Rule of Professional Conduct 3.7 ("A lawyer shall not act as advocate at a trial in which the lawyer . . . is likely to be a necessary witness," unless four narrow exceptions apply); ABA Model Rules of Professional Conduct 3.7 (1992).

[***LEdHR1D] [1D] [***LEdHR6B] [6B]Nevertheless, petitioner argues that the execution of the certificate was just one incident in a presentation that, viewed as a whole, was the work of an advocate and was integral to the initiation of the prosecution. That characterization is appropriate for her drafting of the certification, her determination that the evidence was sufficiently strong to justify a probable-cause finding, her decision to file charges, and her presentation of the information and the motion to the court. Each of those matters involved the exercise [**510] of professional judgment; indeed, even the [***482] selection of the particular facts to include in the certification to provide the evidentiary support for the finding of probable cause required the exercise of the judgment of the advocate. But that judgment could not affect the truth or falsity of the factual statements themselves. Testifying about facts is the function of the witness, not of the lawyer. No matter how [*131] brief or succinct it may be, the evidentiary component of an application for an arrest warrant is a distinct and essential predicate for a finding of probable cause. Even when the person who makes the constitutionally required "Oath or affirmation" is a lawyer, the only function that she performs in giving sworn testimony is that of a witness.
[***LEdHR1E] [1E]Finally, petitioner argues that denying her absolute immunity will have a "chilling effect" on prosecutors in the administration of justice. n18 We are not persuaded.

n18 Brief for Petitioner 25.

[***LEdHR1F] [1F] [***LEdHR3B] [3B]It may well be true that prosecutors in King County may abandon the practice of routinely attesting to the facts recited in a "Certification for Determination of Probable Cause" and pattern their procedures after those employed in other parts of the Nation. Petitioner presents no evidence that the administration of justice is harmed where the King County practice is not followed. In other respects, however, her argument addresses concerns that are not affected by our decision because we merely hold that § 1983 may provide a remedy for respondent insofar as petitioner performed the function of a complaining witness. We do not depart from our prior cases that have recognized that the prosecutor is fully protected by absolute immunity when performing the traditional functions of an advocate. See Imbler, 424 U.S. at 431; Buckley, 509 U.S. at 273.
Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is
Affirmed.

CONCURBY: SCALIA

CONCUR:
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring.
I agree that Ms. Kalina performed essentially the same "function" in the criminal process as the police officers in Malley v. Briggs, 475 U.S. 335, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986), and so I join the opinion of the Court. I write separately because it would be a [*132] shame if our opinions did not reflect the awareness that our "functional" approach to 42 U.S.C. § 1983 immunity questions has produced some curious inversions of the common law as it existed in 1871, when § 1983 was enacted. A conscientious prosecutor reading our cases should now conclude that there is absolute immunity for the decision to seek an arrest warrant after filing an information, but only qualified immunity for testimony as a witness in support of that warrant. The common-law rule was, in a sense, exactly opposite.
There was, of course, no such thing as absolute prosecutorial immunity when § 1983 was enacted. (Indeed, as the Court points out, ante, at * 5, n. 11, there generally was no such thing as the modern public prosecutor.) The common law recognized a "judicial" immunity, which protected judges, jurors and [***483] grand jurors, members of courts martial, private arbitrators, and various assessors and commissioners. That immunity was absolute, but it extended only to individuals who were charged with resolving disputes between other parties or authoritatively adjudicating private rights. When public officials made discretionary policy decisions that did not involve actual adjudication, they were protected by "quasi-judicial" immunity, which could be defeated by a showing of malice, and hence was more akin to what we now call "qualified," rather than absolute, immunity. I continue to believe that "prosecutorial functions, had they existed in their modern form in 1871, would have been considered quasi-judicial." Burns v. Reed, 500 U.S. 478, 500, 114 L. Ed. 2d 547, 111 S. Ct. 1934 (1991) (SCALIA, J., concurring in judgment in part and dissenting in part).
That conclusion accords with the common law's treatment of private prosecutors, who once commonly performed the "function" now delegated to public officials like petitioner. A private citizen who initiated or procured [**511] a criminal prosecution could (and can still) be sued for the tort of malicious prosecution -- but only if he acted maliciously and without [*133] probable cause, and the prosecution ultimately terminated in the defendant's favor. Thus, although these private prosecutors (sometimes called "complaining witnesses"), since they were not public servants, were not entitled to quasi-judicial immunity, there was a kind of qualified immunity built into the elements of the tort.
The common law also recognized an absolute immunity for statements made in the course of a judicial proceeding and relevant to the matter being tried. That immunity protected both witnesses and attorneys, and could not be defeated even by an allegation that the statement was maliciously false. See, e.g., F. Hilliard, Law of Torts 319 (1866). It was, however, an immunity only against slander and libel actions.
At common law, therefore, Kalina would have been protected by something resembling qualified immunity if she were sued for malicious prosecution. The tortious act in such a case would have been her decision to bring criminal charges against Fletcher, and liability would attach only if Fletcher could prove that the prosecution was malicious, without probable cause, and ultimately unsuccessful. Kalina's false statements as a witness in support of the warrant application would not have been an independent actionable tort (although they might have been evidence of malice or initiation in the malicious prosecution suit), because of the absolute privilege protecting such testimony from suits for defamation.
The Court's long road to what is, superficially at least, the opposite result in today's opinion, began with Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), which granted prosecutors absolute immunity for the "function" of initiating a criminal prosecution. Then, in Briscoe v. LaHue, 460 U.S. 325, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983), the Court extended a similar absolute immunity to the "function" of serving as a witness. And in Malley v. Briggs, supra, it recognized the additional "functional category" of "complaining witness." Since this category was [*134] entitled to only qualified immunity, the Court overturned a directed verdict in favor of a police officer who had caused the plaintiff to be arrested by presenting a judge with a [***484] complaint and an affidavit supporting probable cause. The Court said:
"Complaining witnesses were not absolutely immune at common law. In 1871, the generally accepted rule was that one who procured the issuance of an arrest warrant by submitting a complaint could be held liable if the complaint was made maliciously and without probable cause. Given malice and the lack of probable cause, the complainant enjoyed no immunity." Id. at 340-341.


That statement is correct, but it implies a distinction between "witnesses" (absolutely immune) and "complaining witnesses" (at best qualifiedly immune) which has little foundation in the common law of 1871. That law did not recognize two kinds of witness; it recognized two different torts. "In this sense, then, Malley's discussion of complaining witnesses is a feint. The Court was not awaking to a different type of witness . . . so much as recognizing a different cause of action -- the action for malicious prosecution." Comment, Police Witness Immunity Under § 1983, 56 U. Chi. L. Rev. 1433, 1454 (1989). By the time Malley was decided, however, the Court's methodology forced it to express its conclusion in terms of whether the particular "function" at issue would have been entitled to immunity at common law. See, e.g., Briscoe, supra, at 342 ("our cases clearly indicate that immunity analysis rests on functional categories"). By inventing "a new functional category: the complaining witness, who (in the Court's specially-tailored history) was liable at common law and so is liable under § 1983," Comment, supra, at 1454, Malley moved the Court's immunity jurisprudence much closer to the results the common law would have achieved. [*135]
But no analytical approach based upon "functional analysis" can faithfully replicate the common law, as is demonstrated in the Court's opinion today. By describing the subset of actors in the criminal process who are subject to suit as "complaining witnesses," [**512] the Court implies that testifying is the critical event. But a "complaining witness" could be sued for malicious prosecution whether or not he ever provided factual testimony, so long as he had a role in initiating or procuring the prosecution; in that sense, the "witness" in "complaining witness" is misleading. As applied to the police officers in Malley, that confusion was more or less harmless. Here, however, Imbler and Malley collide to produce a rule that stands the common law on its head: Kalina is absolutely immune from any suit challenging her decision to prosecute or seek an arrest warrant, but can be sued if she changes "functional categories" by providing personal testimony to the Court.
Imbler's principle of absolute prosecutorial immunity, and the "functional categories" approach to immunity questions imposed by cases like Briscoe, make faithful adherence to the common law embodied in § 1983 very difficult. But both Imbler and the "functional" approach are so deeply embedded in our § 1983 jurisprudence that, for reasons of stare decisis, I would not abandon them now. Given those concessions, Malley's distortion of the term "complaining witness" may take us as close to the right answer as we are [***485] likely to get. Because Kalina's conduct clearly places her in that functional category, I agree with the Court that she is not entitled to absolute immunity under our precedents.

REFERENCES: Return To Full Text Opinion

Go to Supreme Court Briefs

to Oral Argument Transcript

15 Am Jur 2d, Civil Rights 269; 63C Am Jur 2d, Prosecuting Attorneys 4-6

42 USCS 1983

L Ed Digest, Civil Rights 32; District and Prosecuting Attorneys 1

L Ed Index, Arrest; District and Prosecuting Attorneys

Annotation References:
Supreme Court's construction of Civil Rights Act of 1871 (42 USCS 1983) providing private right of action for violation of federal rights. 43 L Ed 2d 833.
Civil liability of witness in action under 42 USCS 1983 for deprivation of civil rights, based on testimony given at pretrial criminal proceeding. 94 ALR Fed 892.
When is prosecutor entitled to absolute immunity from civil suit for damages under 42 USCS 1983: post-Imbler cases. 67 ALR Fed 640.

Calderon v. Ashmus, 523 U.S. 740, 118 S.Ct. 1694, 140 L.Ed.2d 970 (U.S. 05/26/1998)

[1] United States Supreme Court


[2] No. 97-391


[3] 523 U.S. 740, 118 S.Ct. 1694, 140 L.Ed.2d 970, 1998, 98 Cal. Daily Op. Serv. 3917, 66 USLW 4382


[4] May 26, 1998


[5] ARTHUR CALDERON, WARDEN, ET AL., PETITIONERS V. TROY A. ASHMUS ETC.


[6] SYLLABUS BY THE COURT


[7] Syllabus


[8] OCTOBER TERM, 1997


[9] CALDERON v. ASHMUS


[10] NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


[11] SUPREME COURT OF THE UNITED STATES


[12] CALDERON, WARDEN, et al. v. ASHMUS, individually and on behalf of all others similarly situated


[13] Certiorari To The United States Court Of Appeals For The Ninth Circuit


[14] No. 97-391.


[15] Argued March 24, 1998


[16] Decided May 26, 1998


[17] Chapter 154 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides, inter alia, an expedited review process -- including a 180-day filing period, 28 U. S. C. A. Section 2263(a) -- for federal habeas proceedings in capital cases in States that meet certain conditions. Proceedings against other States are governed by Chapter 153, which has a 1-year filing period, Section 2244(d)(1), and lacks expedited procedures. After California officials, including petitioner state attorney general, indicated that they would invoke Chapter 154's protections, respondent, a state capital prisoner, sought declaratory and injunctive relief to resolve whether the Chapter applied to a class of capital prisoners whose convictions were affirmed after a particular date. The Federal District Court issued a declaratory judgment, holding that California did not qualify for Chapter 154 and therefore the Chapter did not apply to the class, and enjoined petitioners from invoking the Chapter in any proceedings involving class members. In affirming, the Ninth Circuit rejected petitioners' claim that the Eleventh Amendment barred respondent's suit; determined that the District Court had authority to issue a declaratory judgment under the Federal Declaratory Judgment Act; and rejected petitioners' contention that the injunction violated the First Amendment. Before reaching the Eleventh and First Amendment issues on which certiorari was granted, this Court must address whether the action is the type of "Article III" "case or controversy" to which federal courts are limited. See, e.g., FW/PBS, Inc. v. Dallas, 493 U. S. 215, 230-231.


[18] Held: This action is not a justiciable case under Article III. The Declaratory Judgment Act validly confers jurisdiction on federal courts to enter declaratory judgments in cases where the controversy would admit "of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 241. Here, rather than seeking a final or conclusive determination of the underlying controversy -- whether respondent is entitled to federal habeas relief -- respondent carved out of that claim only the question whether, when he sought habeas relief, California's defense would be governed by Chapter 153 or Chapter 154. He would have obtained such a determination in a habeas action itself, but he seeks instead to have an advance ruling on the collateral issue. The Declaratory Judgment Act cannot be used for this purpose. See, e.g., Coffman v. Breeze Corps., 323 U. S. 316. Such an action's disruptive effects are peculiarly great when the underlying claims must be adjudicated in federal habeas, for it would allow respondent to obtain a declaration as to the applicable limitations period without ever having shown that he has met the exhaustion-of-state-remedies requirement. If class members file habeas petitions and the State asserts Chapter 154, they can litigate California's compliance with the Chapter at that time. The risk associated with resolving the issue in habeas rather than in a pre-emptive suit is no different from risks associated with choices that litigants commonly face. Respondent mistakenly relies on Steffel v. Thompson, 415 U. S. 452, for Steffel falls within the traditional scope of declaratory judgment actions: It completely resolved a concrete controversy susceptible to conclusive judicial determination. Pp. 4-9.


[19] 123 F. 3d 1199, reversed and remanded.


[20] Rehnquist, C. J., delivered the opinion for a unanimous Court. Breyer, J., filed a Concurring opinion, in which Souter, J., joined.


[21] The opinion of the court was delivered by: Chief Justice Rehnquist


[22] Opinion of the Court


[23] CALDERON v. ASHMUS


[24] ____ U. S. ____ (1998)


[25] NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.


[26] On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit


[27] Chapter 154 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. A. Section 2261 et seq. (Supp. 1998), provides certain procedural advantages to qualifying States in federal habeas proceedings. This case requires us to decide whether state death-row inmates may sue state officials for declaratory and injunctive relief limited to determining whether California qualifies under Chapter 154.


[28] Chapter 154 revises procedural rules for federal habeas proceedings in capital cases. Most notably, it provides for an expedited review process in proceedings brought against qualifying States. It imposes a 180-day limitation period for filing a federal habeas petition. Section 2263(a). It treats an untimely petition as a successive petition for purposes of obtaining a stay of execution, Section 2262(c), and it allows a prisoner to amend a petition after an answer is filed only where the prisoner meets the requirements for a successive petition, Section 2266 (b)(3)(B). Chapter 154 also obligates a federal district court to render a final judgment on any petition within 180 days of its filing, and a court of appeals to render a final determination within 120 days of the briefing. Sections 2266(a) and (c).


[29] As a general rule, Chapter 153 -- which has a 1-year filing period, Section 2244(d)(1), and lacks expedited review procedures -- governs federal habeas proceedings against a State. Chapter 154 will apply in capital cases only if the state meets certain conditions. A State must establish "a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel" in state post-conviction proceedings, and "must provide standards of competency for the appointment of such counsel." Section 2261(b) (States with separate postconviction review proceedings); Section 2265(a) (States with unitary review procedures).*fn1 The State must offer counsel to all capital defendants, and the state court must enter an order concerning appointment of counsel. Section 2261(b); Section 2265(b). If a State meets these criteria, then it may invoke Chapter 154.


[30] Various California officials, including petitioner Attorney General Lungren, publicly indicated that they thought California qualified under Chapter 154 and that they intended to invoke the Chapter's protections. Respondent Troy Ashmus, a state prisoner sentenced to death, filed a class action suit against petitioners. The class, which included all capital prisoners in California whose convictions were affirmed on direct appeal after June 6, 1989, sought declaratory and injunctive relief to resolve uncertainty over whether Chapter 154 applied.


[31] The District Court issued a declaratory judgment holding that California does not presently qualify for Chapter 154 and that Chapter 154 therefore does not apply to any class members. It also issued a preliminary injunction enjoining petitioners from "trying or seeking to obtain for the State of California the benefits of the provisions of Chapter 154 . . . in any state or federal proceedings involving any class member." 935 F. Supp. 1048, 1076 (ND Cal. 1996).


[32] The Court of Appeals for the Ninth Circuit affirmed. 123 F. 3d 1199 (1997). As a threshold matter, the Court of Appeals rejected petitioners' claim that the Eleventh Amendment barred respondent's suit as one against the State. The court concluded that the case falls within the Ex parte Young exception to Eleventh Amendment immunity, Ex parte Young, 209 U. S. 123 (1908), because re-spondent sufficiently alleged a continuing violation of federal law. 123 F. 3d, at 1204-1206. California's announced intention to invoke Chapter 154, without having complied with its requirements, threatened to violate the class members' right to thorough federal review of their first habeas petitions, pursuant to Chapter 153, and their right to assistance of counsel in federal habeas proceedings, pursuant to 21 U. S. C. Section 848(q). By stating its intention to invoke Chapter 154, the Court of Appeals reasoned, California forced inmates to make an unacceptable choice: filing a pro se petition within 180 days in order to ensure compliance with Chapter 154, which may fail to raise substantial claims, or waiting until counsel is appointed, which may miss the 180-day filing deadline if Chapter 154 applies. 123 F. 3d, at 1204-1205.


