Nos. 95-345 and 95-346

In the Supreme Court of the United States October Term, 1995


United States of America, Petitioner
Guy Jerome Ursery, Respondent.
United States of America, Petitioner
Four Hundred and Five Thousand, Eighty-Nine Dollars and Twenty- Three Cents ($405,089.23) in United States Currency, Et Al.,



Steven R. Shapiro
American Civil Liberties Union Foundation
132 West 43 Street
New York, New York 10036
Susan N. Herman
(Counsel of Record)
Stacy Caplow
250 Joralemon Street
Brooklyn, New York 11201
Gerard E. Lynch
435 West 116 Street
New York, New York 10027


1. In 95-345: Does Double Jeopardy Clause prohibit defendant's criminal prosecution for manufacturing marijuana because government obtained consent judgment in civil action that sought forfeiture of defendant's property on ground that it facilitated illegal drug activities?

2. In 95-346: Does Double Jeopardy Clause prohibit civil proceeding for in rem forfeiture of property alleged to be proceeds of narcotics and money laundering activities in case in which owners of property were also prosecuted for, and convicted of, narcotics and money laundering crimes?


The American Civil Liberties Union (ACLU) is a nationwide, nonprofit, non-partisan organization with nearly 300,000 members dedicated to the principles of liberty and equality embodied in the Constitution. The government's aggressive use of federal civil forfeiture statutes to punish or deter conduct that is also the subject of parallel criminal proceedings threatens many constitutional values of great concern to the ACLU and its members. Multiplicitous proceedings punishing the same conduct are inherently offensive to Double Jeopardy principles. The government's ability to manipulate the order of parallel civil and criminal proceedings further adds to the anxiety, expense, and risk suffered by criminal defendants in many ways to be detailed below. The ACLU believes that the potential for prosecutorial overreaching cannot be curbed unless the Court declares that civil forfeiture and criminal proceedings concerning the same conduct may not be brought separately.


In No. 95-345, Michigan State police officers found 142 marijuana plants growing in a field adjacent to respondent Guy Ursery's property, and a small amount of marijuana paraphernalia inside his home. The United States began an in rem forfeiture proceeding on September 30, 1992, seeking to forfeit the Ursery family's residence pursuant to 21 U.S.C. 881(a)(7), on the theory that the residence had been used to facilitate a marijuana offense. On February 5, 1993, Ursery was charged in a one-count indictment with manufacture of marijuana in violation of 21 U.S.C. 841(a)(1). The civil forfeiture action was settled by consent judgment entered on May 24, 1993; Ursery was convicted by a jury on July 2, 1993 and sentenced, on January 19, 1994, to 63 months imprisonment and four years supervised release. In No. 95-346, respondents Charles Arlt and James Wren were tried on an indictment handed down on June 12, 1991, charging them with manufacturing methamphetamine, money laundering, and conspiracy, pursuant to 21 U.S.C. 841, 846 & 18 U.S.C. 371 & 1956; on June 17, 1991, the United States instituted a civil forfeiture action seeking to forfeit several bank accounts and various items of personal property, some on the theory that they were proceeds of illegal narcotics transactions under 21 U.S.C. 881(a)(6), and some on theory that they were "involved in" money laundering violations under 18 U.S.C. 981(a)(1)(A). Arlt and Wren were convicted on March 27, 1992; on April 1, 1993, the District Judge presiding over the forfeiture action granted the government's summary judgment motion. 33 F.3d at 1214. Respondent Ursery's criminal conviction was reversed by the Sixth Circuit Court of Appeals on the ground that respondent had previously been put in jeopardy for the same offense by the forfeiture proceeding, 59 F.3d 568 (1995). The judgment forfeiting respondents Arlt and Wren's property was also reversed, by the Ninth Circuit Court of Appeals, on the ground that they too had been put twice in jeopardy. 33 F.3d 1210 (1994).


The separate civil forfeiture and criminal proceedings below violated the Double Jeopardy Clause's guarantee that no one shall be put twice in jeopardy for the same offense. In numerous cases, this Court has firmly rejected the formalistic view that legislatures may evade otherwise applicable constitutional restrictions on criminal or quasi-criminal proceedings, simply by slapping a "civil" or "in rem" label on its creations. In Austin v. United States, 113 S. Ct. 2801 (1993), a unanimous Court established that civil forfeiture proceedings can be punitive and therefore subject to Eighth Amendment limitations; United States v. Halper, 490 U.S. 435 (1989), again unanimously rejected the civil/criminal distinction, holding that civil proceedings are punishment covered by the Double Jeopardy Clause when their purposes are not solely remedial. See also Department of Revenue of Montana v. Kurth Ranch, 114 S. Ct. 1937 (1994). Halper and Austin demand a categorical approach to this issue, reviewing the nature and history of the particular forfeiture statute involved to determine whether it is punitive, although Halper also establishes that even a civil statute generally found to have exclusively remedial purposes is subject to double jeopardy constraints if it is applied in a punitive manner in a particular case.

