Newsclipping summary:
FEAR-List Bulletin posted by Brenda Grantland, 5/23/95
The San Francisco Chronicle for Tuesday May 9, 1995 contains a front page story "Why A Major Drug Suspect May Go Free" by Reynolds Holding.
Although it's good that our double jeopardy challenges are finally making news, this article makes it look like the courts are going to free hundreds of major "drug dealers" for a silly technicality.
Although the article explains the double jeopardy issue, it fails to mention that prosecutors have a choice which lets them forfeit assets and criminally prosecute at the same time -- criminal forfeiture. Had they used criminal forfeiture they could have tried both cases at the same time, and there would have been no double jeopardy problem.
But prosecutors didn't want to change their policies. They preferred civil forfeiture procedures -- which gave them unbelievable advantages over criminal defendants. Now they're complaining because their shortcut to due process backfired.
The Chronicle quotes San Francisco U.S. Attorney Michael Yamaguchi as saying "It's like waking up one morning and being told you now have to drive on the left side of the road."
Actually, it's more like knowing the Constitution requires you to drive on the left side of the road, but deciding that you probably won't get caught, and if you did get caught what would the courts do -- let out a lot of inmates out of prison?
Federal prosecutors had no reason to be surprised. The double jeopardy rulings are not new or sudden developments. The Supreme Court decided Halper in 1989 -- that's when they held that a non-remedial civil penalty is punishment for double jeopardy purposes. In 1993 the Supreme Court held that forfeiture is punishment. And in 1994, the Supreme Court reiterated that civil penalties that are punitive violate double jeopardy.
Rather than read Halper as a warning to clean up their act, the Justice Department decided to continue their practice of forcing defendants to fight two -- or sometimes three or four -- cases at once. They gambled that the courts would always rubber stamp whatever polices the Justice Department chose -- and they lost. Now, six years later, they have to pay the price.