[33] The Court of Appeals also determined that the District Court had authority to issue a declaratory judgment under 28 U. S. C. Section 2201(a). 123 F. 3d, at 1206-1207. It noted that a declaratory judgment plaintiff need only demonstrate an independent basis of federal jurisdiction and an actual case or controversy. Id., at 1206. The District Court had federal question jurisdiction under 28 U. S. C. Section 1331 because the case challenged the interpretation of a federal act. And the case or controversy requirement was satisfied, the court concluded, because "the State's threats to invoke Chapter 154 will significantly affect the plaintiff-class's ability to obtain habeas corpus review by a federal court." 123 F. 3d, at 1207.


[34] The Court of Appeals agreed in large part with the District Court's Conclusion that California does not qualify, and therefore found Chapter 154 inapplicable. In affirming the grant of injunctive relief, the Court of Appeals rejected petitioners' contention that enjoining their advocacy of a particular legal position violates the First Amendment. It thought the injunction did not interfere with the state officials' rights since they were free to voice their opinion that the decision was wrong -- only not in court in order to invoke the benefits of Chapter 154. Id., at 1207-1209.


[35] Petitioners sought review in this Court. We granted certiorari on both the Eleventh Amendment and the First Amendment issues, 522 U. S. __ (1997), but in keeping with our precedents, have decided that we must first address whether this action for a declaratory judgment is the sort of "Article III" "case or controversy" to which federal courts are limited. See, e.g., FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-231 (1990).*fn2


[36] Before the enactment of the Federal Declaratory Judgment Act, this Court expressed the view that a "declaratory judgment" was not within that jurisdiction. Willing v. Chicago Auditorium Assn., 277 U. S. 274, 289 (1928). But in Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249 (1933), the Court held that it did have jurisdiction to review a declaratory judgment granted by a state court. And in Aetna Life Ins. Co. v. Haworth, 300 U. S. 227 (1937), we decided that the Federal Declaratory Judgment Act validly conferred jurisdiction on federal courts to issue declaratory judgments in appropriate cases.


[37] That Act provides that "[i]n a case of actual controversy within its jurisdiction, ... any court of the United States ... may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U. S. C. Section 2201. See also Fed. Rule Civ. Proc. 57. Thus, in Aetna Life Ins., we held that an insurance company could bring a declaratory judgment action to determine the validity of insurance policies. The company and the insured disputed whether the policies had lapsed and how much was currently payable, but the insured had not brought suit to recover benefits. 300 U. S., at 239-240. We observed that the controversy would admit "of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." 300 U. S., at 241. See also Wallace, supra, at 262. We have thus recognized the potential for declaratory judgment suits to fall outside the constitutional definition of a "case" in Article III: a claim " `brought before the court(s) for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs.' " Fairchild v. Hughes, 258 U. S. 126, 129 (1922).


[38] The underlying "controversy" between petitioners and respondent is whether respondent is entitled to federal habeas relief setting aside his sentence or conviction obtained in the California courts. But no such final or conclusive determination was sought in this action. Instead, respondent carved out of that claim only the question of whether, when he sought habeas relief, California would be governed by Chapter 153 or by Chapter 154 in defending the action. Had he brought a habeas action itself, he undoubtedly would have obtained such a determination, but he seeks to have that question determined in anticipation of seeking habeas so that he will be better able to know, for example, the time limits which govern the habeas action.


[39] We think previous decisions of this Court bar the use of the Declaratory Judgment Act for this purpose. In Coffman v. Breeze Corps., 323 U.S. 316 (1945), a patent owner brought suit seeking to have the Royalty Adjustment Act declared unconstitutional and to enjoin his licensee from paying accrued royalties to the government. The Court held that the action presented no case or controversy. The validity of the Act would properly arise only in a suit by the patent holder to recover the royalties, which suit could afford complete and adequate relief. In such a suit, if the licensee were to assert compliance with the Act as a defense to an obligation to pay the amounts due, the patent holder's right of recovery would then depend on a determination of the Act's validity. Id., at 322-323. The Court thus concluded that there was no justiciable question "unless and until [the patent owner] seeks recovery of the royalties, and then only if [the licensee] relies on the Act as a defense." Id., at 324. See also Public Serv. Comm'n of Utah v. Wycoff Co., 344 U. S. 237, 245-246 (1952).


[40] As in Coffman, respondent here seeks a declaratory judgment as to the validity of a defense the State may, or may not, raise in a habeas proceeding. Such a suit does not merely allow the resolution of a "case or controversy" in an alternative format, as in Aetna Life Ins., supra, but rather attempts to gain a litigation advantage by obtaining an advance ruling on an affirmative defense, see Coffman, supra, at 322-324; Wycoff Co., supra, at 245-246. The "case or controversy" actually at stake is the class members' claims in their individual habeas proceedings. Any judgment in this action thus would not resolve the entire case or controversy as to any one of them, but would merely determine a collateral legal issue governing certain aspects of their pending or future suits.


[41] The disruptive effects of an action such as this are peculiarly great when the underlying claim must be adjudicated in a federal habeas proceeding. For we have held that any claim by a prisoner attacking the validity or duration of his confinement must be brought under the habeas sections of Title 28 of the United States Code. Preiser v. Rodriguez, 411 U. S. 475, 500 (1973). As that opinion pointed out, this means that a state prisoner is required to exhaust state remedies before bringing his claim to a federal court. Id., at 489-491. But if respondent Ashmus is allowed to maintain the present action, he would obtain a declaration as to the applicable statute of limitations in a federal habeas action without ever having shown that he has exhausted state remedies. This aberration illustrates the need, emphasized in Coffman and Wycoff, to prevent federal court litigants from seeking by declaratory judgment to litigate a single issue in a dispute which must await another lawsuit for complete resolution.


[42] If the class members file habeas petitions, and the State asserts Chapter 154, the members obviously can litigate California's compliance with Chapter 154 at that time.*fn3 Any risk associated with resolving the question in habeas, rather than a pre-emptive suit, is no different from risks associated with choices commonly faced by litigants.


[43] When asked at oral argument what authority existed for allowing a declaratory judgment suit on an anticipated defense, respondent replied that Steffel v. Thompson, 415 U. S. 452 (1974), allows a declaratory judgment action to prevent interference with federal rights. See also Brief for Respondent 16. Although acknowledging that Steffel involved a continuing threat of arrest in violation of the First Amendment, respondent argued that the Court's decision did not distinguish types of threats. Here, according to respondent, the State's "threat" to assert Chapter 154 in habeas proceedings and the risk that the class members will thereby lose their rights to application of Chapter 153 are sufficient to establish federal court jurisdiction.


[44] Steffel, however, falls within the traditional scope of declaratory judgment actions because it completely resolved a concrete controversy susceptible to conclusive judicial determination. In Steffel, protesters had twice been told they would be arrested for handbilling in front of a shopping center, and the plaintiff's companion had in fact been arrested after disregarding instructions to leave. Id., at 455-456. The imminent threat of state criminal prosecution and the consequent deterrence of the plaintiff's exercise of constitutionally protected rights established a case or controversy. Id., at 459. That controversy could have been completely resolved by the declaratory judgment sought by the plaintiff. Id., at 460-462.


[45] The differences between this case and Steffel are several. Here, California's assertions on Chapter 154 have no coercive impact on the legal rights or obligations of either party. It is the members of the class, and not the State, who anticipate filing lawsuits. Those habeas actions would challenge the validity of their state-court convictions and sentences; the State will oppose such challenges. The present declaratory judgment action would not completely resolve those challenges, but would simply carve out one issue in the dispute for separate adjudication.


[46] We conclude that this action for a declaratory judgment and injunctive relief is not a justiciable case within the meaning of Article III. The judgment of the Court of Appeals accordingly is reversed, and the case is remanded with instructions that respondent's complaint be dismissed.


[47] It is so ordered.


[48] Breyer, J., Concurring


[49] CALDERON v. ASHMUS


[50] ____ U. S. ____ (1998)


[51] SUPREME COURT OF THE UNITED STATES


[52] No. 97-391


[53] ARTHUR CALDERON, WARDEN, et al., PETITIONERS v. TROY A. ASHMUS etc.


[54] on writ of certiorari to the united states court of appeals for the ninth circuit


[55] [May 26, 1998]


[56] Justice Breyer, Concurring, with whom Justice Souter joins.


[57] The Court says that "[respondents] can litigate California's compliance with Chapter 154" when they "file habeas petitions." Ante, at 7. In light of the Court of Appeals' concern, echoed by respondent class members, that without declaratory relief, they would be placed in an untenable remedial "dilemma," Brief for Respondent 16-17, 35-37; 123 F. 3d 1199, 1205 (CA9 1997), I would add that it should prove possible for at least some habeas petitioners to obtain a relatively expeditious judicial answer to the Chapter 154 compliance question and thereby provide legal guidance for others. That is because, in at least some cases, whether a petitioner can or cannot amend, say, a "bare bones" habeas petition (filed within 180 days) will likely depend upon whether California does, or does not, qualify as an "opt-in" State. Compare 28 U. S. C. Section 2242 (ordinary amendment rules); Section 2254 Rule 11 (rules of civil procedure applicable to federal habeas petitions); 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure Section 17.2 (2d ed. 1994 and Supp. 1997) (Federal Rule of Civil Procedure 15's liberal standard for amendment applies to habeas petitions in States not eligible for Chapter 154) with 28 U. S. C. A. Section 2266(b)(3)(B) (Supp. 1998) (setting forth strict standard for amendment applicable where State falls within Chapter 154). And a district court's determination that turned on the legal answer to that question might well qualify for interlocutory appeal. See 28 U. S. C. Section 1292(b) (permitting certification, and hence interlocutory appeal, of certain district court determinations). With this understanding, I join the Court's opinion.



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Opinion Footnotes

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[58] *fn1 It is undisputed here that California is a unitary review State, which is a State that allows prisoners to raise collateral challenges in the course of direct review of the judgment, such that all claims may be raised in a single state appeal. See 28 U. S. C. A. Section 2265(a) (Supp. 1998).


[59] *fn2 While the Eleventh Amendment is jurisdictional in the sense that it is a limitation on the federal court's judicial power, and therefore can be raised at any stage of the proceedings, we have recognized that it is not co-extensive with the limitations on judicial power in Article III. See Idaho v. Coeur d'Alene Tribe of Idaho, 521 U. S. ___, ___ (1997); Patsy v. Board of Regents of Fla., 457 U. S. 496, 515, n. 19 (1982).


[60] *fn3 Respondent conceded this point in earlier briefings. Brief in Opposition 7. Respondent now contends, however, that habeas proceedings will not provide an effective remedy because the class members still will be put in the file-or-default dilemma and because a decision in one case will not relieve the other members of their continuing uncertainty. Brief for Respondent 35-36. But as explained, supra, at 6-7, the dilemma the class members face does not establish a case in the constitutional sense. And the inability to bind the government as to the whole class does not affect that determination.

United States v. Bajakajian, 118 S.Ct. 2028, 141 L.Ed.2d 314 (U.S. 06/22/1998)

[1] United States Supreme Court


[2] No. 96-1487


[3] 118 S.Ct. 2028, 141 L.Ed.2d 314, 1998, 98 Cal. Daily Op. Serv. 3239, 98 Cal. Daily Op. Serv. 4757


[4] June 22, 1998


[5] UNITED STATES, PETITIONER V. HOSEP KRIKOR BAJAKAJIAN


[6] SYLLABUS BY THE COURT


[7] Syllabus


[8] OCTOBER TERM, 1997


[9] UNITED STATES v. BAJAKAJIAN


[10] NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


[11] SUPREME COURT OF THE UNITED STATES


[12] UNITED STATES v. BAJAKAJIAN


[13] Certiorari To The United States Court Of Appeals For The Ninth Circuit


[14] No. 96-1487.


[15] Argued November 4, 1997


[16] Decided June 22, 1998


[17] After customs inspectors found respondent and his family preparing to board an international flight carrying $357,144, he was charged with, inter alia, attempting to leave the United States without reporting, as required by 31 U. S. C. Section 5316(a)(1)(A), that he was transporting more than $10,000 in currency. The Government also sought forfeiture of the $357,144 under 18 U. S. C. Section 982(a)(1), which provides that a person convicted of willfully violating Section 5316 shall forfeit "any property ... involved in such an offense." Respondent pleaded guilty to the failure to report and elected to have a bench trial on the forfeiture. The District Court found, among other things, that the entire $357,144 was subject to forfeiture because it was "involved in" the offense, that the funds were not connected to any other crime, and that respondent was transporting the money to repay a lawful debt. Concluding that full forfeiture would be grossly disproportional to the offense in question and would therefore violate the Excessive Fines Clause of the Eighth Amendment, the court ordered forfeiture of $15,000, in addition to three years' probation and the maximum fine of $5,000 under the Sentencing Guidelines. The Ninth Circuit affirmed, holding that a forfeiture must fulfill two conditions to satisfy the Clause: The property forfeited must be an "instrumentality" of the crime committed, and the property's value must be proportional to its owner's culpability. The court determined that respondent's currency was not an "instrumentality" of the crime of failure to report, which involves the withholding of information rather than the possession or transportation of money; that, therefore, Section 982(a)(1) could never satisfy the Clause in a currency forfeiture case; that it was unnecessary to apply the "proportionality" prong of the test; and that the Clause did not permit forfeiture of any of the unreported currency, but that the court lacked jurisdiction to set the $15,000 forfeiture aside because respondent had not cross-appealed to challenge it.


[18] Held: Full forfeiture of respondent's $357,144 would violate the Excessive Fines Clause. Pp. 5-21.


[19] (a) The forfeiture at issue is a "fine" within the meaning of the Clause, which provides that "excessive fines [shall not be] imposed." The Clause limits the Government's power to extract payments, whether in cash or in kind, as punishment for some offense. Austin v. United States, 509 U. S. 602, 609-610. Forfeitures--payments in kind--are thus "fines" if they constitute punishment for an offense. §§ 982(a)(1) currency forfeitures do so. The statute directs a court to order forfeiture as an additional sanction when "imposing sentence on a person convicted of" a willful violation of Section 5316's reporting requirement. The forfeiture is thus imposed at the culmination of a criminal proceeding and requires conviction of an underlying felony, and it cannot be imposed upon an innocent owner of unreported currency. Cf. id., at 619. The Court rejects the Government's argument that such forfeitures serve important remedial purposes -- by deterring illicit movements of cash and giving the Government valuable information to investigate and detect criminal activities associated with that cash -- because the asserted loss of information here would not be remedied by confiscation of respondent's $357,144. The Government's argument that the Section 982(a)(1) forfeiture is constitutional because it falls within a class of historic forfeitures of property tainted by crime is also rejected. In so arguing, the Government relies upon a series of cases involving traditional civil in rem forfeitures that are inapposite because such forfeitures were historically considered non-punitive. See, e.g., The Palmyra, 12 Wheat. 1, 14-15. Section 982(a)(1) descends from a different historical tradition: that of in personam, criminal forfeitures. Similarly, the Court declines to accept the Government's contention that the forfeiture here is constitutional because it involves an "instrumentality" of respondent's crime. Because instrumentalities historically have been treated as a form of "guilty property" forfeitable in civil in rem proceedings, it is irrelevant whether respondent's currency is an instrumentality; the forfeiture is punitive, and the test for its excessiveness involves solely a proportionality determination. Pp. 5-11.


[20] (b) A punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the offense that it is designed to punish. Although the proportionality principle has always been the touchstone of the inquiry, see, e.g., Austin, supra, at 622-623, the Clause's text and history provide little guidance as to how disproportional a forfeiture must be to be "excessive." Until today, the Court has not articulated a governing standard. In deriving the standard, the Court finds two considerations particularly relevant. The first, previously emphasized in cases interpreting the Cruel and Unusual Punishments Clause, is that judgments about the appropriate punishment belong in the first instance to the legislature. See, e.g., Solem v. Helm, 463 U. S. 277, 290. The second is that any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise. Because both considerations counsel against requiring strict proportionality, the Court adopts the gross disproportionality standard articulated in, e.g., id., at 288. Pp. 11-14.


[21] (c) The forfeiture of respondent's entire $357,144 would be grossly disproportional to the gravity of his offense. His crime was solely a reporting offense. It was permissible to transport the currency out of the country so long as he reported it. And because Section 982(a)(1) orders currency forfeited for a "willful" reporting violation, the essence of the crime is a willful failure to report. Furthermore, the District Court found his violation to be unrelated to any other illegal activities. Whatever his other vices, respondent does not fit into the class of persons for whom the statute was principally designed: money launderers, drug traffickers, and tax evaders. And the maximum penalties that could have been imposed under the Sentencing Guidelines, a 6-month sentence and a $5,000 fine, confirm a minimal level of culpability and are dwarfed by the $357,144 forfeiture sought by the Government. The harm that respondent caused was also minimal. The failure to report affected only the Government, and in a relatively minor way. There was no fraud on the Government and no loss to the public fisc. Had his crime gone undetected, the Government would have been deprived only of the information that $357,144 had left the country. Thus, there is no articulable correlation between the $357,144 and any Government injury. Pp. 14-17.