The forfeitures in these cases include forfeiture under 21 U.S.C. 881(a)(7), the very statute Austin found punitive, and other modern forfeiture statutes that are shown by their characteristics and their legislative histories to be at least partially punitive, and without any lengthy historical pedigree for excuse. Compare the forfeiture statute at issue in Bennis v. Michigan, No. 94-8729, 1996 WL 88269 (March 4, 1996), stemmed from the historical use of forfeiture to abate nuisances such as brothels. This Court has declared forfeiture statutes in general to be "quasi-criminal" and has applied a variety of constitutional guarantees outside the Sixth Amendment (which is by its terms and structure reserved to criminal "prosecutions") to ensure that such proceedings do not punish unfairly -- excessiveness of punishment, covered in Austin, is not the only relevant constraint. See, e.g., One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965) (unanimously applying Fourth Amendment exclusionary rule to forfeiture proceedings); United States v. United States Coin & Currency, 401 U.S. 715, 721-22 (1971) (privilege against self-incrimination, under appropriate circumstances); Boyd v. United States 116 U.S. 616, 634 (1886) (same); United States v. James Daniel Good Real Property, 114 S. Ct. 492 (1993) (due process notice and opportunity to be heard, absent exigent circumstances).

The values of the Double Jeopardy Clause are implicated whenever punishment is imposed in two separate proceedings. Two different judges preside; there are two triers of fact; issues concerning the punitive forfeiture can linger for years after a criminal verdict. The risk that the government may wear down its targets increases, particularly in light of procedural weapons, like discovery and burden of proof, that give the government powerful advantages in civil forfeiture proceedings that would be wholly unavailable in a criminal prosecution.

The parallel civil forfeiture and criminal proceedings in these cases did inflict double jeopardy for the same "offense" within the meaning of the Double Jeopardy Clause, because the forfeiture statutes at issue subsume the underlying criminal offenses. Therefore, these multiple punishments, although they would have been allowable in a single proceeding, may not be imposed in separate proceedings. To what extent the Due Process Clause would permit civil forfeiture and criminal proceedings to be joined, so that the government could enjoy the advantage of a lower burden of proof with respect to the penalty of forfeiture, is not an issue presented in this case.



The government's most fundamental objection to the decisions of the courts below is that the civil forfeitures in these cases do not constitute "punishment." Brief of the United States at 36-49. Consequently, the government claims, their imposition in cases in which the government also sought to punish the property owners criminally did not subject respondents to multiple, repetitive punishments or proceedings. This argument is inconsistent with this Court's decisions in United States v. Halper, 490 U.S. 435 (1989), and Austin v. United States, 113 S. Ct. 2801 (1993). See also Department of Revenue of Montana v. Kurth Ranch, 114 S. Ct. 1937 (1994). Halper, Austin, and Kurth Ranch establish that Congress may not evade fundamental constitutional rules limiting punitive sanctions simply by applying a "civil" or "remedial" label to punishments for criminal conduct. This principle, essential to prevent the erosion of constitutional standards by an empty formalism, necessarily requires a more thoughtful and complex analysis of particular legislative regimes than would a simplistic jurisprudence of labels. All forfeiture statutes, and even all forfeitures under the same statutes, are not the same. But Halper and Austin establish the framework for analysis of civil forfeiture laws that should govern in these cases, protecting both the legitimate law enforcement interests underlying forfeiture statutes and the fundamental rights guaranteed by the Constitution.

A. Under Halper and Austin, Forfeiture Provisions That Are Not Solely Remedial in Intent and Effect Impose Punishment for Purposes of the Double Jeopardy Clause.

In Halper, this Court unanimously recognized that a civil penalty may constitute punishment for purposes of the Double Jeopardy Clause. The Court expressly rejected any claim that the "civil" or "criminal" label attached to a proceeding or remedy is of great importance in determining whether a person subjected to it is placed in "jeopardy." 490 U.S. at 447-48. The core holding of Halper was that the Double Jeopardy Clause prohibits separate civil and criminal penalties for the same offense "to the extent that the [civil] sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." Id. at 448-49.

Halper dealt with a liquidated damages provision fixing a specific, minimum recovery for the government in a civil action to recover for false claims made by a service provider. The basic legislative scheme in Halper was concededly remedial, closely resembling familiar liquidated damages provisions in private contracts. Nevertheless, the Court held that when the penalty set by the statute was grossly disproportionate to the actual damages suffered by the government, the penalty could no longer be considered purely remedial, even allowing for the "inevitabl[e] ... rough justice" quality of liquidated damages provisions. Id. at 449. Though the statutory provision was intended to be remedial, under a case-by-case "rule ... of reason," a court could determine, by an accounting of the government's actual "damages and costs," that as applied to a particular situation the compensatory rationale had been exceeded, and the penalty "cross[ed] the line between remedy and punishment." Id. at 449-50.

