An Overview of Michigan's Viewpoint on Double Jeopardy/Forfeiture and Excessive Fines

Newsclipping summary:

An Overview of Michigan's Viewpoint on Double Jeopardy/Forfeiture And Excessive Fines

A law review article by inmate paralegal Micheal Ward
FEAR-List Bulletin posted by Tom Flook, 7/28/95

An inmate in Michigan (who has served 16 1/2 yrs), sentenced under the infamous 650-Lifer law, has agreed to monitor legal opinions in Michigan for me (something I have been very ineffective at). He is also very active in FAMM through his wife, Melody. Hopefully, he will continue to provide use with good information. I submit his first article.

- Tom Flook

by Micheal Ward #128267 (5-005)
Saginaw Corr Fac
9625 Pierce Rd.
Freeland, MI 48623

It appears the circuit courts in the State of Michigan are reluctant to provide criminal defendants relief under the increasingly popular "Double Jeopardy" [or excessive fine] theory of constitutional law. However, the tide may soon turn, under the umbrella of the Federal Sixth Circuit Court of Appeals.

Despite the ardent efforts of Attorney, Kenneth Birch, from Lansing, Michigan, Judge Lawrence Glazer of the Ingham County Circuit Court, Lansing, Michigan, in the case of "People v Thomas Pantalone", No. 93-66231 FH (July 1995), on a post-conviction motion for relief from judgement, denied relief on a double jeopardy claim, where there was an actual civil forfeiture proceeding prior to the cocaine offense conviction, for basically the same reasons as set forth in "People v Hellis", Mich. Ct. of App., No. 169398/169707 (June 27, 1995)(published op.). Judge Glazer is known to be a conservative judge. Singing a different tune, however, a more learned, yet liberal, Judge Breck out of the Circuit Court on Oakland County, Michigan, released a drug offender, serving 20-30 yrs. in prison on 'bond' pending disposition of a double jeopardy claim, filed by attorney Howard Wittenberg of Detroit, Michigan.

The Circuit Courts for the State of Michigan, including the Court of Appeals, and the Michigan Supreme Court, for the most part are known to be conservative on the bench; especially in light of the super hero conservative, the illustrious Governor John M. Engler; who seems to be tuning out, and not tuning in, to the realities of the Constitution or the demands of the common people.

On a different note; the circuit court judges are "elected" officials and therefore overly conscious of what the Engler Administration and conservative party might think, if they were to ever interpret the law of the land to suit a convicted drug offender, toward effecting his release from prison. Be that as it may; however, the is relief in sight. Despite the head over heels faltering opinion of "People v Hellis"; that decision is doomed in the wake of "U.S. v Ursery", CA6, No. 94-1127 (July 13, 1995), where, the sixth Circuit adopted the more liberal standards of the 9^th Circuit Federal Court of Appeals, in its interpretation of Austin and Kurth Ranch."

Of course, on a Federal Constitutional issue, such as is the double jeopardy, excessive fines provisions of the Fifth & Eight Amendment; federal law controls. Therefore, "Ursery" now controls in the State of Michigan, and not "Hellis".

In sum, "Hellis" was wrongly decided, because the panel of judges in that case, although citing to "Austin" and "Kurth Ranch", effectively turned a blind eye to the pertinent language of analysis in those two controlling U.S. Supreme Court cases. Instead, it appears, the "Hellis" court, in error, adopted the standard announce in "Halper" (i.e., "no rational relationship to the government's loss"). In error, the "Hellis" court found a "common thread" running through the trilogy of "Halper", "Austin", and "Kurth Ranch", in that, as the "Hellis" court claims that, "double jeopardy protection under the Fifth Amendment or excessive fines protection under the Eighth Amendment are triggered only when, in contempation of other sanctions applied criminally, related forfeiture or tax proceedings impose additional penalties such that the 'total' penalty is 'disproportionate' to the offense committed." One begins to wonder how a court can compare a property (usually of monetary value) penalty or 'taking', to the offense committed (which penalized with physical confinement). Noteworth here is the Fifth Amendments prohibition: "... nor shall private property be taken for "public use' without just compensation."). While "Halper is useful in understanding the history of "Austin" and "Kurth Ranch"; it is "Austin" and "Kurth Ranch" that control, not "Halper".