[22] (d) The Court rejects the contention that the proportionality of full forfeiture is demonstrated by the fact that the First Congress, at roughly the same time the Eighth Amendment was ratified, enacted statutes requiring full forfeiture of goods involved in customs offenses or the payment of monetary penalties proportioned to the goods' value. The early customs statutes do not support the Government's assertion because, unlike Section 982(a)(1), the type of forfeiture they imposed was not considered punishment for a criminal offense, but rather was civil in rem forfeiture, in which the Government proceeded against the "guilty" property itself. See, e.g., Harford v. United States, 8 Cranch 109. Similarly, the early statutes imposing monetary "forfeitures" proportioned to the value of the goods involved were considered not as punishment for an offense, but rather as serving the remedial purpose of reimbursing the Government for the losses accruing from evasion of customs duties. See, e.g., Stockwell v. United States, 13 Wall. 531, 546-547. Pp. 17-21.


[23] 84 F. 3d 334, affirmed.


[24] Thomas, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed a Dissenting opinion, in which Rehnquist, C. J., and O'Connor and Scalia, JJ., joined.


[25] The opinion of the court was delivered by: Justice Thomas


[26] Opinion of the Court


[27] UNITED STATES v. BAJAKAJIAN


[28] ____ U. S. ____ (1998)


[29] NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.


[30] On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit


[31] Respondent Hosep Bajakajian attempted to leave the United States without reporting, as required by federal law, that he was transporting more than $10,000 in currency. Federal law also provides that a person convicted of willfully violating this reporting requirement shall forfeit to the government "any property . . . involved in such offense." 18 U. S. C. Section 982(a)(1). The question in this case is whether forfeiture of the entire $357,144 that respondent failed to declare would violate the Excessive Fines Clause of the Eighth Amendment. We hold that it would, because full forfeiture of respondent's currency would be grossly disproportional to the gravity of his offense.


[32] I.


[33] On June 9, 1994, respondent, his wife, and his two daughters were waiting at Los Angeles International Airport to board a flight to Italy; their final destination was Cyprus. Using dogs trained to detect currency by its smell, customs inspectors discovered some $230,000 in cash in the Bajakajians' checked baggage. A customs inspector approached respondent and his wife and told them that they were required to report all money in excess of $10,000 in their possession or in their baggage. Respondent said that he had $8,000 and that his wife had another $7,000, but that the family had no additional currency to declare. A search of their carry-on bags, purse, and wallet revealed more cash; in all, customs inspectors found $357,144. The currency was seized and respondent was taken into custody.


[34] A federal grand jury indicted respondent on three counts. Count One charged him with failing to report, as required by 31 U. S. C. Section 5316(a)(1)(A),*fn1 that he was transporting more than $10,000 outside the United States, and with doing so "willfully," in violation of Section 5322(a).*fn2 Count Two charged him with making a false material statement to the United States Customs Service, in violation of 18 U. S. C. Section 1001. Count Three sought forfeiture of the $357,144 pursuant to 18 U. S. C. Section 982(a)(1), which provides:


[35] "The court, in imposing sentence on a person convicted of an offense in violation of section . . . 5316, . . . shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property." 18 U. S. C. Section 982(a)(1).


[36] Respondent pleaded guilty to the failure to report in Count One; the Government agreed to dismiss the false statement charge in Count Two; and respondent elected to have a bench trial on the forfeiture in Count Three. After the bench trial, the District Court found that the entire $357,144 was subject to forfeiture because it was "involved in" the offense. Ibid. The court also found that the funds were not connected to any other crime and that respondent was transporting the money to repay a lawful debt. Tr. 61-62 (Jan. 19, 1995). The District Court further found that respondent had failed to report that he was taking the currency out of the United States because of fear stemming from "cultural differences": Respondent, who had grown up as a member of the Armenian minority in Syria, had a "distrust for the Government." Id., at 63; see Tr. of Oral Arg. 30.


[37] Although Section 982(a)(1) directs sentencing courts to impose full forfeiture, the District Court concluded that such forfeiture would be "extraordinarily harsh" and "grossly disproportionate to the offense in question," and that it would therefore violate the Excessive Fines Clause. Tr. 63. The court instead ordered forfeiture of $15,000, in addition to a sentence of three years of probation and a fine of $5,000--the maximum fine under the Sentencing Guidelines--because the court believed that the maximum Guidelines fine was "too little" and that a $15,000 forfeiture would "make up for what I think a reasonable fine should be." Ibid.


[38] The United States appealed, seeking full forfeiture of respondent's currency as provided in Section 982(a)(1). The Court of Appeals for the Ninth Circuit affirmed. 84 F. 3d 334 (1996). Applying Circuit precedent, the Court held that, to satisfy the Excessive Fines Clause, a forfeiture must fulfill two conditions: The property forfeited must be an "instrumentality" of the crime committed, and the value of the property must be proportional to the culpability of the owner. Id., at 336 (citing United States v. Real Property Located in El Dorado County, 59 F. 3d 974, 982 (CA9 1995)). A majority of the panel determined that the currency was not an "instrumentality" of the crime of failure to report because " `[t]he crime [in a currency reporting offense] is the withholding of information, . . . not the possession or the transportation of the money.' " 84 F. 3d, at 337 (quoting United States v. $69,292 in United States Currency, 62 F. 3d 1161, 1167 (CA9 1995)). The majority therefore held that Section 982(a)(1) could never satisfy the Excessive Fines Clause in cases involving forfeitures of currency and that it was unnecessary to apply the "proportionality" prong of the test. Although the panel majority concluded that the Excessive Fines Clause did not permit forfeiture of any of the unreported currency, it held that it lacked jurisdiction to set the $15,000 forfeiture aside because respondent had not cross-appealed to challenge that forfeiture. 84 F. 3d, at 338.


[39] Judge Wallace concurred in the result. He viewed respondent's currency as an instrumentality of the crime because "without the currency, there can be no offense," id., at 339, and he criticized the majority for "strik[ing] down a portion of" the statute, id., at 338. He nonetheless agreed that full forfeiture would violate the Excessive Fines Clause in respondent's case, based upon the "proportionality" prong of the Ninth Circuit test. Finding no clear error in the District Court's factual findings, he concluded that the reduced forfeiture of $15,000 was proportional to respondent's culpability. Id., at 339-340.


[40] Because the Court of Appeals' holding--that the forfeiture ordered by Section 982(a)(1) was per se unconstitutional in cases of currency forfeiture--invalidated a portion of an act of Congress, we granted certiorari. 520 U. S. ___ (1997).


[41] II.


[42] The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U. S. Const., Amdt. 8. This Court has had little occasion to interpret, and has never actually applied, the Excessive Fines Clause. We have, however, explained that at the time the Constitution was adopted, "the word `fine' was understood to mean a payment to a sovereign as punishment for some offense." Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 265 (1989). The Excessive Fines Clause thus "limits the government's power to extract payments, whether in cash or in kind, `as punishment for some offense.' " Austin v. United States, 509 U. S. 602, 609-610 (1993) (emphasis deleted). Forfeitures -- payments in kind -- are thus "fines" if they constitute punishment for an offense.


[43] We have little trouble concluding that the forfeiture of currency ordered by Section 982(a)(1) constitutes punishment. The statute directs a court to order forfeiture as an additional sanction when "imposing sentence on a person convicted of" a willful violation of Section 5316's reporting requirement. The forfeiture is thus imposed at the culmination of a criminal proceeding and requires conviction of an underlying felony, and it cannot be imposed upon an innocent owner of unreported currency, but only upon a person who has himself been convicted of a Section 5316 reporting violation.*fn3 Cf. Austin v. United States, supra, at 619 (holding forfeiture to be a "fine" in part because the forfeiture statute "expressly provide[d] an `innocent owner' defense" and thus "look[ed] . . . like punishment").


[44] The United States argues, however, that the forfeiture of currency under Section 982(a)(1) "also serves important remedial purposes." Brief for United States 20. The Government asserts that it has "an overriding sovereign interest in controlling what property leaves and enters the country." Ibid. It claims that full forfeiture of unreported currency supports that interest by serving to "dete[r] illicit movements of cash" and aiding in providing the Government with "valuable information to investigate and detect criminal activities associated with that cash." Id., at 21. Deterrence, however, has traditionally been viewed as a goal of punishment, and forfeiture of the currency here does not serve the remedial purpose of compensating the Government for a loss. See Black's Law Dictionary 1293 (6th ed. 1990) ("[R]emedial action" is one "brought to obtain compensation or indemnity"); One Lot Emerald Cut Stones v. United States, 409 U. S. 232 (1972) (per curiam) (monetary penalty provides "a reasonable form of liquidated damages," id., at 237, to the Government and is thus a "remedial" sanction because it compensates government for lost revenues). Although the Government has asserted a loss of information regarding the amount of currency leaving the country, that loss would not be remedied by the Government's confiscation of respondent's $357,144.*fn4


[45] The United States also argues that the forfeiture mandated by Section 982(a)(1) is constitutional because it falls within a class of historic forfeitures of property tainted by crime. See Brief for United States 16 (citing, inter alia, The Palmyra, 12 Wheat. 1, 13 (1827) (forfeiture of ship); Dobbins's Distillery v. United States, 96 U. S. 395, 400-401 (1878) (forfeiture of distillery)). In so doing, the Government relies upon a series of cases involving traditional civil in rem forfeitures that are inapposite because such forfeitures were historically considered non-punitive.


[46] The theory behind such forfeitures was the fiction that the action was directed against "guilty property," rather than against the offender himself.*fn5 See, e.g., Various Items of Personal Property v. United States, 282 U. S. 577, 581 (1931) ("[I]t is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient"); see also R. Waples, Proceedings In Rem 13, 205-209 (1882). Historically, the conduct of the property owner was irrelevant; indeed, the owner of forfeited property could be entirely innocent of any crime. See, e.g., Origet v. United States, 125 U. S. 240, 246 (1888) ("[T]he merchandise is to be forfeited irrespective of any criminal prosecution ... The person punished for the offence may be an entirely different person from the owner of the merchandise, or any person interested in it. The forfeiture of the goods of the principal can form no part of the personal punishment of his agent"). As Justice Story explained:


[47] "The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing; and this, whether the offence be malum prohibitum, or malum in se... . [T]he practice has been, and so this Court understand the law to be, that the proceeding in rem stands independent of, and wholly unaffected by any criminal proceeding in personam." The Palmyra, 12 Wheat., at 14-15.


[48] Traditional in rem forfeitures were thus not considered punishment against the individual for an offense. See id., at 14; Dobbins's Distillery v. United States, supra, at 401; Van Oster v. Kansas, 272 U. S. 465, 467-468 (1926); Calero&nbhyph;Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 683-684 (1974); Taylor v. United States, 3 How. 197, 210 (1845) (opinion of Story, J.) (laws providing for in rem forfeiture of goods imported in violation of customs laws, although in one sense "imposing a penalty or forfeiture[,] . . . truly deserve to be called, remedial"); see also United States v. Ursery, 518 U. S. 267, 293 (1996) (Kennedy, J., Concurring) ("[C]ivil in rem forfeiture is not punishment of the wrongdoer for his criminal offense"). Because they were viewed as non-punitive, such forfeitures traditionally were considered to occupy a place outside the domain of the Excessive Fines Clause. Recognizing the non-punitive character of such proceedings, we have held that the Double Jeopardy Clause does not bar the institution of a civil, in rem forfeiture action after the criminal conviction of the defendant. See id., at 278.*fn6


[49] The forfeiture in this case does not bear any of the hallmarks of traditional civil in rem forfeitures. The Government has not proceeded against the currency itself, but has instead sought and obtained a criminal conviction of respondent personally. The forfeiture serves no remedial purpose, is designed to punish the offender, and cannot be imposed upon innocent owners.


[50] Section 982(a)(1) thus descends not from historic in rem forfeitures of guilty property, but from a different historical tradition: that of in personam, criminal forfeitures. Such forfeitures have historically been treated as punitive, being part of the punishment imposed for felonies and treason in the Middle Ages and at common law. See W. McKechnie, Magna Carta 337-339 (2d ed. 1958); 2 F. Pollock & F. Maitland, The History of English Law 460-466 (2d ed. 1909). Although in personam criminal forfeitures were well established in England at the time of the Founding, they were rejected altogether in the laws of this country until very recently.*fn7


[51] The Government specifically contends that the forfeiture of respondent's currency is constitutional because it involves an "instrumentality" of respondent's crime.*fn8 According to the Government, the unreported cash is an instrumentality because it "does not merely facilitate a violation of law," but is " `the very sine qua non of the crime.' " Brief for United States 20 (quoting United States v. United States Currency in the Amount of One Hundred Forty-Five Thousand, One Hundred Thirty-Nine Dollars, 18 F. 3d 73, 75 (CA2), cert. denied sub nom. Etim v. United States, 513 U. S. 815 (1994)). The Government reasons that "there would be no violation at all without the exportation (or attempted exportation) of the cash." Brief for United States 20.


[52] Acceptance of the Government's argument would require us to expand the traditional understanding of instrumentality forfeitures. This we decline to do. Instrumentalities historically have been treated as a form of "guilty property" that can be forfeited in civil in rem proceedings. In this case, however, the Government has sought to punish respondent by proceeding against him criminally, in personam, rather than proceeding in rem against the currency. It is therefore irrelevant whether respondent's currency is an instrumentality; the forfeiture is punitive, and the test for the excessiveness of a punitive forfeiture involves solely a proportionality determination. See infra, at 11-14.*fn9


[53] III.


[54] Because the forfeiture of respondent's currency constitutes punishment and is thus a "fine" within the meaning of the Excessive Fines Clause, we now turn to the question of whether it is "excessive."


[55] A.


[56] The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. See Austin v. United States, 509 U. S., at 622-623 (noting Court of Appeals' statement that " `the government is exacting too high a penalty in relation to the offense committed' "); Alexander v. United States, 509 U. S. 544, 559 (1993) ("It is in the light of the extensive criminal activities which petitioner apparently conducted ... that the question whether the forfeiture was `excessive' must be considered"). Until today, however, we have not articulated a standard for determining whether a punitive forfeiture is constitutionally excessive. 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.


[57] The text and history of the Excessive Fines Clause demonstrate the centrality of proportionality to the excessiveness inquiry; nonetheless, they provide little guidance as to how disproportional a punitive forfeiture must be to the gravity of an offense in order to be "excessive." Excessive means surpassing the usual, the proper, or a normal measure of proportion. See 1 N. Webster, American Dictionary of the English Language (1828) (defining excessive as "beyond the common measure or proportion"); S. Johnson, A Dictionary of the English Language 680 (4th ed. 1773) ("[b]eyond the common proportion"). The constitutional question that we address, however, is just how proportional to a criminal offense a fine must be, and the text of the Excessive Fines Clause does not answer it.


[58] Nor does its history. The Clause was little discussed in the First Congress and the debates over the ratification of the Bill of Rights. As we have previously noted, the Clause was taken verbatim from the English Bill of Rights of 1689. See Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S., at 266-267. That document's prohibition against excessive fines was a reaction to the abuses of the King's Judges during the reigns of the Stuarts, id., at 267, but the fines that those Judges imposed were described contemporaneously only in the most general terms. See Earl of Devonshire's Case, 11 State Tr. 1367, 1372 (H. L. 1689) (fine of £ ;30,000 "excessive and exorbitant, against Magna Charta, the common right of the subject, and the law of the land"). Similarly, Magna Charta--which the Stuart Judges were accused of subverting--required only that amercements (the medieval predecessors of fines) should be proportioned to the offense and that they should not deprive a wrongdoer of his livelihood:


[59] "A Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement; (2) and a Merchant likewise, saving to him his merchandise; (3) and any other's villain than ours shall be likewise amerced, saving his wainage." Magna Charta, 9 Hen. III, ch. 14 (1225), 1 Stat. at Large 6-7 (1762 ed.).


[60] None of these sources suggests how disproportional to the gravity of an offense a fine must be in order to be deemed constitutionally excessive.


[61] We must therefore rely on other considerations in deriving a constitutional excessiveness standard, and there are two that we find particularly relevant. The first, which we have emphasized in our cases interpreting the Cruel and Unusual Punishments Clause, is that judgments about the appropriate punishment for an offense belong in the first instance to the legislature. See, e.g., Solem v. Helm, 463 U. S. 277, 290 (1983) ("Reviewing courts ... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes"); see also Gore v. United States, 357 U. S. 386, 393 (1958) ("Whatever views may be entertained regarding severity of punishment, ... these are peculiarly questions of legislative policy"). The second is that any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise. Both of these principles counsel against requiring strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense, and we therefore adopt the standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause precedents. See, e.g., Solem v. Helm, supra, at 288; Rummel v. Estelle, 445 U. S. 263, 271 (1980).