Austin analyzed the distinction between the remedial and the punitive in the very different context of civil forfeitures resulting from narcotics crimes. Once again, the Court was unanimous, this time in holding that the Excessive Fines Clause of the Eighth Amendment applied to civil forfeitures under one of the very statutes at issue in this case, 21 U.S.C. 881(a)(7). As in Halper, the Court ruled that the issue was not whether a forfeiture served some remedial purpose. Rather, a forfeiture contained a punitive element, and was subject to the constitutional limitation on punishment, so long as its purposes and effects were not entirely remedial: "`[A] civil sanction that cannot fairly be said solely to serve a remedial function ... is punishment." 113 S.Ct. at 2806, quoting Halper, 490 U.S. at 448 (emphasis added).

The Austin Court pointed out that its precedents had "consistently recognized that forfeiture serves, at least in part, to punish the owner." Id. at 2810. Moreover, and of critical importance, the Court analyzed the specific nature and purposes of the particular forfeiture provisions before the Court -- those provided in 21 U.S.C. 881(a)(4) and (a)(7) -- and concluded that these particular forfeitures bore specific indicia of serving the classically punitive purposes of retribution and deterrence.

First, "[u]nlike traditional forfeiture statutes," the drug forfeiture provisions contain an innocent owner defense, thus "focus[ing] the provisions on the culpability of the owner." Id. at 2810-11.

Second, Congress chose "to tie forfeiture directly to the commission of drug offenses," making the property forfeitable not because of its nature but because of its particular relation to the commission of a criminal offense. Id. at 2811.

Third, in enacting these particular forfeiture provisions, Congress expressly intended them to supplement "the traditional criminal sanctions of fine and imprisonment," which it found "inadequate to deter or punish" drug traffickers. Id., citing S. Rep. No. 98-225, at 191 (1983).

The government argues that the analyses of Halper and Austin are radically distinct, and that for purposes of the Double Jeopardy Clause, as distinct from the Excessive Fines Clause, whether a forfeiture is punitive must be decided by a "case-by-case inquiry," rather than "categorical[ly]." Brief of the United States at 13-14.

The case-by-case analysis in Halper is not a substitute for, but an addition to the categorical approach of Austin. The different emphases in Halper and Austin are attributable not to the different constitutional clauses involved, but to the different statutory schemes at issue. The statutory penalty in Halper was not in itself punitive, because it was expressly designed as remedial and compensatory. The issue therefore became whether such a statute, as applied to Halper's particular facts, could exceed its remedial purposes and become punitive.

The statutory penalty at issue in Austin, on the other hand, was inherently punitive -- it had no non-governmental civil analogue and had been specifically intended by Congress to serve in large part as punishment. Moreover, forfeitures (unlike liquidated damages) are the closest to criminal punishments of all civil penalties, and have long been recognized as at least "quasi-criminal in character." One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700 (1965) (by a unanimous court); see also Boyd v. United States, 116 U.S. 616, 634 (1886).

Taken together, then, Halper and Austin establish three basic principles:

First, and most importantly, the "punishment" issue cannot be determined by labels. The denomination of a penalty as "civil" or "in rem" does not prevent that penalty from being a "punishment" which, under the Double Jeopardy Clause, can only be imposed once for the same offense.

Second, a penalty is punishment if it cannot fairly be characterized as solely remedial in its application.

Third, particular penalties enacted by Congress can be identified, on the basis of their characteristics and the legislative purpose behind their adoption, as intrinsically serving punitive purposes.

These principles should dictate the determination of whether the forfeitures imposed on respondents here constituted punishment.

B. The Forfeitures in the Instant Cases are Punitive.

The government's attribution of remedial purposes to the forfeitures in question ignores the nature and legislative history of the particular forfeiture provisions at issue, constructing instead an entirely hypothetical set of non-punitive purposes derived from other applications of completely different forfeiture statutes.

The purposes, scope, incidents and utilization of forfeiture have changed dramatically over time. See generally Leonard W. Levy, A License to Steal: Forfeiture of Property 1-81 (1996). Just as Congress may not escape limitations imposed by the Constitution by labeling proceedings "civil," so this Court should not misuse history by noting that in rem forfeiture was familiar to the Framers, and then concluding that whatever Congress chooses to label an in rem forfeiture would have been recognized as such by James Madison. The forfeitures in the cases before the Court include modern innovations that cannot be passed off as traditional anomalies that, for historical reasons, may receive a free pass from constitutional scrutiny, for they differ "not only in degree, but in kind, from [their] historical antecedents." United States v. James Daniel Good Real Property, 114 S. Ct. 492, 515 (1993) (Thomas, J., concurring in part and dissenting in part). All forfeitures are not created equal, and the characterization of a forfeiture as punitive or remedial will depend on the nature of the particular forfeiture involved.

