In rem forfeiture, he points out, has traditionally been based on the theory that the property is guilty of an offense, that is, it has been tainted by its unlawful use. Chandler notwithstanding, many courts, having found a proper 'taint,' have also applied a proportionality test to determine whether a forfeiture constitutes an excessive fine. The proportionality test compares the nature of the offense with the harshness, monetary or otherwise, of the forfeiture imposed on the owner. Forfeiture of real property can be 'grossly disproportionate' to the offense involved. Although any forfeiture must meet the instrumentality test, its potentially harsh results, when applied alone, make courts hesitate to accept it as the sole test for applying the command of Austin.
Many courts accept the proportionality test as a check on the instrumentality approach.
This position is supported by the following reasons. It made punishment the focus of attention. For purposes of the Excessive Fines Clause, 'the question is not . . . The Court recognized that, like in personam punishments, in rem forfeitures also punish the property owner. Only by adding a proportionality test is the 'excessiveness' of the fine determined by weighing both the in rem and in personam punishments against the seriousness of the crime.