[62] In applying this standard, the district courts in the first instance, and the courts of appeals, reviewing the proportionality determination de novo,*fn10 must compare the amount of the forfeiture to the gravity of the defendant's offense. If the amount of the forfeiture is grossly disproportional to the gravity of the defendant's offense, it is unconstitutional.


[63] B.


[64] Under this standard, the forfeiture of respondent's entire $357,144 would violate the Excessive Fines Clause.*fn11 Respondent's crime was solely a reporting offense. It was permissible to transport the currency out of the country so long as he reported it. Section 982(a)(1) orders currency to be forfeited for a "willful" violation of the reporting requirement. Thus, the essence of respondent's crime is a willful failure to report the removal of currency from the United States.*fn12 Furthermore, as the District Court found, respondent's violation was unrelated to any other illegal activities. The money was the proceeds of legal activity and was to be used to repay a lawful debt. Whatever his other vices, respondent does not fit into the class of persons for whom the statute was principally designed: He is not a money launderer, a drug trafficker, or a tax evader.*fn13 See Brief for United States 2-3. And under the Sentencing Guidelines, the maximum sentence that could have been imposed on respondent was six months, while the maximum fine was $5,000. App. to Pet. for Cert. 17a (transcript of District Court sentencing hearing); United States Sentencing Commission, Guidelines Manual, Section 5(e)1.2, Sentencing Table (Nov. 1994). Such penalties confirm a minimal level of culpability.*fn14


[65] The harm that respondent caused was also minimal. Failure to report his currency affected only one party, the Government, and in a relatively minor way. There was no fraud on the United States, and respondent caused no loss to the public fisc. Had his crime gone undetected, the Government would have been deprived only of the information that $357,144 had left the country. The Government and the Dissent contend that there is a correlation between the amount forfeited and the harm that the Government would have suffered had the crime gone undetected. See Brief for United States 30 (forfeiture is "perfectly calibrated"); post, at 1 ("a fine calibrated with this accuracy"). We disagree. There is no inherent proportionality in such a forfeiture. It is impossible to conclude, for example, that the harm respondent caused is anywhere near 30 times greater than that caused by a hypothetical drug dealer who willfully fails to report taking $12,000 out of the country in order to purchase drugs.


[66] Comparing the gravity of respondent's crime with the $357,144 forfeiture the Government seeks, we conclude that such a forfeiture would be grossly disproportional to the gravity of his offense.*fn15 It 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.


[67] C.


[68] Finally, we must reject the contention that the proportionality of full forfeiture is demonstrated by the fact that the First Congress enacted statutes requiring full forfeiture of goods involved in customs offenses or the payment of monetary penalties proportioned to the goods' value. It is argued that the enactment of these statutes at roughly the same time that the Eighth Amendment was ratified suggests that full forfeiture, in the customs context at least, is a proportional punishment. The early customs statutes, however, do not support such a Conclusion because, unlike Section 982(a)(1), the type of forfeiture that they imposed was not considered punishment for a criminal offense.


[69] Certain of the early customs statutes required the forfeiture of goods imported in violation of the customs laws, and, in some instances, the vessels carrying them as well. See, e.g., Act of Aug. 4, 1790, Section 27, 1 Stat. 163 (goods unladen without a permit from the collector). These forfeitures, however, were civil in rem forfeitures, in which the Government proceeded against the property itself on the theory that it was guilty, not against a criminal defendant. See, e.g., Harford v. United States, 8 Cranch 109 (1814) (goods unladen without a permit); Locke v. United States, 7 Cranch 339, 340 (1813) (same). Such forfeitures sought to vindicate the Government's underlying property right in customs duties, and like other traditional in rem forfeitures, they were not considered at the Founding to be punishment for an offense. See supra, at 8-9. They therefore indicate nothing about the proportionality of the punitive forfeiture at issue here. Ibid.*fn16


[70] Other statutes, however, imposed monetary "forfeitures" proportioned to the value of the goods involved. See, e.g., Act of July 31, 1789, Section 22, 1 Stat. 42 (if an importer, "with design to defraud the revenue," did not invoice his goods at their actual cost at the place of export, "all such goods, wares or merchandise, or the value thereof . . . shall be forfeited"); Section 25, id., at 43 (any person concealing or purchasing goods, knowing they were liable to seizure for violation of the customs laws, was liable to "forfeit and pay a sum double the value of the goods so concealed or purchased"); see also Act of Aug. 4, 1790, Sections 10, 14, 22, id., at 156, 158, 161. Similar statutes were passed in later Congresses. See, e.g., Act of Mar. 2, 1799, Sections 24, 28, 45, 46, 66, 69, 79, 84, id., at 646, 648, 661, 662, 677, 678, 687, 694; Act of Mar. 3, 1823, ch. 58, Section 1, 3 Stat. 781.


[71] These "forfeitures" were similarly not considered punishments for criminal offenses. This Court so recognized in Stockwell v. United States, 13 Wall. 531 (1871), a case interpreting a statute that, like the Act of July 31, 1789, provided that a person who had concealed goods liable to seizure for customs violations should "forfeit and pay a sum double the amount or value of the goods." Act of Mar. 3, 1823, ch. 58, Section 2, 3 Stat. 781-782. The Stockwell Court rejected the defendant's contention that this provision was "penal," stating instead that it was "fully as remedial in its character, designed as plainly to secure [the] rights [of the Government], as are the statutes rendering importers liable to duties." 13 Wall., at 546. The Court reasoned:


[72] "When foreign merchandise, subject to duties, is imported into the country, the act of importation imposes on the importer the obligation to pay the legal charges. Besides this the goods themselves, if the duties be not paid, are subject to seizure . . . . Every act, therefore, which interferes with the right of the government to seize and appropriate the property which has been forfeited to it . . . is a wrong to property rights, and is a fit subject for indemnity." Id., at 546.


[73] Significantly, the fact that the forfeiture was a multiple of the value of the goods did not alter the Court's Conclusion:


[74] "The act of abstracting goods illegally imported, receiving, concealing, or buying them, interposes difficulties in the way of a government seizure, and impairs, therefore, the value of the government right. It is, then, hardly accurate to say that the only loss the government can sustain from concealing the goods liable to seizure is their single value ... . Double the value may not be more than complete indemnity." Id., at 546-547.


[75] The early monetary forfeitures, therefore, were considered not as punishment for an offense, but rather as serving the remedial purpose of reimbursing the Government for the losses accruing from the evasion of customs duties.*fn17 They were thus no different in purpose and effect than the in rem forfeitures of the goods to whose value they were proportioned.*fn18 Cf. One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 237 (1972) (per curiam) (customs statute requiring the forfeiture of undeclared goods concealed in baggage and imposing a monetary penalty equal to the value of the goods imposed a "remedial, rather than [a] punitive sanctio[n]").*fn19 By contrast, the full forfeiture mandated by Section 982(a)(1) in this case serves no remedial purpose; it is clearly punishment. The customs statutes enacted by the First Congress, therefore, in no way suggest that Section 982(a)(1)'s currency forfeiture is constitutionally proportional.


[76] For the foregoing reasons, the full forfeiture of respondent's currency would violate the Excessive Fines Clause. The judgment of the Court of Appeals is


[77] Affirmed.


[78] Kennedy, J., Dissenting


[79] UNITED STATES v. BAJAKAJIAN


[80] ____ U. S. ____ (1998)


[81] SUPREME COURT OF THE UNITED STATES


[82] No. 96-1487


[83] UNITED STATES, PETITIONER v. HOSEP KRIKOR BAJAKAJIAN


[84] on writ of certiorari to the united states court of appeals for the ninth circuit


[85] [June 22, 1998]


[86] Justice Kennedy, with whom The Chief Justice, Justice O'Connor, and Justice Scalia join, Dissenting.


[87] For the first time in its history, the Court strikes down a fine as excessive under the Eighth Amendment. The decision is disturbing both for its specific holding and for the broader upheaval it foreshadows. At issue is a fine Congress fixed in the amount of the currency respondent sought to smuggle or to transport without reporting. If a fine calibrated with this accuracy fails the Court's test, its decision portends serious disruption of a vast range of statutory fines. The Court all but says the offense is not serious anyway. This disdain for the statute is wrong as an empirical matter and disrespectful of the separation of powers. The irony of the case is that, in the end, it may stand for narrowing constitutional protection rather than enhancing it. To make its rationale work, the Court appears to remove important classes of fines from any excessiveness inquiry at all. This, too, is unsound; and with all respect, I Dissent.


[88] I.


[89] A


[90] In striking down this forfeiture, the majority treats many fines as "remedial" penalties even though they far exceed the harm suffered. Remedial penalties, the Court holds, are not subject to the Excessive Fines Clause at all. See, e.g., ante, at 20. Proceeding from this premise, the majority holds customs fines are remedial and not at all punitive, even if they amount to many times the duties due on the goods. See ante, at 19-22. In the majority's universe, a fine is not a punishment even if it is much larger than the money owed. This confuses whether a fine is excessive with whether it is a punishment.


[91] This novel, mistaken approach requires reordering a tradition existing long before the Republic and confirmed in its early years. The Court creates its category to reconcile its unprecedented holding with a six-century-long tradition of in personam customs fines equal to one, two, three, or even four times the value of the goods at issue. E.g., Cross v. United States, 6 F. Cas. 892 (No. 3,434) (CC Mass. 1812) (Story, J., Cir. J.); United States v. Riley, 88 F. 480 (SDNY 1898); United States v. Jordan, 26 F. Cas. 661 (No. 15,498) (Mass. 1876); In re Vetterlein, 28 F. Cas. 1172 (No. 16,929) (CC SDNY 1875); United States v. Hughes, 26 F. Cas. 417 (No. 15,417) (CC SDNY 1875); McGlinchy v. United States, 16 F. Cas. 118 (No. 8,803) (CC Me. 1875); United States v. Hutchinson, 26 F. Cas. 446 (No. 15,431) (Me. 1868); Tariff Act of 1930, Section 497, 46 Stat. 728, as amended, 19 U. S. C. Section 1497(a) (failing to declare goods); Act of Mar. 3, 1863, Section 1, 12 Stat. 738 (same); Act of Mar. 3, 1823, ch. 58, Section 1, 3 Stat. 781 (importing without a manifest); Act of Mar. 2, 1799, Sections 46, 79, 84, 1 Stat. 662, 687, 694 (failing to declare goods; failing to re-export goods; making false entries on forms); Act of Aug. 4, 1790, Sections 10, 14, 22, 1 Stat. 156, 158, 161 (submitting incomplete manifests; unloading before customs; unloading duty-free goods); Act of July 31, 1789, Sections 22, 25, 1 Stat. 42, 43 (using false invoices; buying uncustomed goods); King v. Manning, 2 Comyns 616, 92 Eng. Rep. 1236 (K. B. 1738) (assisting smugglers); 1 Eliz. 1, ch. 11, Section 5 (1558-1559) (Eng.) (declaring goods under wrong person's name); 1 & 2 Phil. & M., ch. 5, Sections 1, 3 (1554-1555) (Eng.) (exporting food without a license; exporting more food than the license allowed); 5 Rich. 2, Stat. 1, chs. 2, 3 (1381) (Eng.) (exporting gold or silver without a license; using ships other than those of the King's allegiance).


[92] In order to sweep all these precedents aside, the majority's remedial analysis assumes the settled tradition was limited to "reimbursing the Government for" unpaid duties. Ante, at 20. The assumption is wrong. Many offenses did not require a failure to pay a duty at all. See, e.g., Act of Mar. 3, 1863, Section 1, 12 Stat. 738 (importing under false invoices); Act of Mar. 3, 1823, ch. 58, Section 1, 3 Stat. 781 (failing to deliver ship's manifest); Act of Mar. 2, 1799, Section 28, 1 Stat. 648 (transferring goods from one ship to another); Act of Aug. 4, 1790, Section 14, 1 Stat. 158 (same); 5 Rich. II, st. 1, ch. 2 (1381) (Eng.) (exporting gold or silver without a license). None of these in personam penalties depended on a compensable monetary loss to the government. True, these offenses risked causing harm, ante, at 20, n. 17, but so does smuggling or not reporting cash. A sanction proportioned to potential rather than actual harm is punitive, though the potential harm may make the punishment a reasonable one. See TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 460-462 (1993) (opinion of Stevens, J.). The majority nonetheless treats the historic penalties as non-punitive and thus not subject to the Excessive Fines Clause, though they are indistinguishable from the fine in this case. (It is a mark of the Court's doctrinal difficulty that we must speak of non-punitive penalties, which is a contradiction in terms.)


[93] Even if the majority's typology were correct, it would have to treat the instant penalty as non-punitive. In this respect, the Court cannot distinguish the case on which it twice relies, One Lot Emerald Cut Stones v. United States, 409 U. S. 232 (1972) (per curiam). Ante, at 6, 21. Emerald Stones held forfeiture of smuggled goods plus a fine equal to their value was remedial and not punitive, for purposes of double jeopardy, because the fine "serves to reimburse the Government for investigation and enforcement expenses." 409 U. S., at 237. The logic, however, applies with equal force here. Forfeiture of the money involved in the offense would compensate for the investigative and enforcement expenses of the Customs Service. There is no reason to treat the cases differently, just because a small duty was at stake in one and a disclosure form in the other. See Bollinger's Champagne, 3 Wall. 560, 564 (1866) (holding falsehoods on customs forms justify forfeiture even if the lies do not affect the duties due and paid). The majority, in short, is not even faithful to its own artificial category of remedial penalties.


[94] B


[95] The majority's novel holding creates another anomaly as well. The majority suggests in rem forfeitures of the instrumentalities of crimes are not fines at all. See ante, at 10-11, and nn. 8, 9. The point of the instrumentality theory is to distinguish goods having a "close enough relationship to the offense" from those incidentally related to it. Austin v. United States, 509 U. S. 602, 628 (Scalia, J., Concurring in part and Concurring in judgment). From this, the Court concludes the money in a cash smuggling or non-reporting offense cannot be an instrumentality, unlike, say, a car used to transport goods concealed from taxes. Ante, at 11, n. 9. There is little logic in this rationale. The car plays an important role in the offense but is not essential; one could also transport goods by jet or by foot. The link between the cash and the cash-smuggling offense is closer, as the offender must fail to report while smuggling more than $10,000. See 31 U. S. C. Sections 5316(a), 5322(a). The cash is not just incidentally related to the offense of cash smuggling. It is essential, whereas the car is not. Yet the car plays an important enough role to justify forfeiture, as the majority concedes. A fortiori, the cash does as well. Even if there were a clear distinction between instrumentalities and incidental objects, when the Court invokes the distinction it gets the results backwards.


[96] II.


[97] Turning to the question of excessiveness, the majority states the test: A defendant must prove a gross disproportion before a court will strike down a fine as excessive. See ante, at 12. This test would be a proper way to apply the Clause, if only the majority were faithful in applying it. The Court does not, however, explain why in this case forfeiture of all of the cash would have suffered from a gross disproportion. The offense is a serious one, and respondent's smuggling and failing to report were willful. The cash was lawful to own, but this fact shows only that the forfeiture was a fine; it cannot also prove that the fine was excessive.


[98] The majority illuminates its test with a principle of deference. Courts " `should grant substantial deference to the broad authority that legislatures necessarily possess' " in setting punishments. Ante, at 13 (quoting Solem v. Helm, 463 U. S. 277, 290 (1983)). Again, the principle is sound but the implementation is not. The majority's assessment of the crime accords no deference, let alone substantial deference, to the judgment of Congress. Congress deems the crime serious, but the Court does not. Under the congressional statute, the crime is punishable by a prison sentence, a heavy fine, and the forfeiture here at issue. As the statute makes clear, the Government needs the information to investigate other serious crimes, and it needs the penalties to ensure compliance.


[99] A.


[100] By affirming, the majority in effect approves a meager $15,000 forfeiture. The majority's holding purports to be narrower, saying only that forfeiture of the entire $357,144 would be excessive. Ante, at 14, and n. 11. This narrow holding is artificial in constricting the question presented for this Court's review. The statute mandates forfeiture of the entire $357,144. See 18 U. S. C. Section 982(a)(1). The only ground for reducing the forfeiture, then, is that any higher amount would be unconstitutional. The majority affirms the reduced $15,000 forfeiture on de novo review, see ante, at 14, and n. 11, which it can do only if a forfeiture of even $15,001 would have suffered from a gross disproportion. Indeed, the majority leaves open whether the $15,000 forfeiture itself was too great. See ante, at 14, n. 11. Money launderers, among the principal targets of this statute, may get an even greater return from their crime.