Many forfeitures have obviously remedial purposes. Forfeitures of contraband, for example, and forfeiture of many types of instrumentality of crime, will often have the remedial purpose of removing dangerous items from circulation. Narcotics, for example, may be seized, forfeited and destroyed by the government because it is illegal and dangerous for any unauthorized person to possess them. Smuggled goods are a special form of contraband in that they may not lawfully be possessed in this country until the customs duty is satisfied, regardless of the culpability of the person possessing the goods. Weapons, burglar tools, and alcoholic beverages, and the component parts or substances used to make them, may be declared forfeit when they are used in the commission of a crime, not simply as a supplement to fines or imprisonment, but because such items are dangerous and therefore subject to remedial regulation of their possession and use. Moreover, the punitive component of such forfeitures is minimal, given the relatively low legitimate value of such items. The vast majority of this Court's cases dealing with forfeiture, and particularly the early cases relied upon to provide historical validation for the supposed remedial underpinnings of civil forfeitures generally, deal with forfeitures of this kind.

But neither of the forfeitures now before the Court stems from such traditional uses of forfeiture. The statute at issue in Ursery (No. 95-345), 21 U.S.C. 881(a)(7) -- the very statute found in Austin to have a punitive purpose -- was first enacted in 1984, as part of the Comprehensive Crime Control Act of 1984, P.L. 98-473.

While the government before this Court solemnly invokes the traditional purposes of in rem forfeiture of property, such as inducing owners of property to use care, abating a nuisance, and "insuring an indemnity to the injured party," Brief of the United States at 44-45, these supposedly remedial objectives are nowhere mentioned in the legislative history. The Senate Report accompanying the Act rarely distinguishes between civil and criminal forfeiture, referring repeatedly and indiscriminately to "forfeiture" as an additional sanction to "deter or punish" lucrative crimes for which "the traditional criminal sanctions of fine and imprisonment are inadequate." S. Rep. 98-225 at 191.

The particular provision extending civil narcotics forfeitures to real property used in furtherance of narcotics crimes, and the new amendments to the criminal forfeiture provisions of RICO to include forfeiture of the proceeds of RICO violations, are described as two aspects of an initiative to realize "the full law enforcement potential of forfeiture" by increasing the extent of asset seizures, id. at 194-95. Moreover, the same 1984 legislation that added the real property subsection to the narcotics civil forfeiture statute expanded the criminal forfeiture provisions, formerly limited to continuing criminal enterprise cases, to cover all narcotics felonies, see P.L. 98-473, 303, and also, like the newly enhanced civil forfeiture provision, to include forfeiture of real estate. See, e.g., S. Rep. 98-225 at 211. Thus, the very forfeiture provisions touted here by the government as remedial were designed by Congress as means of punishing and deterring criminal conduct.

In light of this history, it simply defies reality for the government to claim that forfeitures of narcotics offenders' real property pursuant to such a statute are not at least partially punitive in nature. Nor would a serious application of the government's proposed "case-by-case" analysis lead to a different result. This is not a case, like those cited by the government, in which the property constituted a public nuisance because the entire premises constituted an open and notorious drug market. Cf. United States v. 141st Street Corp., 911 F.2d 870 (2d Cir. 1990), cert. denied, 498 U.S. 1109 (1991), cited in Brief of the United States at 44 n.12.

Any claim that Ursery's home constituted a public danger or nuisance, either intrinsically or under his ownership, is defeated by the fact that the government chose to allow Ursery to retain ownership of the home, settling the forfeiture case for a financial payment. See 59 F.3d at 570. The effect of the supposedly "remedial" action was thus neither more nor less than to impose a fine on Ursery for misusing his property.

In $405,089.23 (No. 95-346), the government sought forfeiture of "proceeds" and property "involved in" money laundering violations pursuant to 21 U.S.C. 881(a)(6) and 18 U.S.C. 981(a)(1)(A). Like 881(a)(7), these statutes are hardly time-honored features of common-law jurisprudence. As even the government concedes, "[s]tatutes providing for forfeiture of proceeds of criminal activity do not share the historical pedigree of other in rem forfeitures." Brief of the United States at 14.

The first forfeiture provision explicitly permitting the forfeiture of the proceeds of narcotics transactions was the criminal forfeiture provision of 21 U.S.C. 848, adopted as 408 of P.L. 91-513, the Comprehensive Drug Abuse Prevention and Control Act of 1970. Section 511 of the same Act adopted a civil forfeiture regime for various categories of property, now essentially codified in 21 U.S.C. 881(a)(1) - (a)(5). But the proceeds provision of 881(a)(6) was not added until 1978, in "an important expansion of governmental power." United States v. 92 Buena Vista Avenue, 507 U.S. 111, 121 (1993). The Joint Explanatory Statement submitted to Congress with this bill expressly recognized "the penal nature of forfeiture statutes," 7 U.S. Code Cong. & Admin. News 9518, 9522 (1978), and made no reference to the post hoc claim of the government and of some lower courts that forfeitures of proceeds are remedially intended to repay the government for the costs of prosecution. Brief of the United States at 44-46.

