concurring:
I am pleased to concur in Judge Niemeyer’s fine opinion. I agree that an instrumentality, rather than a proportionality, test is the proper one to determine whether forfeiture of property under 21 U.S.C. § 881(a) is excessive under the Eighth Amendment.
An Eighth Amendment instrumentality test is preferable to a proportionality test because it promotes both judicial economy and judicial restraint. To begin with, the Eighth Amendment instrumentality test bears a far closer relationship to the questions actually decided in a civil forfeiture proceeding. A verdict in favor of forfeiture will foreclose, in most instances, an Eighth Amendment claim under an instrumentality inquiry. This is as it should be, since the Eighth Amendment does not authorize judges to apply their personal notions of propriety to civil forfeiture proceedings.
I.
The language of § 881 sets a clear standard for determining whether property is forfeitable:
(a) Property subject. The following shall be subject to forfeiture to the United States and no property right shall exist in them:
(7) All real property, ... which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year’s imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.
21 U.S.C. § 881(a)(7). The standard established by § 881 goes far toward answering the instrumentality inquiry: real property is subject to forfeiture only if the property has been used, or was intended to be used, to facilitate the commission of a drug-related crime that would be punishable by more than one year’s imprisonment under the Controlled Substances Act. See Austin v. United States, — U.S. -, -, 113 S.Ct. 2801, 2811, 125 L.Ed.2d 488 (1993). If the statutory prerequisites for forfeiture are carefully observed, a judgment of forfeiture generally will satisfy the instrumentality test adopted by the court today. Eighth Amendment concerns will often be subsumed within the finding in favor of forfeiture.
The congruence between civil forfeiture judgments and an Eighth Amendment instrumentality inquiry can easily be demonstrated. The court declares that “to sustain a forfeiture against an Eighth Amendment challenge, the court must be able to conclude, under the totality of circumstances, that the property was a substantial and meaningful instrumentality in the commission of the offense.” 36 F.3d at 365. This inquiry mirrors the threshold probable cause inquiry in an in rem forfeiture proceeding almost exactly. A judge or jury asking whether the statutory nexus between the property and the illegal activity has been established will nearly answer the question the court’s totality test seeks to resolve. That is, a judgment of forfeiture presumes a consideration of the totality of the circumstances: “It is well established, both in the law of forfeiture and in other areas of the law, that the probable cause inquiry is a flexible one in which the court must consider the ‘totality of the circumstances.’ ” United States v. $121,100.00 in United States Currency, 999 F.2d 1503, 1506 (11th Cir.1993) (citations omitted). See also United States v. Thomas, 913 F.2d 1111, 1115 (4th Cir.1990) (noting that in a forfeiture proceeding, a court determines probable cause by reference to “the facts in their totality”).
The factfinder’s task in a forfeiture proceeding is to determine whether the subject property was “substantially connected” to illegal activity. See United States v. 7715 Betsy Bruce Lane, 906 F.2d 110, 112-13 (4th Cir.1990) (probable cause is established by a “substantial connection” between the property and the illegal activity). This question too parallels the Eighth Amendment instrumentality inquiry. The statutory “innocent owner” defense in § 881(a)(7) likewise goes far toward assuaging Eighth Amendment con-*369ceras: an owner has an opportunity to refute the government’s prima facie showing of probable cause by asserting his lack of culpability. To the degree that this court lists as Eighth Amendment concerns either of these statutory factors — the nexus between the property and the illegal activity and the owner’s culpability — these include the very elements one would expect to come before the trier of fact in a forfeiture proceeding. Indeed, the court notes that both factors were determined by the jury in this case to weigh in favor of forfeiture: “At the conclusion of the evidence, the jury found in favor of the United States, concluding that the property had been used to facilitate the commission of violations of the drug laws, ... and that Chandler could not claim a lack of awareness.” 36 F.3d at 361 (emphasis added).
In United States v. One 1976 Mercedes Benz 280S, 618 F.2d 453 (7th Cir.1980), the Seventh Circuit, in affirming the right to trial by jury in a civil forfeiture proceeding under 21 U.S.C. § 881, observed that “the infusion of the earthy common sense of a jury might upon occasion mitigate appropriately the harsh impact sometimes characteristic of in rem procedure.” Id. at 469. By answering the statutory inquiry in the affirmative, the trier of fact determines not only that forfeiture is appropriate, but to a great extent that forfeiture of the property is not harsh or excessive under an instrumentality test. Such a verdict would foreclose an Eighth Amendment challenge in all but egregious circumstances.*
II.
A straight proportionality test, in contrast to an instrumentality test, bears little analytical relationship to a judgment of forfeiture. A proportionality analysis requires eonsider-ation of the value of the illegal drugs at issue and whether the value of the subject property overwhelms the amount involved in the drug transaction. See, e.g., United States v. 427 and 429 Hall Street, 853 F.Supp. 1389, 1400 (M.D.Ala.1994) (proportionality inquiry measures “the value of the defendant property against the scope of the drug trafficking”). This question does not necessarily mirror the factfinder’s inquiry. It is possible that a factfinder could find a nexus between the subject property and a drug transaction sufficiently close to satisfy the statutory standards, yet the property could still be deemed non-forfeitable under a proportionality inquiry if it were, for instance, an extremely expensive home or automobile. Too frequently proportionality analysis serves only to insulate those who have “hit it big” in the drug trade from the forfeiture prescribed by statute.
III.
In sum, I agree that an instrumentality test is the appropriate test to be applied in determining whether a forfeiture is excessive under 21 U.S.C. §§ 881(a)(4) and (a)(7). Any constitutional test, however, must be designed with an appropriate measure of judicial restraint. The results under an open-ended, multi-factor Eighth Amendment inquiry have displayed a lack of consistency and structure. Compare United States v. 6625 Zumirez Drive, 845 F.Supp. 725, 732-38 (C.D.Cal.1994) (adopting a three-part exces-siveness test and holding forfeiture unconstitutional) with 427 and 429 Hall Street, 853 F.Supp. at 1399-1402 (adopting a different excessiveness test and holding forfeiture constitutional). A recognition of the relationship between the Eighth Amendment inquiry and *370the civil forfeiture scheme will remedy this difficulty. The jury’s verdict of forfeiture in this case necessarily meant that the property was used to facilitate violations of the drug laws and that appellant could not avail himself of an innocent owner defense. Appellant has failed to establish the egregious circumstances necessary to overturn the jury’s verdict of forfeiture on Eighth Amendment grounds. It follows that I would affirm the judgment.
In some instances, of course, the nexus inquiry is never presented to a jury but is resolved as a matter of law by the court. Specifically, if a claimant fails to rebut the government's showing of probable cause, the government is entitled to forfeiture of the subject property on summary judgment. See Thomas, 913 F.2d at 1114. A finding of probable cause is also a question of law which is subject to plenary review on appeal. See, e.g., 7715 Betsy Bruce Lane, 906 F.2d at 112. These principles do not, however, alter the analysis of the Eighth Amendment inquiry. Whether a court awards forfeiture on summary judgment or a trier of fact awards forfeiture after a trial, the very fact that the statutory requisites for forfeiture have been satisfied goes far toward precluding an Eighth Amendment challenge. An affir-mance of the trial court's finding of probable cause, for example, will generally foreclose independent consideration of an Eighth Amendment excessiveness challenge: if the subject property has been found to be "substantially connected” with illegal drug activity, the instrumentality test has almost by definition been satisfied.