In Austin v. United States, the Supreme Court partly remedied this lack of statutory protection by ruling that the civil forfeiture constituted punishment for the purpose of the Excess Fines Clause of the Eighth Amendment. The Court, however, did not resolve the issue of how to determine the excessiveness of the civil forfeiture, giving lower courts the opportunity to articulate their own excessiveness tests.

After various lower courts struggled to fashion appropriate excessiveness tests, taking into consideration proportionality, instrumentality, and social policy concerns, the Second Circuit, in United States v. Milbrand, offered an innovative approach and articulated a separate test for nonperpetrators in determining the excessiveness of civil forfeitures of their premises. The nonperpetrator test succeeded in synthesizing the elements of instrumentality and proportionality, but was tainted by retaining the culpability of the perpetrator as one of the factors. Subsequently, the Ninth Circuit, in United States v. 6380 Little Canyon Road, offered a procedural improvement by separating the instrumentality and proportionality elements, requiring the government to prove the former and the nonperpetrator to prove the latter.

This Note examines Milbrand test from its origin, including Austin, to the improvement of Little Canyon Road, and argues that based on the success of Milbrand test, though it unfairly taints its nonperpetrator test with the factor of culpability of the perpetrator, courts should continue synthesizing the multi-factor approach, as the Ninth Circuit did in Little Canyon Road.