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Are Cannabis Abatement Administrative Penalties Unconstitutional?

February 23, 2019

After Wednesday’s Supreme Court ruling, we are left with the question:  Are

 

cannabis abatement administrative penalties, even partially, a form of punishment. If so, then they are fines and it can be argued that they are violating the 8th Amendment. As the United States Supreme Court stated in Austin v. United States (1993) 509 U.S. 602:

The purpose of the Eighth Amendment, putting the Bail Clause to one side, was to limit the government's power to punish. The Cruel and Unusual Punishments Clause is self-evidently concerned with punishment. The Excessive Fines Clause limits the government's power to extract payments, whether in cash or in kind, "as punishment for some offense."  "The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law."  "It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties." Thus, the question is not, as the United States would have it, whether forfeiture … is civil or criminal, but rather whether it is punishment.

 

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