Rather, the provision was passed by the Senate following a speech by its sponsor urging that The criminal justice system can only be effective if there is a meaningful deterrent, . . . The amendment I propose here today is intended to enhance the efforts to reduce the flow of illicit drugs in the United States by striking out against the profits from illicit drug trafficking. . . . Thus, the punitive and deterrent purposes of the Controlled Substances Act would have greater impact on drug trafficking.

As noted above, in 1984 substantially identical criminal forfeiture provisions were added, giving the government the choice of proceeding in a single criminal action if it chose to do so. The legislative history does not suggest that Congress envisioned the new criminal forfeiture of proceeds as playing any different role than civil forfeitures -- the criminal alternative was simply seen as a "more efficient method of obtaining the forfeiture of assets of drug defendants" in certain circumstances. S. Rep. 98-225, supra, at 197.

The money laundering forfeiture provisions of 18 U.S.C. 981 were first enacted in 1986, as part of the same legislation that created the criminal money laundering provisions of 18 U.S.C. 1956 and 1957, and the attendant criminal forfeiture provisions of 18 U.S.C. 982. Today, after extensive expansions and amendments, the civil and criminal forfeiture provisions relating to money laundering are substantially identical. As in Ursery, the government could have sought forfeiture of the same property it seeks here as part of a single proceeding, by invoking the criminal forfeiture provisions of 982, instead of bringing a separate civil action under 981. Like the narcotics civil forfeiture provisions, moreover, 981 focuses on the culpability of property owners by including an innocent owner defense. 18 U.S.C. 981(a)(2).

The government nevertheless argues that stripping drug dealers of the proceeds of crime is not punitive, because it is designed to "prevent unjust enrichment," Brief of the United States at 47-48, or because "proceeds forfeiture can never be out of proportion to the `loss' suffered by the government or society." Id. at 49, quoting Smith v. United States, No. 95-2259, 1996 WL 72858, at *3 (7th Cir. Feb. 21, 1996). But this is sophistry. It may well be that a fine or forfeiture that is limited to the profit a criminal has made from crime cannot be constitutionally disproportionate or excessive, or even that such a fine or forfeiture is inadequate punishment to constitute an effective deterrent. But a weak or insufficient punishment is still punishment.

Until the government's recent quest to rationalize its position on civil forfeitures, no one would ever have claimed that the generally inadequate fines that characterized federal criminal law until the 1980's did not constitute punishment because they often did not suffice to make crime financially unprofitable. Forfeiture of criminal proceeds was brought into the law as part of RICO and the continuing criminal enterprise statutes precisely because existing financial sanctions were inadequate as punishment, which must at least remove the profits from crime regardless of whatever additional sanctions may then be imposed. See Russello v. United States, supra, 464 U.S. at 25. The government's attempt to recast punitive sanctions as a Halper-like "liquidated damages" provision, to "compensate" the government for the "social costs" of crime, is equally unavailing. Crimes like those of respondents surely impose a social cost. But it is the very essence of criminal punishment that it is directed not at the private compensation of individual victims for the harms they suffer through crime, but at retribution for the more generalized harm to the social order inflicted by criminals. In Halper the government sought, at least in part, compensation for specific harm to its proprietary interests. When the government seeks a "remedy" for the social damage inflicted by drug dealers, it is engaged in the classically retributive and deterrent exercise of criminal punishment.

Once again, the government's proposed "case-by-case" methodology would yield the same results as a more categorical analysis. Where, as here, the forfeiture of proceeds is sought from the very person who is separately charged with the crime that generated them, the forfeiture results directly from the commission of the crime charged. Moreover, as the Court of Appeals recognized, the forfeitures in $405,809.23 (No. 95-346) were not calibrated to strike only a "remedial" blow at traceable "proceeds" of specific crimes, but indiscriminately confiscated all of respondents' valuable assets under an amalgam of forfeiture statutes -- a clear signal that the forfeitures operated to punish respondents for their crimes. 33 F.3d at 1220 n.11.

No fair reading of the history of modern forfeiture statutes can portray the principal purpose of the statutes at issue here as anything but punitive. At the very least, the history shows that these statutes are not "solely remedial." Moreover, like the forfeitures found punitive in Austin, the forfeitures here are closely linked to (and indeed depend upon) the commission of crimes by respondents, and are based on statutes that focus on culpability by providing an innocent owner defense. The goal of these statutes is not to promote public safety by removing contraband or dangerous instrumentalities from circulation, or to abate nuisances. It is to take the profit out of crime, by stripping criminals of their ill-gotten gains. This is unquestionably a legitimate and desirable goal for Congress to pursue; but it is a punitive goal. As such, it should be subject to the limitations imposed by the Constitution on the power to punish.