[101] The majority does not explain why respondent's knowing, willful, serious crime deserves no higher penalty than $15,000. It gives only a cursory explanation of why forfeiture of all of the money would have suffered from a gross disproportion. The majority justifies its evisceration of the fine because the money was legal to have and came from a legal source. See ante, at 16. This fact, however, shows only that the forfeiture was a fine, not that it was excessive. As the majority puts it, respondent's money was lawful to possess, was acquired in a lawful manner, and was lawful to export. Ante, at 15-16. It was not, however, lawful to possess the money while concealing and smuggling it. Even if one overlooks this problem, the apparent lawfulness of the money adds nothing to the argument. If the items possessed had been dangerous or unlawful to own, for instance narcotics, the forfeiture would have been remedial and would not have been a fine at all. See Austin, 509 U. S., at 621; e.g., United States v. One Assortment of 89 Firearms, 465 U. S. 354, 364 (1984) (unlicensed guns); Commonwealth v. Dana, 43 Mass. 329, 337 (1841) (forbidden lottery tickets). If respondent had acquired the money in an unlawful manner, it would have been forfeitable as proceeds of the crime. As a rule, forfeitures of criminal proceeds serve the non-punitive ends of making restitution to the rightful owners and of compelling the surrender of property held without right or ownership. See United States v. Ursery, 518 U. S. 267, 284 (1996). Most forfeitures of proceeds, as a consequence, are not fines at all, let alone excessive fines. Hence, the lawfulness of the money shows at most that the forfeiture was a fine; it cannot at the same time prove that the fine was excessive.


[102] B.


[103] 1.


[104] In assessing whether there is a gross disproportion, the majority concedes, we must grant " `substantial defer-ence' " to Congress' choice of penalties. Ante, at 13 (quoting Solem, 463 U. S., at 290). Yet, ignoring its own command, the Court sweeps aside Congress' reasoned judgment and substitutes arguments that are little more than speculation.


[105] Congress considered currency smuggling and non-reporting a serious crime and imposed commensurate penalties. It authorized punishments of five years' imprisonment, a $250,000 fine, plus forfeiture of all the undeclared cash. 31 U. S. C. Section 5322(a); 18 U. S. C. Section 982(a)(1). Congress found the offense standing alone is a serious crime, for the same statute doubles the fines and imprisonment for failures to report cash "while violating another law of the United States." 31 U. S. C. Section 5322(b). Congress experimented with lower penalties on the order of one year in prison plus a $1,000 fine, but it found the punishments inadequate to deter lucrative money laundering. See President's Commission on Organized Crime, The Cash Connection: Organized Crime, Financial Institutions, and Money Laundering 27, 60 (Oct. 1984). The Court today rejects this judgment.


[106] The Court rejects the congressional judgment because, it says, the Sentencing Guidelines cap the appropriate fine at $5,000. See ante, at 16, and n. 14. The purpose of the Guidelines, however, is to select punishments with precise proportion, not to opine on what is a gross disproportion. In addition, there is no authority for elevating the Commission's judgment of what is prudent over the congressional judgment of what is constitutional. The majority, then, departs from its promise of deference in the very case announcing the standard.


[107] The Court's argument is flawed, moreover, by a serious misinterpretation of the Guidelines on their face. The Guidelines do not stop at the $5,000 fine the majority cites. They augment it with this vital point: "Forfeiture is to be imposed upon a convicted defendant as provided by statute." United States Sentencing Commission, Guidelines Manual Section 5E1.4 (Nov. 1995). The fine thus supplements the forfeiture; it does not replace it. Far from contradicting congressional judgment on the offense, the Guidelines implement and mandate it.


[108] 2.


[109] The crime of smuggling or failing to report cash is more serious than the Court is willing to acknowledge. The drug trade, money laundering, and tax evasion all depend in part on smuggled and unreported cash. Congress enacted the reporting requirement because secret exports of money were being used in organized crime, drug trafficking, money laundering, and other crimes. See H. R. Rep. No. 91-975, pp. 12-13 (1970). Likewise, tax evaders were using cash exports to dodge hundreds of millions of dollars in taxes owed to the Government. See ibid.


[110] The Court does not deny the importance of these interests but claims they are not implicated here because respondent managed to disprove any link to other crimes. Here, to be sure, the Government had no affirmative proof that the money was from an illegal source or for an illegal purpose. This will often be the case, however. By its very nature, money laundering is difficult to prove; for if the money launderers have done their job, the money appears to be clean. The point of the statute, which provides for even heavier penalties if a second crime can be proved, is to mandate forfeiture regardless. See 31 U. S. C. Section 5322(b); 18 U. S. C. Section 982(a)(1). It is common practice, of course, for a cash courier not to confess a tainted source but to stick to a well-rehearsed story. The kingpin, the real owner, need not come forward to make a legal claim to the funds. He has his own effective enforcement measures to ensure delivery at destination or return at origin if the scheme is thwarted. He is, of course, not above punishing the courier who deviates from the story and informs. The majority is wrong, then, to assume in personam forfeitures cannot affect kingpins, as their couriers will claim to own the money and pay the penalty out of their masters' funds. See ante, at 6, n. 3. Even if the courier confessed, the kingpin could face an in personam forfeiture for his agent's authorized acts, for the kingpin would be a co-principal in the commission of the crime. See 18 U. S. C. Section 2.


[111] In my view, forfeiture of all the unreported currency is sustainable whenever a willful violation is proven. The facts of this case exemplify how hard it can be to prove ownership and other crimes, and they also show respondent is far from an innocent victim. For one thing, he was guilty of repeated lies to Government agents and suborning lies by others. Customs inspectors told respondent of his duty to report cash. He and his wife claimed they had only $15,000 with them, not the $357,144 they in fact had concealed. He then told customs inspectors a friend named Abe Ajemian had lent him about $200,000. Ajemian denied this. A month later, respondent said Saeed Faroutan had lent him $170,000. Faroutan, however, said he had not made the loan and respondent had asked him to lie. Six months later, respondent resurrected the fable of the alleged loan from Ajemian, though Ajemian had already contradicted the story. As the District Court found, respondent "has lied, and has had his friends lie." Tr. 54 (Jan. 19, 1995). He had proffered a "suspicious and confused story, documented in the poorest way, and replete with past misrepresentation." Id., at 61-62.


[112] Respondent told these lies, moreover, in most suspicious circumstances. His luggage was stuffed with more than a third of a million dollars. All of it was in cash, and much of it was hidden in a case with a false bottom.


[113] The majority ratifies the District Court's see-no-evil approach. The District Court ignored respondent's lies in assessing a sentence. It gave him a two-level downward adjustment for acceptance of responsibility, instead of an increase for obstruction of Justice. See id., at 62. It dismissed the lies as stemming from "distrust for the Government" arising out of "cultural differences." Id., at 63. While the majority is sincere in not endorsing this excuse, ante, at 15, n. 12, it nonetheless affirms the fine tainted by it. This patronizing excuse demeans millions of law-abiding American immigrants by suggesting they cannot be expected to be as truthful as every other citizen. Each American, regardless of culture or ethnicity, is equal before the law. Each has the same obligation to refrain from perjury and false statements to the Government.


[114] In short, respondent was unable to give a single truthful explanation of the source of the cash. The multitude of lies and suspicious circumstances points to some form of crime. Yet, though the Government rebutted each and every fable respondent proffered, it was unable to adduce affirmative proof of another crime in this particular case.


[115] Because of the problems of individual proof, Congress found it necessary to enact a blanket punishment. See S. Rep. No. 99-130, p. 21 (1985); see also Drug Money Laundering Control Efforts, Hearing before the Subcommittee on Consumer and Regulatory Affairs of the Senate Banking, Housing, and Urban Affairs Committee, 101st Cong., 1st Sess., 84 (1989) (former IRS agent found it " `unbelievably difficult' " to discern which money flows were legitimate and which were tied to crime). One of the few reliable warning signs of some serious crimes is the use of large sums of cash. See id., at 83. So Congress punished all cash smuggling or non-reporting, authorizing single penalties for the offense alone and double penalties for the offense coupled with proof of other crimes. See 31 U. S. C. Sections 5322(a), (b). The requirement of willfulness, it Judged, would be enough to protect the innocent. See ibid. The majority second-guesses this judgment without explaining why Congress' blanket approach was unreasonable.


[116] Money launderers will rejoice to know they face forfeitures of less than 5% of the money transported, provided they hire accomplished liars to carry their money for them. Five percent, of course, is not much of a deterrent or punishment; it is comparable to the fee one might pay for a mortgage lender or broker. Cf. 15 U. S. C. Section 1602(aa)(1)(B) (high-cost mortgages cost more than 8% in points and fees). It is far less than the 20-26% commissions some drug dealers pay money launderers. See Hearings on Money Laundering and the Drug Trade before the Subcommittee on Crime of the House Judiciary Committee, 105th Cong., 1st Sess. ___ (1997) (testimony of M. Zeldin); Andelman, The Drug Money Maze, 73 Foreign Affairs 108 (July/August 1994). Since many couriers evade detection, moreover, the average forfeiture per dollar smuggled could amount, courtesy of today's decision, to far less than 5%. In any event, the fine permitted by the majority would be a modest cost of doing business in the world of drugs and crime. See US/Mexico Bi-National Drug Threat Assessment 84 (Feb. 1997) (to drug dealers, transaction costs of 13%-15% are insignificant compared to their enormous profit margins).


[117] Given the severity of respondent's crime, the Constitution does not forbid forfeiture of all of the smuggled or unreported cash. Congress made a considered judgment in setting the penalty, and the Court is in serious error to set it aside.


[118] III.


[119] The Court's holding may in the long run undermine the purpose of the Excessive Fines Clause. One of the main purposes of the ban on excessive fines was to prevent the King from assessing unpayable fines to keep his enemies in debtor's prison. See Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 267 (1989); 4 W. Blackstone, Commentaries on the Laws of England 373 (1769) ("[C]orporal punishment, or a stated imprisonment, ... is better than an excessive fine, for that amounts to imprisonment for life. And this is the reason why fines in the king's court are frequently denominated ransoms ... .") Concern with imprisonment may explain why the Excessive Fines Clause is coupled with, and follows right after, the Excessive Bail Clause. While the concern is not implicated here -- for of necessity the money is there to satisfy the forfeiture -- the Court's restrictive approach could subvert this purpose. Under the Court's holding, legislators may rely on mandatory prison sentences in lieu of fines. Drug lords will be heartened by this, knowing the prison terms will fall upon their couriers while leaving their own wallets untouched.


[120] At the very least, today's decision will encourage legislatures to take advantage of another avenue the majority leaves open. The majority subjects this forfeiture to scrutiny because it is in personam, but it then suggests most in rem forfeitures (and perhaps most civil forfeitures) may not be fines at all. Ante, at 8, 18, and n. 16; but see ante, at 9, n. 6. The suggestion, one might note, is inconsistent or at least in tension with Austin v. United States, 509 U. S. 602 (1993). In any event, these remarks may encourage a legislative shift from in personam to in rem forfeitures, avoiding mens rea as a predicate and giving owners fewer procedural protections. By invoking the Excessive Fines Clause with excessive zeal, the majority may in the long run encourage Congress to circumvent it.


[121] IV.


[122] The majority's holding may not only jeopardize a vast range of fines but also leave countless others unchecked by the Constitution. Non-remedial fines may be subject to deference in theory but overbearing scrutiny in fact. So-called remedial penalties, most in rem forfeitures, and perhaps civil fines may not be subject to scrutiny at all. I would not create these exemptions from the Excessive Fines Clause. I would also accord genuine deference to Congress' judgments about the gravity of the offenses it creates. I would further follow the long tradition of fines calibrated to the value of the goods smuggled. In these circumstances, the Constitution does not forbid forfeiture of all of the $357,144 transported by respondent. I Dissent.



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Opinion Footnotes

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[123] *fn1 The statutory reporting requirement provides: "[A] person or an agent or bailee of the person shall file a report . . . when the person, agent, or bailee knowingly-- "(1) transports, is about to transport, or has transported, monetary instruments of more than $10,000 at one time-- "(A) from a place in the United States to or through a place outside the United States . . . ." 31 U. S. C. Section 5316(a).


[124] *fn2 Section 5322(a) provides: "A person willfully violating this subchapter . . . shall be fined not more than $250,000, or imprisoned for not more than five years, or both." Section 5322(a).


[125] *fn3 Although the currency reporting statute provides that "a person or an agent or bailee of the person shall file a report," 31 U. S. C. Section 5316(a), the statute ordering the criminal forfeiture of unreported currency provides that "[t]he court, in imposing sentence on a person convicted of" failure to file the required report, "shall order that the person forfeit to the United States" any property "involved in" or "traceable to" the offense, 18 U. S. C. Section 982(a)(1). The combined effect of these two statutes is that an owner of unreported currency is not subject to criminal forfeiture if his agent or bailee is the one who fails to file the required report, because such an owner could not be convicted of the reporting offense. The United States endorsed this interpretation at oral argument in this case. See Tr. of Oral Arg. 24-25. For this reason, the Dissent's speculation about the effect of today's holding on "kingpins" and "cash couriers" is misplaced. See post, at 9, 11. Section 982(a)(1)'s criminal, in personam forfeiture reaches only currency owned by someone who himself commits a reporting crime. It is unlikely that the Government, in the course of criminally indicting and prosecuting a cash courier, would not bother to investigate the source and true ownership of unreported funds.


[126] *fn4 We do not suggest that merely because the forfeiture of respondent's currency in this case would not serve a remedial purpose, other forfeitures may be classified as non-punitive (and thus not "fines") if they serve some remedial purpose as well as being punishment for an offense. Even if the Government were correct in claiming that the forfeiture of respondent's currency is remedial in some way, the forfeiture would still be punitive in part. (The Government concedes as much.) This is sufficient to bring the forfeiture within the purview of the Excessive Fines Clause. See Austin v. United States, 509 U. S. 602, 621-622 (1993).


[127] *fn5 The "guilty property" theory behind in rem forfeiture can be traced to the Bible, which describes property being sacrificed to God as a means of atoning for an offense. See Exodus 21:28. In medieval Europe and at common law, this concept evolved into the law of deodand, in which offending property was condemned and confiscated by the church or the Crown in remediation for the harm it had caused. See 1 M. Hale, Pleas of the Crown 420-424 (1st Am. ed. 1847); 1 W. Blackstone, Commentaries on the Law of England 290-292 (1765); O. Holmes, The Common Law 10-13, 23-27 (M. Howe ed. 1963).


[128] *fn6 It does not follow, of course, that all modern civil in rem forfeitures are non-punitive and thus beyond the coverage of the Excessive Fines Clause. Because some recent federal forfeiture laws have blurred the traditional distinction between civil in rem and criminal in personam forfeiture, we have held that a modern statutory forfeiture is a "fine" for Eighth Amendment purposes if it constitutes punishment even in part, regardless of whether the proceeding is styled in rem or in personam. See Austin v. United States, supra, at 621-622 (although labeled in rem, civil forfeiture of real property used "to facilitate" the commission of drug crimes was punitive in part and thus subject to review under the Excessive Fines Clause).


[129] *fn7 The First Congress explicitly rejected in personam forfeitures as punishments for federal crimes, see Act of Apr. 30, 1790, ch. 9, Section 24, 1 Stat. 117 ("[N]o conviction or judgment . . . shall work corruption of blood, or any forfeiture of estate"), and Congress reenacted this ban several times over the course of two centuries. See Rev. Stat. Section 5326 (1875); Act of Mar. 4, 1909, ch. 321, Section 341, 35 Stat. 1159; Act of June 25, 1948, ch. 645, Section 3563, 62 Stat. 837, codified at 18 U. S. C. Section 3563 (1982 ed.); repealed effective Nov. 1, 1987, Pub. L. 98-473, 98 Stat. 1987. It was only in 1970 that Congress resurrected the English common law of punitive forfeiture to combat organized crime and major drug trafficking. See Organized Crime Control Act of 1970, 18 U. S. C. Section 1963, and Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U. S. C. Section 848(a). In providing for this mode of punishment, which had long been unused in this country, the Senate Judiciary Committee acknowledged that "criminal forfeiture ... represents an innovative attempt to call on our common law heritage to meet an essentially modern problem." S. Rep. No. 91-617, p. 79 (1969). Indeed, it was not until 1992 that Congress provided for the criminal forfeiture of currency at issue here. See 18 U. S. C. Section 982(a).


[130] *fn8 Although the term "instrumentality" is of recent vintage, see Austin v. United States, 509 U. S., at 627-628 (Scalia, J., Concurring in part and Concurring in judgment), it fairly characterizes property that historically was subject to forfeiture because it was the actual means by which an offense was committed. See infra, at 11; see, e.g., J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505, 508-510 (1921). "Instrumentality" forfeitures have historically been limited to the property actually used to commit an offense and no more. See United States v. Austin, supra, at 627-628 (Scalia, J., Concurring in part and Concurring in judgment). A forfeiture that reaches beyond this strict historical limitation is ipso facto punitive and therefore subject to review under the Excessive Fines Clause.


