Law enforcement officials have increasingly used civil forfeiture actions as a tool to pursue both the assets and property of drug traffickers. It seems only logical that the fruits of illegal conduct, such as unlawful drug proceeds or property used to facilitate drug transactions, should be forfeitable. The United States has spent billions of dollars to curb the narcotics trade since commencing its "war on drugs," and civil forfeiture serves to disarm drug traffickers and "eliminate profit as an incentive for crime."1 The proceeds of civil forfeiture are typically funneled to law enforcement officials to bolster their efforts and compensate their vast expenses.2
Civil forfeiture actions appear to benefit society as a whole, but they have opened a Pandora’s box of legal issues. Recently, some defendants have successfully argued that civil forfeiture actions constitute double jeopardy under the Fifth Amendment of the Constitution. These cases have sent a shockwave through the legal community and have created a split in decisions among the United States Circuit Courts of Appeal.3 Many observers believe that the Supreme Court will grant certiorari in the near future and speak to this issue.4
The double jeopardy clause provides that no "person be subject for the same offense to be twice put in jeopardy of life or limb."5 Essentially, this language protects criminal defendants from multiple prosecutions or multiple punishments. The issue surrounding civil forfeiture statutes concerns the latter.
Defendants contend that the Constitution has been trounced upon in an overzealous effort to fight the war on drugs. Civil forfeiture actions are arguably second punishments based on the same illegal conduct as the underlying criminal prosecution. Defendants accurately observe that civil forfeiture actions are brought in a civil forum, separate and apart from their criminal indictment. Thus, civil forfeiture actions are generally subjected to a lower standard of proof, heard by different judges, and require the defendant to unnecessarily marshal his resources for a second defense.
Most people have heard about an individual’s property being forfeited for its involvement with unlawful drug transactions.6 For example, individuals who deal drugs at their home, use their car phone to receive an order, and use the profits of their conduct to buy a yacht and corporate stock, risk this property to civil forfeiture. Interestingly, even if an individual bought a home with legitimate money and used the property only on one occasion to meet with his or her conspirators, this property might still be forfeited because it was used to "facilitate" the drug trade. Such examples are useful to illustrate the context through which civil forfeitures can result.
This essay focuses on whether ancillary civil forfeiture proceedings, particularly at the federal level, run astray of the long-standing principle against multiple punishment founded for in the Fifth Amendment’s double jeopardy clause. It first explains the features of civil forfeiture actions and the prominent Supreme Court cases concerning this issue. Second, it considers whether a civil forfeiture proceeding constitutes a "separate proceeding" within the meaning of double jeopardy. Third, it considers to what extent the forfeiture of ill-gotten gains and property used to facilitate illegal conduct constitute "punishment" implicating double jeopardy. Finally, the essay concludes that civil forfeiture actions do not violate the double jeopardy clause per se and are a valuable tool in protecting the general welfare of society.
A Historical Perspective
The Inception of Civil Forfeiture. Although three types of forfeiture traditionally existed under English law, when forfeiture actions were ultimately adopted in the United States, they were modeled after just one variety of the English practices. Statutory forfeiture, as it was called England, applied to property that was in violation of the customs or revenue laws. This type of forfeiture could result in rather draconian forfeitures. For example, a ship owner could forfeit his entire ship for negligently selecting his crew.7
Statutory forfeiture existed in the United States both before and after the passage of the Constitution. It is a method of in rem forfeiture, which considers the property itself guilty irrespective of the owner’s culpability.8 In rem actions are taken directly against the property, unlike in personal actions that are instituted against persons or individuals.9
Forfeiture statutes are now used primarily as a tool to fight crime, especially the war on drugs. There are two basic types of forfeiture statutes relevant to this issue: criminal and civil. Until recently, prosecutors generally used the procedural advantages provided by civil statutes. However, double jeopardy concerns have forced many prosecutors to use criminal forfeiture statues, rather than civil. Criminal forfeiture actions are less advantageous for numerous reasons. First, they generally require the property at issue to be subject to a high burden of proof, beyond a reasonable doubt. Second, criminal forfeiture actions can prove impractical because they must be brought in the same indictment as the underlying criminal conduct. This can prove problematic when illegal property is discovered after an individual has been indicted for a criminal act.
Procedurally, the government may seize an asset when there is probable cause to show forfeiture. If the government fails to prove probable cause, the asset must be returned. A forfeiture on summary judgment is appropriate only when the government establishes probable cause, and the claimant fails to rebut the government’s proof. Once the government demonstrates probable cause, the claimant must prove that property is not subject to forfeiture. When the claimant fails to prove by a preponderance of the evidence that the property is not subject to forfeiture, the government’s light burden of showing only probable cause alone will support a judgment of forfeiture."10 "In contrast to the government’s light burden of showing only probable cause to justify seizure, the claimant challenging forfeiture must make his showing by a preponderance of the evidence."11
This essay is concerned primarily with the federal civil forfeiture statutes that involve drug assets. The best known civil forfeiture statute is 21 U.S.C. §881(a).12 Nearly all of the cases discussed here used 21 U.S.C. §§881(a)(4), (a)(6), and (a)(7) as the authority for forfeiture. Sections 881(a)(4), (6), and (7), control the seizure of non-contraband property.13
Section 881(a)(4) encompasses the forfeiture of "all conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport." Section 811(a)(6) provides for the forfeiture of "all moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter." Finally, section 881(a)(7) includes "all moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter." These three statutes are generally distinguished as either the "proceeds," or the "instrumentalitys," "facilitating" transactions or real property.