A. This Court's Precedents and the Fifth Amendment Itself Establish that the Double Jeopardy Clause Prohibits Multiple Punitive Proceedings, Not Only Multiple Prosecutions.

"The basis of the Fifth Amendment protection against double jeopardy is that a person shall not be harassed by successive trials; that an accused shall not have to marshal the resources and energies necessary for his defense more than once for the same alleged criminal acts." Abbate v. United States, 359 U.S. 187, 198-99 (1959).

Respondents Ursery, Arlt and Wren suffered precisely the harms the Double Jeopardy Clause seeks to prevent: they were required to "run the gauntlet" more than once for the same offense, "thereby subjecting [them] to embarrassment, expense and ordeal and compelling [them] to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent [they] may be found guilty." Green v. United States, 355 U.S. 184, 187-88, 190 (1957). They also confronted two different judges and two different triers of fact in the repeated attempts to punish them.

The Double Jeopardy Clause does not provide that an individual may not be "prosecuted" twice, as the government argues, Brief of the United States at 16-36, but that an individual shall not be "subject for the same offence to be put twice in jeopardy of life or limb." U.S. Const. amend. V. As argued in Point I, supra, Halper and Kurth Ranch establish that "jeopardy" refers to risk of any punitive governmental action, and not just "criminal" punishment within the meaning of the Kennedy/Ward test. As long ago as Ex parte Lange, 8 U.S. (18 Wall.) 163 (1874), this Court refused to read the apparently limiting "life or limb" language as restricting the scope of the Double Jeopardy Clause's prohibition of multiple punishments. If the Clause applies to modern punishments like incarceration and fines at all, its reach must extend to "civil" imposition of these sanctions, as Halper held.

This Court's interpretation is supported by the structure of the Bill of Rights. Had the framers of the Double Jeopardy Clause wished to limit the sweep of that provision, they could have positioned the Clause in the Sixth Amendment, which governs only "criminal prosecutions," rather than in the Fifth Amendment, whose protections are not all so limited. Forfeiture proceedings may not command Sixth Amendment-based criminal procedures under the Kennedy/Ward test, but this Court has consistently applied constitutional guarantees outside the Sixth Amendment to these "quasi-criminal" proceedings. See One 1958 Plymouth Sedan, supra (Fourth Amendment exclusionary rule); Austin, at 2804 n.4 (Eighth Amendment Excessive Fines Clause); Good, supra, at 504 (Due Process Clause guarantees of notice and opportunity to be heard); cf. cases cited in note 11 supra (privilege against self-incrimination, when invoked to prevent later incrimination).

The dicta on which the government relies for the proposition that a "prosecution" is a prerequisite to double jeopardy protection, Brief of the United States at 17, not surprisingly, predate the decisions in Halper, Austin and Kurth Ranch. In these earlier decisions, the Court had assumed that the evils the Double Jeopardy Clause deplores could only take place if the government 1) brought successive criminal prosecutions, or 2) either exceeded the legislatively prescribed punishment or acted vindictively in a particular case. See Halper, 490 U.S. at 440. Halper can be described as supplementing this list in order to prevent prosecutors and legislatures from inflicting the harms the Double Jeopardy Clause has always prohibited through innovative use of "civil" proceedings. After Halper, it no longer makes sense to say that the Double Jeopardy Clause prevents the discrete injuries of multiple prosecutions or multiple punishments. Multiple punitive proceedings are prohibited, even if they do not precisely fit one of the two prongs of the previous dicta.

History does not justify discarding the unanimous conclusions of Halper and Austin. Even if the framers of the Constitution had been willing to countenance some successive forfeiture and criminal proceedings concerning traditional subjects of common law forfeiture, Point I, supra, established that the modern narcotics and money laundering forfeiture statutes at issue here bear little resemblance to common law forfeiture. Congress may indeed avoid the strictures of criminal procedure by creating civil forfeiture as a weapon, but if a prosecutor chooses to use this weapon in addition to criminal penalties, that prosecutor must respect not only the Eighth Amendment restriction on excessive punishment, but also the Fifth Amendment prohibition of multiple punitive proceedings. The limitation is not directed at the legislature so much as at the prosecutor. Whether Congress itself intended to authorize separate proceedings to effect forfeitures and the punishments imposed during criminal sentencing is not relevant to double jeopardy analysis. Congress is certainly entitled to deference when it defines what constitutes an "offense," see Missouri v. Hunter, 459 U.S. 359 (1983), and may, by defining separate offenses, afford prosecutors the discretion to bring even successive criminal prosecutions. See United States v. Dixon, 113 S. Ct. 2849 (1993). However, Congress may no more decide to allow prosecutors to bring multiple punitive proceedings for what it has already defined as the "same offense," see United States v. 9844 South Titan Court, 75 F.3d 1470, 1490-91 (10th Cir. 1996); Elizabeth Lear, Contemplating the Successive Prosecution Phenomenon in the Federal System, 85 J. Crim. L. & Criminology 625, 628 n.18 (1995), than it may unilaterally declare that its actions are not "punitive."