[131] *fn9 The currency in question is not an instrumentality in any event. The Court of Appeals reasoned that the existence of the currency as a "precondition" to the reporting requirement did not make it an "instrumentality" of the offense. See 84 F. 3d, at 337. We agree; the currency is merely the subject of the crime of failure to report. Cash in a suitcase does not facilitate the commission of that crime as, for example, an automobile facilitates the transportation of goods concealed to avoid taxes. See, e.g., J. W. Goldsmith, Jr.-Grant Co. v. United States, supra, at 508. In the latter instance, the property is the actual means by which the criminal act is committed. See Black's Law Dictionary 801 (6th ed. 1990) ("Instrumentality" is "[s]omething by which an end is achieved; a means, medium, agency").


[132] *fn10 At oral argument, respondent urged that a district court's determination of excessiveness should be reviewed by an appellate court for abuse of discretion. See Tr. of Oral Arg. 32. We cannot accept this submission. The factual findings made by the district courts in conducting the excessiveness inquiry, of course, must be accepted unless clearly erroneous. See Anderson v. Bessemer City, 470 U. S. 564, 574-75 (1985). But the question of whether a fine is constitutionally excessive calls for the application of a constitutional standard to the facts of a particular case, and in this context de novo review of that question is appropriate. See Ornelas v. United States, 517 U. S. 690, 697 (1996).


[133] *fn11 The only question before this Court is whether the full forfeiture of respondent's $357,144 as directed by Section 982(a)(1) is constitutional under the Excessive Fines Clause. We hold that it is not. The Government petitioned for certiorari seeking full forfeiture, and we reject that request. Our holding that full forfeiture would be excessive reflects no judgment that "a forfeiture of even $15,001 would have suffered from a gross disproportion," nor does it "affir[m] the reduced $15,000 forfeiture on de novo review." Post, at 6. Those issues are simply not before us. Nor, indeed, do we address in any respect the validity of the forfeiture ordered by the District Court, including whether a court may disregard the terms of a statute that commands full forfeiture: As noted, supra, at 4, respondent did not cross-appeal the $15,000 forfeiture ordered by the District Court. The Court of Appeals thus declined to address the $15,000 forfeiture, and that question is not properly presented here either.


[134] *fn12 Contrary to the Dissent's contention, the nature of the non-reporting offense in this case was not altered by respondent's "lies" or by the "suspicious circumstances" surrounding his transportation of his currency." See post, at 9-10. A single willful failure to declare the currency constitutes the crime, the gravity of which is not exacerbated or mitigated by "fable[s]" that respondent told one month, or six months, later. See post, at 10. The Government indicted respondent under 18 U. S. C. Section 1001 for "lying," but that separate count did not form the basis of the non-reporting offense for which Section 982(a)(1) orders forfeiture. Further, the District Court's finding that respondent's lies stemmed from a fear of the Government because of "cultural differences," supra, at 3, does not mitigate the gravity of his offense. We reject the Dissent's contention that this finding was a "patronizing excuse" that "demeans millions of law-abiding American immigrants by suggesting they cannot be expected to be as truthful as every other citizen." Post, at 10. We are confident that the District Court concurred in the Dissent's incontrovertible proposition that "[e]ach American, regardless of culture or ethnicity, is equal before the law." Ibid. The District Court did nothing whatsoever to imply that "cultural differences" excuse lying, but rather made this finding in the context of establishing that respondent's willful failure to report the currency was unrelated to any other crime--a finding highly relevant to the determination of the gravity of respondent's offense. The Dissent's charge of ethnic paternalism on the part of the District Court finds no support in the record, nor is there any indication that the District Court's factual finding that respondent "distrust[ed] . . . the Government," see supra, at 3, was clearly erroneous.


[135] *fn13 Nor, contrary to the Dissent's repeated assertion, see post, at 1, 3, 4, 5, 6, 7, 8, 11, 12, and 13, is respondent a "smuggler." Respondent owed no customs duties to the Government, and it was perfectly legal for him to possess the $357,144 in cash and to remove it from the United States. His crime was simply failing to report the wholly legal act of transporting his currency.


[136] *fn14 In considering an offense's gravity, the other penalties that the Legislature has authorized are certainly relevant evidence. Here, as the Government and the Dissent stress, Congress authorized a maximum fine of $250,000 plus five years' imprisonment for willfully violating the statutory reporting requirement, and this suggests that it did not view the reporting offense as a trivial one. That the maximum fine and Guideline sentence to which respondent was subject were but a fraction of the penalties authorized, however, undercuts any argument based solely on the statute, because they show that respondent's culpability relative to other potential violators of the reporting provision--tax evaders, drug kingpins, or money launderers, for example--is small indeed. This disproportion is telling notwithstanding the fact that a separate Guideline provision permits forfeiture if mandated by statute, see post, at 8. That Guideline, moreover, cannot override the constitutional requirement of proportionality review.


[137] *fn15 Respondent does not argue that his wealth or income are relevant to the proportionality determination or that full forfeiture would deprive him of his livelihood, see supra, at 13, and the District Court made no factual findings in this respect.


[138] *fn16 The non-punitive nature of these early forfeitures was not lost on the Department of Justice, in commenting on the punitive forfeiture provisions of the Organized Crime Control Act of 1970: " `The concept of forfeiture as a criminal penalty which is embodied in this provision differs from other presently existing forfeiture provisions under Federal statutes where the proceeding is in rem against the property and the thing which is declared unlawful under the statute, or which is used for an unlawful purpose, or in connection with the prohibited property or transaction, is considered the offender, and the forfeiture is no part of the punishment for the criminal offense. Examples of such forfeiture provisions are those contained in the customs, narcotics, and revenue laws.' " S. Rep. No. 91-617, p. 79 (1969) (emphasis added).


[139] *fn17 In each of the statutes from the early Congresses cited by the Dissent, the activities giving rise to the monetary forfeitures, if undetected, were likely to cause the Government losses in customs revenue. The forfeiture imposed by the Acts of Aug. 4, 1790 and Mar. 2, 1799 was not simply for "transferring goods from one ship to another," post, at 3, but rather for doing so "before such ship . . . shall come to the proper place for the discharge of her cargo . . . and be there duly authorized by the proper officer or officers of the customs to unlade" the goods, see 1 Stat. 157, 158, 648, whereupon duties would be assessed. Similarly, the forfeiture imposed by the Act of Mar. 3, 1823 was for failing to deliver the ship's manifest of cargo--which was to list "merchandise subject to duty"--to the collector of customs. See Act of Mar. 2, 1821, Section 1, 3 Stat. 616; Act of Mar. 3, 1823, Section 1, id., at 781. And the "invoices" that if "false" gave rise to the forfeiture imposed by the Act of Mar. 3, 1863 were to include the value or quantity of any dutiable goods. Section 1, 12 Stat. 737-738.


[140] *fn18 The non-punitive nature of the monetary forfeitures was also reflected in their procedure: like traditional in rem forfeitures, they were brought as civil actions, and as such are distinguishable from the punitive criminal fine at issue here. Instead of instituting an information of libel in rem against the goods, see, e.g., Locke v. United States, 7 Cranch 339 (1813), the Government filed "a civil action of debt" against the person from whom it sought payment. See, e.g., Stockwell v. United States, 13 Wall. 531, 541-542 (1871). In both England and the United States, an action of debt was used to recover import duties owed the Government, being "the general remedy for the recovery of all sums certain, whether the legal liability arise from contract, or be created by a statute. And the remedy as well lies for the government itself, as for a citizen." United States v. Lyman, 26 F. Cas. 1024, 1030 (No. 15,647) (CC Mass. 1818) (Story, C. J.). Thus suits for the payment of monetary forfeitures were viewed no differently than suits for the customs duties themselves.


[141] *fn19 One Lot Emerald Cut Stones differs from this case in the most fundamental respect. We concluded that the forfeiture provision in Emerald Cut Stones was entirely remedial and thus non-punitive, primarily because it "provide[d] a reasonable form of liquidated damages" to the Government. 409 U. S., at 237. The additional fact that such a remedial forfeiture also "serves to reimburse the Government for investigation and enforcement expenses," ibid.; see post, at 4, is essentially meaningless, because even a clearly punitive criminal fine or forfeiture could be said in some measure to reimburse for criminal enforcement and investigation. Contrary to the Dissent's assertion, this certainly does not mean that the forfeiture in this case--which, as the Dissent acknowledges, see post, at 1 (respondent's forfeiture is a "fine"), 10 (Section 982(a)(1) imposes a "punishment"), is clearly punitive--"would have to [be treated] as non-punitive." Post, at 3.

Board of Probation and Parole v. Scott, 118 S.Ct. 2014, 141 L.Ed.2d 344 (U.S. 06/22/1998)

[1] United States Supreme Court


[2] No. 97-581


[3] 118 S.Ct. 2014, 141 L.Ed.2d 344, 1998, 98 Cal. Daily Op. Serv. 4752


[4] June 22, 1998


[5] PENNSYLVANIA BOARD OF PROBATION AND PAROLE, PETITIONER V. KEITH M. SCOTT


[6] SYLLABUS BY THE COURT


[7] Syllabus


[8] OCTOBER TERM, 1997


[9] PENNSYLVANIA BD. OF PROBATION


[10] NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


[11] SUPREME COURT OF THE UNITED STATES


[12] PENNSYLVANIA BOARD OF PROBATION AND PAROLE v. SCOTT


[13] Certiorari To The Supreme Court Of Pennsylvania


[14] No. 97-581.


[15] Argued March 30, 1998


[16] Decided June 22, 1998


[17] A condition of respondent's Pennsylvania parole was that he refrain from owning or possessing weapons. Based on evidence that he had violated this and other such conditions, parole officers entered his home and found firearms, a bow, and arrows. At his parole violation hearing, respondent objected to the introduction of this evidence on the ground that the search was unreasonable under the Fourth Amendment. The hearing examiner rejected the challenge and admitted the evidence. As a result, petitioner parole board found sufficient evidence to support the charges and recommitted respondent. The Commonwealth Court of Pennsylvania reversed, and the Pennsylvania Supreme Court affirmed the reversal, holding, inter alia, that although the federal exclusionary rule, which prohibits the introduction at criminal trial of evidence obtained in violation of a defendant's Fourth Amendment rights, does not generally apply in parole revocation hearings, it applied in this case because the officers who conducted the search were aware of respondent's parole status. The court reasoned that, otherwise, illegal searches would be undeterred when the officers know that their subjects are parolees and that illegally obtained evidence can be introduced at parole hearings.


[18] Held: The federal exclusionary rule does not bar the introduction at parole revocation hearings of evidence seized in violation of parolees' Fourth Amendment rights. The State's use of such evidence does not itself violate the Constitution. See, e.g., United States v. Leon, 468 U. S. 897, 906. Rather, a violation is "fully accomplished" by the illegal search or seizure, and no exclusion of evidence can cure the invasion of rights the defendant has already suffered. E.g., id., at 906. The exclusionary rule is instead a judicially created means of deterring illegal searches and seizures. United States v. Calandra, 414 U. S. 338, 348. As such, it does not proscribe the introduction of illegally seized evidence in all proceedings or against all persons, Stone v. Powell, 428 U. S. 465, 486, but applies only in contexts where its remedial objectives are thought most efficaciously served, e.g., Calandra, supra, at 348. Moreover, because the rule is prudential rather than constitutionally mandated, it applies only where its deterrence benefits outweigh the substantial social costs inherent in precluding consideration of reliable, probative evidence. Leon, 468 U. S., at 907. Recognizing these costs, the Court has repeatedly declined to extend the rule to proceedings other than criminal trials. E.g., id., at 909. It again declines to do so here. The social costs of allowing convicted criminals who violate their parole to remain at large are particularly high, see Morrissey v. Brewer, 408 U. S. 471, 477, 483, and are compounded by the fact that parolees (particularly those who have already committed parole violations) are more likely to commit future crimes than are average citizens, see Griffin v. Wisconsin, 483 U. S. 868, 880. Application of the exclusionary rule, moreover, would be incompatible with the traditionally flexible, non-adversarial, administrative procedures of parole revocation, see Morrissey, supra, at 480, 489, in that it would require extensive litigation to determine whether particular evidence must be excluded, cf., e.g., Calandra, supra, at 349. The rule would provide only minimal deterrence benefits in this context, because its application in criminal trials already provides significant deterrence of unconstitutional searches. Cf. United States v. Janis, 428 U. S. 433, 448, 454. The Pennsylvania Supreme Court's special rule for situations in which the searching officer knows his subject is a parolee is rejected because this Court has never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence, e.g., Calandra, supra, at 350; because such a piecemeal approach would add an additional layer of collateral litigation regarding the officer's knowledge of the parolee's status; and because, in any event, any additional deterrence would be minimal, whether the person conducting the search was a police officer or a parole officer. Pp. 4-11.


[19] 548 Pa. 418, 698 A. 2d 32, reversed and remanded.


[20] Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed a Dissenting opinion. Souter, J., filed a Dissenting opinion, in which Ginsburg and Breyer, JJ., joined.


[21] The opinion of the court was delivered by: Justice Thomas


[22] Opinion of the Court


[23] PENNSYLVANIA BD. OF PROBATION AND PAROLE v. SCOTT


[24] ____ U. S. ____ (1998)


[25] NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.


[26] On Writ Of Certiorari To The Supreme Court Of Pennsylvania, Middle District


[27] This case presents the question whether the exclusionary rule, which generally prohibits the introduction at criminal trial of evidence obtained in violation of a defendant's Fourth Amendment rights, applies in parole revocation hearings. We hold that it does not.


[28] I.


[29] Respondent Keith M. Scott pleaded nolo contendere to a charge of third-degree murder and was sentenced to a prison term of 10 to 20 years, beginning on March 31, 1983. On September 1, 1993, just months after completing the minimum sentence, respondent was released on parole. One of the conditions of respondent's parole was that he would refrain from "owning or possessing any firearms or other weapons." App. 5a. The parole agreement, which respondent signed, further provided:


[30] "I expressly consent to the search of my person, property and residence, without a warrant by agents of the Pennsylvania Board of Probation and Parole. Any items, in [sic] the possession of which constitutes a violation of parole/reparole shall be subject to seizure, and may be used as evidence in the parole revocation process." App. 7a.


[31] About five months later, after obtaining an arrest warrant based on evidence that respondent had violated several conditions of his parole by possessing firearms, consuming alcohol, and assaulting a co-worker, three parole officers arrested respondent at a local diner. Before being transferred to a correctional facility, respondent gave the officers the keys to his residence. The officers entered the home, which was owned by his mother, but did not perform a search for parole violations until respondent's mother arrived. The officers neither requested nor obtained consent to perform the search, but respondent's mother did direct them to his bedroom. After finding no relevant evidence there, the officers searched an adjacent sitting room in which they found five firearms, a compound bow, and three arrows.


[32] At his parole violation hearing, respondent objected to the introduction of the evidence obtained during the search of his home on the ground that the search was unreasonable under the Fourth Amendment. The hearing examiner, however, rejected the challenge and admitted the evidence. As a result, the Pennsylvania Board of Probation and Parole found sufficient evidence in the record to support the weapons and alcohol charges and recommitted respondent to serve 36 months' backtime.


[33] The Commonwealth Court of Pennsylvania reversed and remanded, holding, inter alia, that the hearing examiner had erred in admitting the evidence obtained during the search of respondent's residence.*fn1 The court ruled that the search violated respondent's Fourth Amendment rights because it was conducted without the owner's consent and was not authorized by any state statutory or regulatory framework ensuring the reasonableness of searches by parole officers. Petn. App., at 31a. The court further held that the exclusionary rule should apply because, in the circumstances of respondent's case, the deterrence benefits of the rule outweighed its costs. Id., at 37a.*fn2


[34] The Pennsylvania Supreme Court affirmed. 698 A. 2d 32, 548 Pa. 418 (1997). The court stated that respondent's Fourth Amendment right against unreasonable searches and seizures was "unaffected" by his signing of the parole agreement giving parole officers permission to conduct warrantless searches. Id., at 36, 548 Pa., at 427. It then held that the search in question was unreasonable because it was supported only by "mere speculation" rather than a "reasonable suspicion" of a parole violation. Ibid. Carving out an exception to its per se bar against application of the exclusionary rule in parole revocation hearings, see Commonwealth v. Kates, 452 Pa. 102, 120, 305 A. 2d 701, 710 (Pa. 1973), the court further ruled that the federal exclusionary rule applied to this case because the officers who conducted the search were aware of respondent's parole status, 548 Pa. at 428-432, 698 A. 2d, at 37-38. The court reasoned that, in the absence of the rule, illegal searches would be undeterred when officers know that the subjects of their searches are parolees and that illegally obtained evidence can be introduced at parole hearings. Ibid.


[35] We granted certiorari to determine whether the Fourth Amendment exclusionary rule applies to parole revocation proceedings. 523 U. S. ___ (1998).*fn3


[36] II.