While it is unnecessary to be an expert in civil forfeiture to understand this issue, this short section should prove worthwhile. With this brief study of civil forfeiture complete, this essay can begin to explore the application of double jeopardy principles to such statutes.
Overview of Supreme Court Cases Concerning Double Jeopardy. A brief review of the seminal Supreme Court cases relevant to this issue is useful when one analyzes how and why the circuit courts of appeals have split in their rulings. To understand these cases, one must know the elements for a viable double jeopardy claim. The double jeopardy clause protects defendants against multiple punishments for the same offense. A double jeopardy claim requires a defendant to prove that he was subject to: (1) separate proceedings (2) that constitute punishment within the meaning of the Fifth Amendment. If the defendant is unable to prove either of these prongs, the government will prevail.
1. A Civil Penalty May Constitute Punishment: United States v. Halper.14
Most double jeopardy cases concern defendants who are subject to two criminal prosecutions.15 However, civil forfeiture concerns the issue of multiple punishments arising out of two proceedings, one criminal and one civil. Halper held that "the Government may not criminally prosecute a defendant, impose a criminal penalty upon him, and then bring a separate civil action based on the same conduct and receive a judgment that is not rationally related to the goal of making the Government whole."16
Halper was convicted of submitting sixty-five false claims to the government for Medicare reimbursement and was sentenced to imprisonment for ten years and fined $5,000. The government then brought a separate action under the civil False Claims Act, which permits a civil penalty of $2,000 for each violation by an individual. Thus, Halper was subject to a separate civil penalty of more than $130,000.17
It was undisputed that there were two separate proceedings in this case. Thus, the Supreme Court only considered under what circumstances a civil penalty constitutes "punishment" as encompassed by the double jeopardy clause. The government contended that civil actions should not be considered punishment because they are "civil" in nature. However, the Court found that punishment can arise from either civil or criminal penalties. A civil penalty is not considered punishment where the sanction serves a solely remedial purpose. Where the civil sanction is characterized as only a deterrent or retribution, it is considered punishment within the meaning of double jeopardy.18
The Court concluded that Halper’s civil action should be barred on grounds of double jeopardy. The Court reasoned that a fine of $130,000 was wholly disproportionate to the government’s actual damages and expenses in Halper’s matter. "The relevant teaching of these cases is that the Government is entitled to rough remedial justice . . . without being deemed to have imposed a second punishment for the purpose of double jeopardy analysis."19 Clearly, Halper’s civil penalty crossed this line of proportionality. However, the Court was careful to limit its decision by observing that "what we announce is a rule for the rare case, the case such as the one before us, where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he caused."20
2. Whether Civil Forfeiture under 21 U.S.C. §881(a)(4) and (a)(7) is Per Se Punishment: Austin v. United States.21
Interestingly, the Supreme Court’s decision in Austin did not consider the constitutionality of the double jeopardy clause. Rather, the Court held that civil forfeiture under 21 U.S.C. §§881(a)(4) and (a)(7) were "punishment" violating the Eighth Amendment’s excessive fines clause. However, some circuit courts have loosely applied the Austin holding to try to implicate double jeopardy punishment under civil forfeiture statutes on a per se basis.22 This interpretation fails to recognize footnote 4 of the Austin opinion, which specifically excludes double jeopardy clause from its ultimate holding.
The applicability of the Austin decision to civil forfeiture actions challenging double jeopardy is of paramount importance. This issue will be revisited later when recent circuit court decisions on double jeopardy purporting to accept or reject the Austin decision are reviewed.
3. A Drug Tax Constitutes Successive Punishments for the Same Offense: Department of Revenue of Montana v. Kurth Ranch.23
Kurth Ranch, like Austin, did not directly address civil forfeiture in the context of punishment and the double jeopardy clause. Rather, it dealt with a state tax imposed on the possession and storage of narcotics. The Court held that such a tax violated the double jeopardy clause when imposed after a defendant’s criminal conviction. This holding may be indicative of the Court’s unwillingness to loosely construe or expand double jeopardy.24
Richard Kurth was found guilty of possessing marijuana. In addition to his criminal conviction, the county attorney initiated an action using a new tax on dangerous drugs that attempted to collect almost $900,000 in taxes on the marijuana. Ultimately, the Court found that the drug tax was not the type of remedial sanction that can occur after the punishment of a criminal offense. Instead, the tax was found to be a second punishment as contemplated within the meaning of the double jeopardy clause.