The government proposes that, here too, the Court limit itself to a narrow case-by-case approach, restricted to asking whether government actors in these particular cases were "vindictive" in pursuing multiple punitive proceedings. Brief of the United States at 27. But vindictiveness is not the only, or even the principal danger posed when the government has a quiver full of methods of seeking punishment. Regardless of the purity of their motives, if government attorneys are permitted to seek otherwise allowable penalties independently and sequentially, they may thereby exhaust a property owner's resources and will, and increase the risk of punishing the innocent.

This potential for abuse is inherent in all instances where the government seeks forfeiture and criminal penalties in parallel proceedings. See David B. Smith, Prosecution and Defense of Forfeiture Cases at 10.01 (1994); Mary M. Cheh, Constitutional Limitations on Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction, 42 Hastings L.J. 1325, 1389-98. The government has vast power to use sequencing of the two proceedings in whatever way will most disadvantage the defendant/claimant, who does not even have the benefit of a constitutional right to counsel in connection with the forfeiture proceeding. See Smith, supra at 11.0. In forfeiture proceedings under 881 and other statutes, the government may conduct discovery against the defendant/claimant, who may assert the privilege against self-incrimination only to find that he has lost his property as the price of defending his liberty. See Cheh at 1384-89. The government may litigate the forfeiture action first if it wishes to strip a prospective defendant of assets to hire criminal defense counsel, see Caplin & Drysdale, Chtd. v. United States, 491 U.S. 617 (1989), or may stay the forfeiture action if it prefers to avoid having to respond to the claimant's reciprocal discovery requests, see 21 U.S.C. 881(1). If the defendant is convicted in the criminal action, the government may move for summary judgment, as it did in $405,089.23 (No. 95-346); if the defendant is acquitted, the government may proceed with the forfeiture action nevertheless, under cover of the different burdens of proof involved. 89 Firearms, supra, 465 U.S. at 366.

Because two different prosecutors, often from different offices, represent the government in the parallel proceedings, see Ursery (No. 95-345), 59 F.3d at 575, claimant/defendants are unlikely to be able to "once and for all . . . conclude their confrontation with society," United States v. Jorn, 400 U.S. 470, 486 (1971), at the time of the jury's verdict. Like respondents Arlt and Wren (No. 95-346), they may find themselves defending their property for a full year or more after resolution of their criminal case, see 33 F.3d at 1214. Respondents Ursery, Arlt and Wren did not even have the benefit of having the same judge presiding over the interplay of the parallel proceedings to ensure that the government did not abuse its unilateral powers, see 59 F.3d at 569-70 (95-345); 33 F.3d at 1216 (95-346). Successive proceedings also increase the danger that, although innocent, a defendant might be punished nevertheless, because the government has the opportunity to rehearse its case and to use what it learns from the defense in the first proceeding to win the second.

Virtually every federal court of appeals to have examined the question has agreed with the Sixth and Ninth Circuits that permitting the government to separately pursue criminal penalties and civil forfeiture penalties amounting to "punishment" violates the Double Jeopardy Clause. See United States v. 9844 South Titan Court, supra, 75 F.3d at 1482-86 (10th Cir.); United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.), cert. denied, 115 S. Ct. 669 (1994); United States v. Tilley, 18 F.3d 295, 297 (5th Cir.), cert. denied, 115 S.Ct. 574 (1994); United States v. One Single Family Residence Located at 18755 North Bay Road, Miami, 13 F.3d 1493 (11th Cir. 1994); United States v. Millan, 2 F.3d 17 (2d Cir. 1993), cert.denied, 114 S.Ct. 922 (1994). Because the gravamen of the violation is that the government gives itself two bites of the apple, the relative timing of the two proceedings cannot determine whether there has been a double jeopardy violation. Therefore, because the forfeiture proceedings in these cases were punitive, the government was not permitted to pursue multiple proceedings if both proceedings involved the "same offense."

B. The Civil Forfeiture Actions and the Criminal Prosecutions in These Cases Are Proceedings Punishing the "Same Offense"

In both cases below, the government sought a punitive forfeiture of property belonging to criminal defendants in a parallel civil proceeding based on all or substantially all of the same conduct prosecuted in the respective criminal cases. Because forfeitures are not usually classified as "offenses," see Libretti v. United States, 116 S. Ct. 356 (1996), in that they define forms of punishment rather than criminal conduct, the Tenth Circuit has suggested that Double Jeopardy analysis should take a different form in parallel proceeding cases. 9844 South Titan Court, supra, at 1488-89. The classic Blockburger test measuring when two "offenses" are covered by the Double Jeopardy Clause -- "whether each provision requires proof of a fact which the other does not," Dixon, supra, 113 S.Ct. at 2856, quoting Blockburger v. United States, 284 U.S. 299, 304 (1932) -- can nevertheless be applied here. Once again, labels like "offense" are less significant than the purposes of the constitutional guarantee at issue.

