Forty-one states and Puerto Rice asked the High Court to review this Ninth Circuit double jeopardy case. Defense attorneys welcome opportunity to end inconsistent rulings among lower courts on this issue.

Contrary to no one's expectations, the United States Supreme Court agreed to review the case that has virtually halted civil forfeitures across the country, caused the dismissal of a number of pending criminal prosecutions, and prompted thousands of inmates to seek vacation of their convictions, or the return of property taken from them by the government.

In United States v. $405,089.23 in U. S. Currency, an appellate case won by an inmate law student without the assistance of attorneys, the Court of Appeals for the 9th Circuit ruled that civil forfeitures constitute punishment for the purposes of double jeopardy. This means that where a single crime is involved, the government must seek forfeiture and prosecution in the same proceeding. Otherwise, the second attempt to impose punishment violates the prohibition against double jeopardy.

United States v. McCaslin, a lower court decision decided about one week before $405K had reached the same conclusion, vacating a conviction on these grounds for the first time in the country.

Soon thereafter courts across the country were flooded with petitions from inmates claiming that they had been previously punished by a civil forfeiture and that their convictions must be vacated. Prosecutors now are besieged with litigation which requires that they defend cases that they thought they had already won.

Should the Supreme Court affirm the 9th Circuit's decision, even in part, many convictions and civil forfeitures will have to be undone. Perhaps the most ironic aspect of this story is that the government has been on notice for at least six years that their procedures were constitutionally flawed, but stubbornly refused to follow the readily available procedures which would have satisfied the Constitution. Criminal forfeiture statutes allow the government to simply combine the forfeiture and the criminal prosecution in the same case. But civil forfeitures are preferred by the government, because the property owner is presumed guilty, and, therefore, can seldom prevail, and because they have the added benefit of impoverishing the property owner as he or she faces a criminal prosecution.

Both the government and the property owners urged the Supreme Court to take this case to resolve a host of issues which have arisen in the six years since the Court ruled in 1989 that civil forfeiture could be considered punishment for double jeopardy purposes.