[37] We have emphasized repeatedly that the State's use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution. See, e.g., United States v. Leon, 468 U. S. 897, 906 (1984); Stone v. Powell, 428 U. S. 465, 482, 486 (1976). Rather, a Fourth Amendment violation is " `fully accomplished' " by the illegal search or seizure, and no exclusion of evidence from a judicial or administrative proceeding can " `cure the invasion of the defendant's rights which he has already suffered.' " United States v. Leon, supra, at 906 (quoting Stone v. Powell, supra, at 540 (White, J., Dissenting)). The exclusionary rule is instead a judicially created means of deterring illegal searches and seizures. United States v. Calandra, 414 U. S. 338, 348 (1974). As such, the rule does not "proscribe the introduction of illegally seized evidence in all proceedings or against all persons," Stone v. Powell, supra, at 486, but applies only in contexts "where its remedial objectives are thought most efficaciously served," United States v. Calandra, supra, at 348; see also United States v. Janis, 428 U. S. 433, 454 (1976) ("If ... the exclusionary rule does not result in appreciable deterrence, then, clearly, its use in the instant situation is unwarranted"). Moreover, because the rule is prudential rather than constitutionally mandated, we have held it to be applicable only where its deterrence benefits outweigh its "substantial social costs." United States v. Leon, 468 U. S., at 907.


[38] Recognizing these costs, we have repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials. Id., at 909; United States v. Janis, supra, at 447. For example, in United States v. Calandra, we held that the exclusionary rule does not apply to grand jury proceedings; in so doing, we emphasized that such proceedings play a special role in the law enforcement process and that the traditionally flexible, non-adversarial nature of those proceedings would be jeopardized by application of the rule. 414 U. S., at 343-346, 349-350. Likewise, in United States v. Janis, we held that the exclusionary rule did not bar the introduction of unconstitutionally obtained evidence in a civil tax proceeding because the costs of excluding relevant and reliable evidence would outweigh the marginal deterrence benefits, which, we noted, would be minimal because the use of the exclusionary rule in criminal trials already deterred illegal searches. 428 U. S., at 448, 454. Finally, in INS v. Lopez-Mendoza, 468 U. S. 1032 (1984), we refused to extend the exclusionary rule to civil deportation proceedings, citing the high social costs of allowing an immigrant to remain illegally in this country and noting the incompatibility of the rule with the civil, administrative nature of those proceedings. Id., at 1050.


[39] As in Calandra, Janis, and Lopez-Mendoza, we are asked to extend the operation of the exclusionary rule beyond the criminal trial context. We again decline to do so. Application of the exclusionary rule would both hinder the functioning of state parole systems and alter the traditionally flexible, administrative nature of parole revocation proceedings. The rule would provide only minimal deterrence benefits in this context, because application of the rule in the criminal trial context already provides significant deterrence of unconstitutional searches. We therefore hold that the federal exclusionary rule does not bar the introduction at parole revocation hearings of evidence seized in violation of parolees' Fourth Amendment rights.


[40] Because the exclusionary rule precludes consideration of reliable, probative evidence, it imposes significant costs: it undeniably detracts from the truthfinding process and allows many who would otherwise be incarcerated to escape the consequences of their actions. See Stone v. Powell, supra, at 490. Although we have held these costs to be worth bearing in certain circumstances,*fn4 our cases have repeatedly emphasized that the rule's "costly toll" upon truth-seeking and law enforcement objectives presents a high obstacle for those urging application of the rule. United States v. Payner, 447 U. S. 727, 734 (1980).


[41] The costs of excluding reliable, probative evidence are particularly high in the context of parole revocation proceedings. Parole is a "variation on imprisonment of convicted criminals," Morrissey v. Brewer, 408 U. S. 471, 477 (1972), in which the State accords a limited degree of freedom in return for the parolee's assurance that he will comply with the often strict terms and conditions of his release. In most cases, the State is willing to extend parole only because it is able to condition it upon compliance with certain requirements. The State thus has an "overwhelming interest" in ensuring that a parolee complies with those requirements and is returned to prison if he fails to do so. Id., at 483. The exclusion of evidence establishing a parole violation, however, hampers the State's ability to ensure compliance with these conditions by permitting the parolee to avoid the consequences of his noncompliance. The costs of allowing a parolee to avoid the consequences of his violation are compounded by the fact that parolees (particularly those who have already committed parole violations) are more likely to commit future criminal offenses than are average citizens. See Griffin v. Wisconsin, 483 U. S. 868, 880 (1987). Indeed, this is the very premise behind the system of close parole supervsion. Ibid.


[42] The exclusionary rule, moreover, is incompatible with the traditionally flexible, administrative procedures of parole revocation. Because parole revocation deprives the parolee not "of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions," Morrissey v. Brewer, supra, at 480, States have wide latitude under the Constitution to structure parole revocation proceedings.*fn5 Most States, including Pennsylvania, see Scott v. Pennsylvania Bd. of Probation and Parole, 548 Pa., at 427-428, 698 A. 2d, at 36; Rivenbark v. Pennsylvania Bd. of Probation and Parole, 509 Pa. 248, 501 A. 2d 1110 (Pa. 1985), have adopted informal, administrative parole revocation procedures in order to accommodate the large number of parole proceedings. These proceedings generally are not conducted by Judges, but instead by parole boards, "members of which need not be judicial officers or lawyers." Morrisey v. Brewer, 408 U. S., at 489. And traditional rules of evidence generally do not apply. Ibid. ("[T]he process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial."). Nor are these proceedings entirely adversarial, as they are designed to be " `predictive and discretionary' as well as factfinding." Gagnon v. Scarpelli, 411 U. S. 778, 787 (1973) (quoting Morrissey v. Brewer, supra, at 480).


[43] Application of the exclusionary rule would significantly alter this process. The exclusionary rule frequently requires extensive litigation to determine whether particular evidence must be excluded. Cf. United States v. Calandra, 414 U. S., at 349 (noting that application of the exclusionary rule "would delay and disrupt grand jury proceedings" because "[s]uppression hearings would halt the orderly process of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury's primary objective"); INS v. Lopez-Mendoza, 468 U. S., at 1048 (noting that "[t]he prospect of even occasional invocation of the exclusionary rule might significantly change and complicate the character of " the deportation system). Such litigation is inconsistent with the non-adversarial, administrative processes established by the States. Although States could adapt their parole revocation proceedings to accommodate such litigation, such a change would transform those proceedings from a "predictive and discretionary" effort to promote the best interests of both parolees and society into trial-like proceedings "less attuned" to the interests of the parolee. Gagnon v. Scarpelli, supra, at 787-788 (quoting Morrissey v. Brewer, supra, at 480). We are simply unwilling so to intrude into the States' correctional schemes. See Morrisey v. Brewer, supra, at 483 (recognizing that States have an "overwhelming interest" in maintaining informal, administrative parole revocation procedures). Such a transformation ultimately might disadvantage parolees because in an adversarial proceeding, "the hearing body may be less tolerant of marginal deviant behavior and feel more pressure to reincarcerate than to continue non-punitive rehabilitation." Gagnon v. Scarpelli, supra, at 788. And the financial costs of such a system could reduce the State's incentive to extend parole in the first place, as one of the purposes of parole is to reduce the costs of criminal punishment while maintaining a degree of supervision over the parolee.


[44] The deterrence benefits of the exclusionary rule would not outweigh these costs. As the Supreme Court of Pennsylvania recognized, application of the exclusionary rule to parole revocation proceedings would have little deterrent effect upon an officer who is unaware that the subject of his search is a parolee. 548 Pa., at 431, 698 A. 2d, at 38. In that situation, the officer will likely be searching for evidence of criminal conduct with an eye toward the introduction of the evidence at a criminal trial. The likelihood that illegally obtained evidence will be excluded from trial provides deterrence against Fourth Amendment violations, and the remote possibility that the subject is a parolee and that the evidence may be admitted at a parole revocation proceeding surely has little, if any, effect on the officer's incentives. Cf. United States v. Janis, 428 U. S., at 448.


[45] The Pennsylvania Supreme Court thus fashioned a special rule for those situations in which the officer performing the search knows that the subject of his search is a parolee. We decline to adopt such an approach. We have never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence. United States v. Calandra, supra, at 350; Alderman v. United States, 394 U. S. 165, 174 (1969). Furthermore, such a piecemeal approach to the exclusionary rule would add an additional layer of collateral litigation regarding the officer's knowledge of the parolee's status.


[46] In any event, any additional deterrence from the Pennsylvania Supreme Court's rule would be minimal. Where the person conducting the search is a police officer, the officer's focus is not upon ensuring compliance with parole conditions or obtaining evidence for introduction at administrative proceedings, but upon obtaining convictions of those who commit crimes. The non-criminal parole proceeding "falls outside the offending officer's zone of primary interest." Janis, supra, at 458. Thus, even when the officer knows that the subject of his search is a parolee, the officer will be deterred from violating Fourth Amendment rights by the application of the exclusionary rule to criminal trials.


[47] Even when the officer performing the search is a parole officer, the deterrence benefits of the exclusionary rule remain limited. Parole agents, in contrast to police officers, are not "engaged in the often competitive enterprise of ferreting out crime," United States v. Leon, 468 U. S., at 914; instead, their primary concern is whether their parolees should remain free on parole. Thus, their relationship with parolees is more supervisory than adversarial. Griffin v. Wisconsin, 483 U. S. 868, 879 (1987). It is thus "unfair to assume that the parole officer bears hostility against the parolee that destroys his neutrality; realistically the failure of the parolee is in a sense a failure for his supervising officer." Morrissey v. Brewer, 408 U. S., at 485-486. Although this relationship does not prevent parole officers from ever violating the Fourth Amendment rights of their parolees, it does mean that the harsh deterrent of exclusion is unwarranted, given such other deterrents as departmental training and discipline and the threat of damages actions. Moreover, although in some instances parole officers may act like police officers and seek to uncover evidence of illegal activity, they (like police officers) are undoubtedly aware that any unconstitutionally seized evidence that could lead to an indictment could be suppressed in a criminal trial. In this case, assuming that the search violated respondent's Fourth Amendment rights, the evidence could have been inadmissible at trial if respondent had been criminally prosecuted.


[48] We have long been averse to imposing federal requirements upon the parole systems of the States. A federal requirement that parole boards apply the exclusionary rule, which is itself a "grudgingly taken medicant," United States v. Janis, supra, at 454, n. 29 (1976), would severely disrupt the traditionally informal, administrative process of parole revocation. The marginal deterrence of unreasonable searches and seizures is insufficient to justify such an intrusion. We therefore hold that parole boards are not required by federal law to exclude evidence obtained in violation of the Fourth Amendment. Accordingly, the judgment below is reversed, and the case is remanded to the Pennsylvania Supreme Court.


[49] It is so ordered.


[50] Stevens, J., Dissenting


[51] PENNSYLVANIA BD. OF PROBATION AND PAROLE v. SCOTT


[52] ____ U. S. ____ (1998)


[53] SUPREME COURT OF THE UNITED STATES


[54] No. 97-581


[55] PENNSYLVANIA BOARD OF PROBATION AND PAROLE, PETITIONER v. KEITH M. SCOTT


[56] on writ of certiorari to the supreme court of pennsylvania, middle district


[57] [June 22, 1998]


[58] Justice Stevens, Dissenting.


[59] Justice Souter has explained why the deterrent function of the exclusionary rule is implicated as much by a parole revocation proceeding as by a conventional criminal trial. I agree with that explanation. I add this comment merely to endorse Justice Stewart's Conclusion that the "rule is constitutionally required, not as a `right' explicitly incorporated in the fourth amendment's prohibitions, but as a remedy necessary to ensure that those prohibitions are observed in fact." Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1389 (1983). See also Arizona v. Evans, 514 U. S. 1, 18-19, and n. 1 (1995) (Stevens, J., Dissenting); Segura v. United States, 468 U. S. 796, 828, and n. 22 (1984) (Stevens, J., Dissenting); United States v. Leon, 468 U. S. 897, 978, and n. 37 (1984) (Stevens, J., Dissenting).


[60] Souter, J., Dissenting


[61] PENNSYLVANIA BD. OF PROBATION AND PAROLE v. SCOTT


[62] ____ U. S. ____ (1998)


[63] SUPREME COURT OF THE UNITED STATES


[64] No. 97-581


[65] PENNSYLVANIA BOARD OF PROBATION AND PAROLE, PETITIONER v. KEITH M. SCOTT


[66] on writ of certiorari to the supreme court of pennsylvania, middle district


[67] [June 22, 1998]


[68] Justice Souter, with whom Justice Ginsburg and Justice Breyer join, Dissenting.


[69] The Court's holding that the exclusionary rule of Mapp v. Ohio, 367 U. S. 643 (1961), has no application to parole revocation proceedings rests upon mistaken conceptions of the actual function of revocation, of the objectives of those who gather evidence in support of petitions to revoke, and, consequently, of the need to deter violations of the Fourth Amendment that would tend to occur in administering the parole laws. In reality a revocation proceeding often serves the same function as a criminal trial, and the revocation hearing may very well present the only forum in which the State will seek to use evidence of a parole violation, even when that evidence would support an independent criminal charge. The deterrent function of the exclusionary rule is therefore implicated as much by a revocation proceeding as by a conventional trial, and the exclusionary rule should be applied accordingly. From the Court's Conclusion to the contrary, I respectfully Dissent.


[70] This Court has said that the primary purpose of the exclusionary rule "is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures." United States v. Calandra, 414 U. S. 338, 347 (1974). Because the exclusionary rule thus "operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved," United States v. Leon, 468 U. S. 897, 906 (1984) (internal quotation marks omitted), "[w]hether the exclusionary sanction is appropriately imposed in a particular case ... is `an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.' " Ibid. (quoting Illinois v. Gates, 462 U. S. 213, 223 (1983)). The exclusionary rule does not, therefore, mandate the exclusion of illegally acquired evidence from all proceedings or against all persons, United States v. Calandra, supra, at 348, and we have made clear that the rule applies only in "those instances where its remedial objectives are thought most efficaciously served," Arizona v. Evans, 514 U. S. 1, 11 (1995). Only then can the deterrent value of applying the rule to a given class of proceedings be seen to outweigh its price, including "the loss of often probative evidence and all of the secondary costs that flow from the less accurate or more cumbersome adjudication that therefore occurs." INS v. Lopez&nbhyph;Mendoza, 468 U. S. 1032, 1041 (1984); see also United States v. Janis, 428 U. S. 433, 454 (1976); United States v. Calandra, supra, at 349-350.


[71] Because we have found the requisite efficacy when the rule is applied in criminal trials, see Elkins v. United States, 364 U. S. 206 (1960); Mapp v. Ohio, supra; Weeks v. United States, 232 U. S. 383 (1914), the deterrent effect of the evidentiary limitation upon prosecution is a baseline for evaluating the degree (or incremental degree) of deterrence that could be expected from extending the exclusionary rule to other sorts of cases, see INS v. Lopez&nbhyph;Mendoza, supra. Thus, we have thought that any additional deterrent value obtainable from applying the rule in civil tax proceedings, see United States v. Janis, supra, habeas proceedings, see Stone v. Powell, 428 U. S. 465 (1976), and grand jury proceedings, see United States v. Calandra, supra, would be so marginal as to be outweighed by the incremental costs.


[72] In Janis, for example, we performed incremental benefit analysis by focusing on the two classes of law enforcement officers affected. We reasoned that when the offending official was a state police officer, his "zone of primary interest" would be state criminal prosecution, not federal civil proceedings; accordingly, we said, "common sense dictates that the deterrent effect of the exclusion of relevant evidence is highly attenuated when the `punishment' imposed upon the offending criminal enforcement officer is the removal of that evidence from a civil suit by or against a different sovereign." 428 U. S., at 457-458. Stone v. Powell was another variant on the same theme, where we looked to the collateral nature of the habeas proceedings in which the rule might be applied: "The view that the deterrence of Fourth Amendment violations would be furthered rests on the dubious assumption that law enforcement authorities would fear that federal habeas review might reveal flaws in a search or seizure that went undetected at trial and on appeal." 428 U. S., at 493. And in United States v. Calandra we observed that excluding such evidence from grand jury proceedings "would deter only police investigation[s] consciously directed toward the discovery of evidence solely for use in a grand jury investigation," 414 U. S., at 351; an investigation so unambitious would be a rare one, we said, since prosecutors are unlikely to seek indictments in the face of dim prospects of conviction after trial, ibid.


[73] In a formal sense, such is the reasoning of the Court's majority in deciding today that application of the exclusionary rule in parole revocation proceedings would have only an insignificant marginal deterrent value, "because application of the rule in the criminal trial context already provides significant deterrence of unconstitutional searches." Ante, at 6. In substance, however, the Court's Conclusion will not jibe with the examples just cited, for it rests on erroneous views of the roles of regular police and parole officers in relation to revocation proceedings, and of the practical significance of the proceedings themselves.