As demonstrated in Dixon, the Blockburger test requires an abstract comparison of the elements of the distinct offenses. In Dixon, the Court also confirmed that, as in Harris v. Oklahoma, 433 U.S. 682 (1977)(per curiam), a sanction imposed for violating one crime through the commission of an incorporated offense can be barred by double jeopardy "even without specifying the latter's elements." Grady v. Corbin, 495 U.S. 508, 528 (1990)(Scalia, J., dissenting); Dixon, 113 S.Ct. at 2857. The Court in Harris examined a felony-murder statute that did not necessarily include the particular separately charged predicate felony because its language permitted any number of felonies to qualify as the predicate offense. In Dixon, the criminal contempt statute the Court reviewed essentially incorporated the entire penal code.

The forfeiture statutes at issue here speak in terms of "violations of this subchapter," 21 U.S.C. 881(a)(6) and (7), or "involved in violations" of specific provisions of title 18, 18 U.S.C. 981(a)(1)(A). As in Harris and Dixon, these forfeiture statutes subsume the underlying criminal charges so that forfeiture cannot be ordered without proof of the underlying criminal offense.

None of the federal courts of appeals to have considered the question disagrees with the Sixth and Ninth Circuits on this point either. See, e.g., 9844 South Titan Court, supra, 75 F.3d at 1489-90 (10th Cir.); Tilley, supra, 18 F.3d at 297-98 (5th Cir.); One Single Family Residence, supra, 13 F.3d at 1495 (11th Cir.).

Some forfeitures will survive the Blockburger test-- if the forfeiture complaint alleges different crimes than those for which defendant was prosecuted, if an owner has allegedly intended to use property in connection with an offense but has not yet committed or attempted that offense, or if the owner is simply not being prosecuted and therefore has no double jeopardy problem. In both of the cases before the Court, however, the criminal defendant and the claimant were identical, all or at least some of the indicted crimes served as the predicate offenses for the forfeiture, and the only additional element required to be proven related to the role of the property in the offense.

C. Criminal Punishment and the Punitive Forfeitures Sought in These Cases May Both Be Imposed Only During the Same Proceeding, With the Same Judge Presiding and the Same Trier of Fact.

The Sixth Circuit was clearly correct in ruling that the government's failure to seek the available punishments in a "single coordinated proceeding" led to a double jeopardy violation. The Ninth Circuit was also correct in observing that the government could have avoided this problem by seeking criminal forfeiture under the criminal indictment. 33 F.3d at 1216-17. While the ACLU believes that it would be preferable for the government to have utilized criminal forfeiture in these cases, this Court need not decide in the context of this case whether to agree with the Ninth Circuit that the government is always required to choose between civil forfeiture and criminal prosecution. The principal question is whether the government must relinquish the advantage of whatever lower burden of proof is permissible in civil proceedings every time it decides to prosecute the same conduct.

It may indeed be possible for a civil forfeiture proceeding and a criminal prosecution to be joined in the same proceeding, as the Sixth Circuit believed, 59 F.3d at 575, see, e.g., United States v. Certain Real Property, 972 F.2d 136 (6th Cir. 1992); United States v. Real Property, 816 F. Supp. 1077, 1085 (E.D. Va. 1993), as long as the two proceedings are assigned to the same judge and provide the defendant the possibility of having both issues tried before the same trier of fact (presumably in a bifurcated verdict procedure like that used in criminal forfeitures, see Smith, supra, at 11-14. 14-35 - 38.2).

In a joint proceeding, the Due Process Clause might limit the government's use of some of the favorable procedures attached to civil forfeiture. The Court can allow Congress to decide whether it wishes to provide for such joint proceedings and how to structure them before addressing constitutional questions not raised by these cases.

Finally, the state amici argue that application of double jeopardy principles to the states would be burdensome. See Brief Amicus Curiae of the State of Connecticut, et al. But state legislatures would continue to have the same generous options that Congress has: they may provide combined forfeiture/criminal proceedings, they may craft forfeiture statutes limited to remedial goals (which could then be brought separately), or they may use criminal instead of civil forfeiture when they intend to punish. The only thing that they may not do is to punish what they themselves have defined as the same offense, serving what they themselves have structured as punitive goals, in two separate proceedings. The Double Jeopardy Clause demands no less.


For the reasons stated above, the judgments below should be affirmed.

Respectfully submitted,

Steven R. Shapiro
American Civil Liberties Union Foundation
132 West 43 Street
New York, New York 10036
Susan N. Herman (Counsel of Record)
Stacy Caplo
250 Joralemon Street
Brooklyn, New York 11201
Gerard E. Lynch
435 West 116 Street
New York, New York 10027