Given the "Ursery" case; and its controlling precedent in the Sixth Circuit; both state and federal courts in the State of Michigan, are now compelled to follow "Usery". It is likely the attorney in the "Hellis" case will seek application for leave to appeal to the Michigan Supreme Court, based upon the "Usery" case. If the Michigan Supreme Court affirms "Hellis", and does not overrule "Hellis", by adopting the Sixth Circuit's "Usery" case; then criminal defendants in the State of Michigan, seeking to invoke the double Jeopardy/excessive fines clause, as a defense, can effectively 'by-pass' the otherwise 'exhaustion of state remedies' requirement, and go straight into the U.S. District Court with a federal habeas corpus, under 28 U.S.C. S2254; arguing "futility" of exhaustion in the state courts. In any event, if the state courts, refuse to follow the Sixth Circuit Court of Appeals "Usery" standard; any court that does so, will itself be in direct violation of the Supremacy Clause of the U.S. Constitution; as well as the Fourtenth Amendment.

I have noted that attorney's in Michigan are not focusing on the term 'solely' as used in the "Austin" case. Under "Austin", the prosecution must 'prove' the forfeiture (whatever item of property was forfeited), was 'solely' used for a remdial purpose. Additionally, attorney's need to start putting the prosecutor to the burden of proving, with written documentation, exactly where the seized/forfeited assets went; and, exactly how much the cost of arrest and prosecution was. So far, it appears the judges who have weighed the "proportionality" of the property penalty to the offense committed, are taking for granted that the governments loss's exceeded the value of the property taken. All in all, the"proportionality" test used in "Hellis" constitutes a wrongful interpretation and application of "Austin" and "Kurth Ranch".

It is also noteworthy, that the "Hellis" case, despite its own defects, did not foreclose relief to other defendants, given different facts of the case. As noted in "Hellis", that case was decided on the facts of the case. Specifically, the court held:

"As defendant's criminal punishments did not include fine
components, which at least with respect to the marijuana
convictions were otherwise authorized, and in consideration
of the costs of investigation and prosecution, the forfeiture
imposed is proportionate to the criminal sanctions and does
not constitute, on the facts of this case, an additional
or successive punishment in violation of the double jeopardy
principles. On the facts of this case, the forfeiture is not
so punitive in either purpose of effect as to negate the
legislative intention that such forfeiture be regarded
as remedial or civil and not punitive." In the "Hellis" case,
the defendant's out-of-pocket loss was approx. $36,000, and the
court contrasted that loss with the 'applicable criminal
penalties, "which in light of defendant's 'second' offender status,
doubled the applicable criminal penalties, MCL 333.7413(2); MSA
14.15(7413)(2), involved up to 8 years imprisonment and a $4,000
fine or both for each possession w/intent to deliver marijuana
conviction, a possible aggregate fine of $24,000. The cocaine
offense was punishable by imprisonment 'only'; however, the court
noted that a lessor cocaine offense was punishable by up to a
$25,000 fine, MCL 333.7401(2)(a)(iv).

In summary, the July 13, 1995, Sixth Circuit decision in "U.S." v "Ursery", control in the State of Michigan, over both federal and state tribunals; and "Hellis" has effectively therefore, become overrulled and/or moot. Thanks to the reasoning of the 9th Circuit, prisoners in the state of Michigan now have a chance regain their freedom; and to ultimately prevail against a government mentality that is destructive, rather than constructive in its never ending, self-serving, so-called war-on-drugs, and the governments capitalism thereunder. The government in its haste and greed plunder the booty... must now walk the gang plank, and forfeit criminal convictions to Davy Jones locker. It is time the Government be punished.

ADDENDUM

"United States" v "Ursery" (CA6), No. 94-1127 (July 13, 1995); 9 Mich. L.W. 1361, 1370, Vol. p, #37 (July 24, 1995); L.W. No. 20859 - 24 pgs. Judge's Jones, J.; joined be Contie, S.J. (Milburn, J. dessenting). On appeal from the U.S. District Court, for the Eastern District of Michigan.

"Where defendant was convicted of a drug offense after suffering a civil forfeiture of property related to the drug offense, the conviction violated defendant's double jeopardy rights."

"We find that the forfeiture and conviction are punishment for the same offense because the forfeiture necessarily requires proof of the criminal offense... The criminal offense is in essence subsumed by the forfeiture statute, and thus does not require an element of proof that is not required be the forfeiture action."