[74] As to the police, the majority say that regular officers investigating crimes almost always act with the prospect of a criminal prosecution before them. Their fear of evidentiary suppression in the criminal trial will have as much deterrent effect as can be expected, therefore, while any risk of suppression in parole administration is too unlikely to be on their minds to influence their conduct.


[75] The majority's assumption will only sometimes be true, however, and in many, or even most cases, it will quite likely be false. To be sure, if a police officer acts on the spur of the moment to seize evidence or thwart crime, he may have no idea of a perpetrator's parole status. But the contrary will almost certainly be the case when he has first identified the person he has his eye on: the local police know the local felons, criminal history information is instantly available nationally, and police and parole officers routinely cooperate. See, e.g., United States ex rel. Santos v. New York State Bd. of Parole, 441 F. 2d 1216, 1217 (CA2 1971) (police officer, who had obtained "reasonable grounds" to believe that the parolee was dealing in stolen goods, informed the parole officer; the parolee officer and police officer together searched parolee's apartment), cert. denied, 404 U. S. 1025 (1972); Grimsley v. Dodson, 696 F. 2d 303, 304 (CA4 1982) (upon receipt of information about probationer, probation officer contacted a sheriff, sheriff obtained search warrant, and together they searched probationer's house), cert. denied, 462 U. S. 1134 (1983); State ex rel. Wright v. Ohio Adult Parole Auth., 75 Ohio St. 3d 82, 83-84, 661 N. E. 2d 728, 730 (1996) (police officers suspected parolee had committed burglary and asked his parole officer to search his residence; parolee was then reincarcerated for violating his parole conditions); People v. Stewart, 242 Ill. App. 3d. 599, 611-612, 610 N. E. 2d 197, 206 (1993) (police conducting illegal traffic stop and subsequent search and seizure knew or had reason to know that defendant was on probation); People v. Montenegro, 173 Cal. App. 3d 983, 986, 219 Cal. Rptr. 331, 332 (4th Dist. 1985) (police contacted parole agent so that they could conduct search of parolee's apartment); see also Pennsylvania Board of Probation and Parole, Police Procedures in the Handling of Parolees 16 (1974) (parole agent has a responsibility to inform police in the area where parolee will be living and to provide "full cooperation to the police").


[76] As these cases show, the police very likely do know a parolee's status when they go after him, and (contrary to the majority's assumption) this fact is significant for three reasons. First, and most obviously, the police have reason for concern with the outcome of a parole revocation proceeding, which is just as foreseeable as the criminal trial and at least as likely to be held. Police officers, especially those employed by the same sovereign that runs the parole system, therefore have every incentive not to jeopardize a recommitment by rendering evidence inadmissible. See INS v. Lopez&nbhyph;Mendoza, 468 U. S., at 1043 (deterrence especially effective when law enforcement and prosecution are under one government). Second, as I will explain below, the actual likelihood of trial is often far less than the probability of a petition for parole revocation, with the consequence that the revocation hearing will be the only forum in which the evidence will ever be offered. Often, therefore, there will be nothing incremental about the significance of evidence offered in the administrative tribunal, and nothing "marginal" about the deterrence provided by an exclusionary rule operating there, ante, at 10. Finally, the cooperation between parole and police officers, as in the instances shown in the cases cited above, casts serious doubt upon the aptness of treating police officers differently from parole officers, doubt that is confirmed by the following attention to the Court's characterization of the position of the parole officer.


[77] The Court recalls our description of the police as "engaged in the often competitive enterprise of ferreting out crime," which raises the temptation to cut constitutional corners (which in turn requires the countervailing influence of the exclusionary rule). United States v. Leon, 468 U. S., at 914. As against this picture of the police, the Court paints the parole officer as a figure more nearly immune to such competitive zeal. As the Court describes him, the parole officer is interested less in catching a parole violator than in making sure that the parolee continues to go straight, since " `realistically the failure of the parolee is in a sense a failure for his supervising officer.' " Ante, at 10-11 (quoting Morrissey v. Brewer, 408 U. S. 471, 485-486 (1972)). This view of the parole officer suffers, however, from its selectiveness. Parole officers wear several hats; while they are indeed the parolees' counselors and social workers, they also "often serve as both prosecutors and law enforcement officials in their relationship with probationers and parolees." N. Cohen & J. Gobert, Law of Probation and Parole Section 11.04, p. 533 (1983); see also Minnesota v. Murphy, 465 U. S. 420, 432 (1984) (probation officer "is a peace officer, and as such is allied, to a greater or lesser extent, with his fellow peace officers") (internal quotation marks omitted)); T. Wile, Pennsylvania Law of Probation and Parole Section 5.12, p. 88 (1993) (parole officers "act in various capacities, supervisor, social worker, advocate, police officer, investigator and advisor, to the offenders under their supervision"). Indeed, a parole officer's obligation to petition for revocation when a parolee goes bad, see Cohen & Gobert, supra, Section 11.04, at 533, is presumably the basis for the legal rule in Pennsylvania that "state parole agents are considered police officers with respect to the offenders under their jurisdiction," Wile, supra, Section 5.12, at 89.


[78] Once, in fact, the officer has turned from counselor to adversary, there is every reason to expect at least as much competitive zeal from him as from a regular police officer. See Gagnon v. Scarpelli, 411 U. S. 778, 785 (1973) ("[A]n exclusive focus on the benevolent attitudes of those who administer the probation/parole system when it is working successfully obscures the modification in attitude which is likely to take place once the officer has decided to recommend revocation"). If he fails to respond to his parolee's further criminality he will be neglecting the public safety, and if he brings a revocation petition without enough evidence to sustain it he can hardly look forward to professional advancement. R. Prus & J. Stratton, Parole Revocation Decisionmaking: Private Typings and Official Designations, 40 Federal Probation 51 (Mar. 1976). And as for competitiveness, one need only ask whether a parole officer would rather leave the credit to state or local police when a parolee has to be brought to book.


[79] The Court, of course, does not mean to deny that parole officers are subject to some temptation to skirt the limits on search and seizure, but it believes that deterrents other than the evidentiary exclusion will suffice. The Court contends that parole agents will be kept within bounds by "departmental training and discipline and the threat of damages actions." Ante, at 11. The same, of course, might be said of the police, and yet as to them such arguments are not heard, perhaps for the same reason that the Court's suggestion sounds hollow as to parole officers. The Court points to no specific departmental training regulation; it cites no instance of discipline imposed on a Pennsylvania parole officer for conducting an illegal search of a parolee's residence; and, least surprisingly of all, the majority mentions not a single lawsuit brought by a parolee against a parole officer seeking damages for an illegal search. In sum, if the police need the deterrence of an exclusionary rule to offset the temptations to forget the Fourth Amendment, parole officers need it quite as much.*fn1


[80] Just as the Court has underestimated the competitive influences tending to induce police and parole officers to stint on Fourth Amendment obligations, so I think it has misunderstood the significance of admitting illegally seized evidence at the revocation hearing. On the one hand, the majority magnifies the cost of an exclusionary rule for parole cases by overemphasizing the differences between a revocation hearing and a trial, and on the other hand it has minimized the benefits by failing to recognize the significant likelihood that the revocation hearing will be the principal, not the secondary, forum, in which evidence of a parolee's criminal conduct will be offered.


[81] The Court is, of course, correct that the revocation hearing has not only an adversarial side in factfinding, but a predictive and discretionary aspect in addressing the proper Disposition when a violation has been found. See ante, at 8 (citing Gagnon v. Scarpelli, supra, at 787 (quoting Morrissey v. Brewer, supra, at 480)). And I agree that open-mindedness at the discretionary, Dispositional stage is promoted by the relative informality of the proceeding even at its factfinding stage. Gagnon v. Scarpelli, supra, at 786. That informality is fostered by limiting issues so that lawyers are not always necessary, 411 U.S, at 787-788, and by appointing lay members to parole boards, Morrissey v. Brewer, 408 U. S., at 489. There is no question, either, that application of an exclusionary rule, if there is no waiver of Fourth Amendment rights, will tend to underscore the adversary character of the factfinding process. This cannot, however, be a dispositive objection to an exclusionary rule. Any revocation hearing is adversary to a degree: counsel must now be provided whenever the complexity of fact issues so warrant, Gagnon v. Scarpelli, supra, at 787, and lay board members are just as capable of passing upon Fourth Amendment issues as the police, who are necessarily charged with responsibility for the legality of warrantless arrests, investigatory stops, and searches.*fn2


[82] As to the benefit of an exclusionary rule in revocation proceedings, the majority does not see that in the investigation of criminal conduct by someone known to be on parole, Fourth Amendment standards will have very little deterrent sanction unless evidence offered for parole revocation is subject to suppression for unconstitutional conduct. It is not merely that parole revocation is the government's consolation prize when, for whatever reason, it cannot obtain a further criminal conviction, though that will sometimes be true. See, e.g., State ex rel. Wright v. Ohio Adult Parole Auth., 75 Ohio St. 3d, at 83-89, 661 N. E. 2d, at 730 (State sought revocation of parole when criminal prosecution was dismissed for insufficient evidence after defendant's motion to suppress was successful); Anderson v. Virginia, 20 Va App. 361, 363-364, 457 S. E. 2d 396, 397 (1995) (same); Chase v. Maryland, 309 Md. 224, 228, 522 A. 2d 1348, 1350 (1987) (same); Gronski v. Wyoming, 700 P. 2d 777, 778 (Wyo. 1985) (same). What is at least equally telling is that parole revocation will frequently be pursued instead of prosecution as the course of choice, a fact recognized a quarter of a century ago when we observed in Morrissey v. Brewer that a parole revocation proceeding "is often preferred to a new prosecution because of the procedural ease of recommitting the individual on the basis of a lesser showing by the State." 408 U. S., at 479; see also Cohen & Gobert, Section 8.06, at 386 ("Favoring the [exclusionary] rule's applicability is the fact that the revocation proceeding, often based on the items discovered in the search, is used in lieu of a criminal trial").


[83] The reasons for this tendency to skip any new prosecution are obvious. If the conduct in question is a crime in its own right, the odds of revocation are very high. Since time on the street before revocation is not subtracted from the balance of the sentence to be served on revocation, Morrissey v. Brewer, supra, at 480, the balance may well be long enough to render recommitment the practical equivalent of a new sentence for a separate crime. And all of this may be accomplished without shouldering the burden of proof beyond a reasonable doubt; hence the obvious popularity of revocation in place of new prosecution.


[84] The upshot is that without a suppression remedy in revocation proceedings, there will often be no influence capable of deterring Fourth Amendment violations when parole revocation is a possible response to new crime. Suppression in the revocation proceeding cannot be looked upon, then, as furnishing merely incremental or marginal deterrence over and above the effect of exclusion in criminal prosecution. Instead, it will commonly provide the only deterrence to unconstitutional conduct when the incarceration of parolees is sought, and the reasons that support the suppression remedy in prosecution therefore support it in parole revocation.


[85] Because I would apply the exclusionary rule to evidence offered in revocation hearings, I would affirm the judgment in this case. Scott gave written consent to warrantless searches; the form he signed provided that he consented "to the search of my person, property and residence, without a warrant by agents of the Pennsylvania Board of Probation and Parole." App. 7a. The Supreme Court of Pennsylvania held the consent insufficient to waive any requirement that searches be supported by reasonable suspicion,*fn3 and in the absence of any such waiver, the State was bound to justify its search by what the Court has described as information indicating the likelihood of facts justifying the search. Griffin v. Wisconsin, 483 U. S. 868 (1987) (dealing with the analogous context of probation revocation). The State makes no claim here to have satisfied this standard. It describes the parole agent's knowledge as rising no further than "the possibility of the presence of weapons in Scott's home," Brief for Petitioner 7, and rests on the argument that not even reasonable suspicion was required.


[86] Because the search violated the Fourth Amendment, and because I conclude that the exclusionary rule ought to apply to parole revocation proceedings, I would affirm the decision of the Supreme Court of Pennsylvania.


[87] *fn1While it is true that the Court found in INS v. Lopez-Mendoza, 468 U. S. 1032 (1984), that the deterrence value of applying the exclusionary rule in deportation proceedings was diminished because the INS "has its own comprehensive scheme for deterring Fourth Amendment violations by its officers," id., at 1044, and "alternative remedies for institutional practices by the INS that might violate Fourth Amendment rights" were available, id., at 1045, these two factors reflected what was at least on the agency's books and, in any event, did not stand alone. The Court in that case found that as a practical matter "it is highly unlikely that any particular arrestee will end up challenging the lawfulness of his arrest in a formal deportation proceeding." Id., at 1044. As the instant case may suggest, there is no reason to expect parolees to be so reticent.


[88] *fn2On the subject of cost, the majority also argues that the cost of applying the exclusionary rule to revocation proceedings would be high because States have an " `overwhelming interest' " in ensuring that its parolees comply with the conditions of their parole, given the fact that parolees are more likely to commit future crimes than average citizens. Ante, at 6-7. I certainly do not contest the fact, but merely point out that it does not differentiate suppression at parole hearings from suppression at trials, where suppression of illegally obtained evidence in the prosecution's case-in-chief certainly takes some toll on the State's interest in convicting criminals in the first place. The majority's argument suggests not that the exclusionary rule is necessarily out of place in parole revocation proceedings, but that States should be permitted to condition parole on an agreement to submit to warrantless, suspicionless searches, on the possibility of which this case has no bearing. See infra, at 11-12.


[89] *fn3 See Scott v. Pennsylvania Bd. of Probation and Parole, 548 Pa. 418, 426, 698 A. 2d 32, 35-36 (1997) (" `the parolee's signing of a parole agreement giving his parole officer permission to conduct a warrantless search does not mean either that the parole officer can conduct a search at any time and for any reason or that the parolee relinquishes his Fourth Amendment right to be free from unreasonable searches. Rather, the parolee's signature acts as acknowledgement that the parole officer has a right to conduct reasonable searches of his residence listed on the parole agreement without a warrant' ") (quoting Commonwealth v. Williams, 547 Pa. 577, 588, 692 A. 2d 1031, 1036 (1997)). Since Pennsylvania has not sought review of this Conclusion, I do not look behind it, or offer any opinion on whether the terms and sufficiency of such a waiver are to be scrutinized under state or federal law.



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Opinion Footnotes

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[90] *fn1 The court also held that the Board of Probation and Parole erred by admitting hearsay evidence regarding alcohol consumption and a separate incident of weapons possession.


[91] *fn2 While this case was pending in the Pennsylvania Supreme Court, the Commonwealth Court filed an en banc opinion in another case that overruled its decision in respondent's case and held that the exclusionary rule does not apply in parole revocation hearings. Kyte v. Pennsylvania Bd. of Probation and Parole, ___ Pa. ___, ___, n. 8, 680 A. 2d 14, 18, n. 8 (1996).


[92] *fn3 We also invited the parties to brief the question whether a search of a parolee's residence must be based on reasonable suspicion where the parolee has consented to searches as a condition of parole. Respondent argues that we lack jurisdiction to decide this question in this case because the Pennsylvania Supreme Court held, as a matter of Pennsylvania law, that respondent's consent to warrantless searches as a condition of his state parole did not constitute consent to searches that are unreasonable under the Fourth Amendment. Petitioner and its amici contend that the Pennsylvania Supreme Court's opinion was at least ambiguous as to whether it relied on state or federal law to determine the extent of respondent's consent, and that we therefore have jurisdiction under Michigan v. Long, 463 U. S. 1032 (1983). We need not parse the Pennsylvania Supreme Court's decision in an attempt to discern its intent, however, because it is clear that we have jurisdiction to determine whether the exclusionary rule applies to state parole revocation proceedings, and our decision on that issue is sufficient to decide the case. We therefore express no opinion regarding the constitutionality of the search.


[93] *fn4 As discussed above, we have generally held the exclusionary rule to apply only in criminal trials. We have, moreover, significantly limited its application even in that context. For example, we have held that the rule does not apply when the officer reasonably relied on a search warrant that was later deemed invalid, United States v. Leon, 468 U. S. 897, 920-922 (1984); when the officer reasonably relied on a statute later deemed unconstitutional, Illinois v. Krull, 480 U. S. 340, 349-350 (1987); when the defendant seeks to assert another person's Fourth Amendment rights, Alderman v. United States, 394 U. S. 165, 174-175 (1969); and when the illegally obtained evidence is used to impeach a defendant's testimony, United States v. Havens, 446 U. S. 620, 627-628 (1980); Walder v. United States, 347 U. S. 62, 65 (1954).


[94] *fn5 We thus have held that a parolee is not entitled to "the full panoply" of due process rights to which a criminal defendant is entitled, Morrissey v. Brewer, 408 U. S. 471, 480 (1972), and that the right to counsel generally does not attach to such proceedings because the introduction of counsel would "alter significantly the nature of the proceeding," Gagnon v. Scarpelli, 411 U. S. 778, 787 (1973).