While Kurth Ranch may signal the Court’s willingness to provide defendants with double jeopardy protections from civil forfeiture penalties, such an analogy may be inappropriate. The facts of Kurth Ranch note that the case actually involved three proceedings—a criminal prosecution, the drug tax proceeding, and a civil forfeiture action.25 These three proceedings appear to implicate "triple jeopardy," rather than double. However, the Court failed to raise the civil forfeiture statute when completing its double jeopardy analysis. Thus, this case could conceivably stand for the Court’s tacit approval of civil forfeiture proceeding. The Court was considering a double jeopardy issue and had every opportunity to raise the civil forfeiture suit’s viability, yet failed to do so.
Additionally, the Court recognized that taxation issues pose distinct questions that may not be applicable on a broad scale basis. "[T]ax statutes serve a purpose quite different from civil penalties, and Halper’s method of determining whether the exaction was remedial or punitive ‘simply does not work in the case of a tax statute.’"26 Moreover, the Court noted that this particular tax had "unusual features."27
While Halper, Austin, and Kurth Ranch do not dispositively answer how the circuits should resolve their current conflicts, they may provide some insight as to how the Supreme Court will respond to these questions in the near future. This brief overview should prove fruitful in examining the foregoing issues that have manifested themselves through recent circuit court decisions.
The First Prong: Whether a Civil Forfeiture Action Constitutes a Separate Proceeding
Initially it must be considered whether a civil forfeiture action constitutes a separate proceeding, implicating double jeopardy. The Supreme Court’s decision in Halper did not "prevent the Government from seeking and obtaining both the full civil penalty and the full range of statutorily authorized criminal penalties in the same proceeding."28 Essential to this inquiry is the interpretation of "same proceeding." If a civil forfeiture proceeding and a criminal prosecution constitute a single proceeding, then a double jeopardy analysis is obviated.
One Single Continuous Proceeding. A civil forfeiture action on its face appears to be a separate proceeding. A civil forfeiture case is not filed with an initial criminal indictment, is assigned a separate docket number in a civil forum, and is generally heard by a different judge. Nevertheless, some circuits have held that a civil forfeiture matter and a criminal prosecution can constitute one single proceeding and does not trigger double jeopardy.29
In United States v. Millan,30 the Second Circuit held that where civil forfeiture and criminal actions are part of a coordinated effort to end a narcotics conspiracy, they can constitute one single proceeding. The government filed an indictment against the defendant on August 14, 1991, for his participation in a heroin distribution conspiracy. On December 26, 1991, the government filed a civil forfeiture proceeding, pursuant to 21 U.S.C. §881, against properties and bank accounts later claimed by the defendant. After the defendant resolved his civil forfeiture suit he moved to dismiss the underlying criminal indictment "as prior punishment for the same crimes."31
The Second Circuit focused on the timing of the civil seizures and criminal arrest. "In the instant case warrants for the civil seizures and criminal arrests were issued on the same day, by the same judge, based on the same affidavit by the DEA agent."32 Moreover, the defendants were well aware of the criminal charges against them when they entered into the stipulated agreement concerning the civil forfeiture suit. While the Second Circuit recognized that the civil and criminal actions were filed separately with different docket numbers, this factor alone was not dispositive in determining whether the government had employed a single proceeding.33
The court was cognizant of Halper’s concern that the government might use a civil forfeiture action abusively to exact a second punishment when dissatisfied with the punishment levied in the first case. However, the record provided "ample indication that it was clear to all parties that the government intended to pursue all available civil and criminal remedies, regardless of the individual outcomes of these claims."34
The Eleventh Circuit has also adopted the single coordinated prosecution theory in authorizing the government to seek the full rang of remedies through criminal and civil forfeiture suites. In United States v. One Single Family Residence,35 the defendants were indicted on March 26, 1991, for their involvement in illegal gambling. Additionally, the government brought an in rem civil forfeiture action against the defendants in an effort to seize the home used for gambling.36 It was argued that the forfeiture of the house violated the double jeopardy clause because they had been previously punished through a criminal conviction based on the same illegal conduct.37
The court held that this case fell within the contours of a single coordinated prosecution. "As in Millan, . . . there is no problem here that the government acted abusively by seeking a second punishment because of dissatisfaction with the punishment levied in the first action."38 Additionally, the court observed that the legislature may approve cumulative punishment for the same conduct under two different statues.
Clearly, cases such as Millan and Single Family Residence have assisted the government’s war on drugs. They allow the government to bring a civil forfeiture action without implication of double jeopardy. Certain factors, such as the timing of the criminal and civil suits, will be relevant in determining whether the forfeiture matter is part of a single coordinated prosecution. A court must consider these factors by engaging in a fact-intensive review on a case-by-case basis.
Most important, this rationale recognizes the practical difficulties of excluding civil forfeiture actions on a per se basis. It is not always possible for the government to bring a forfeiture suit on the same day as a criminal indictment because certain assets and property may not surface until later. Furthermore, forfeiture reduces the incentive for committing criminal acts for profit.
Separate Proceedings. When the Ninth Circuit ruled that civil forfeiture and criminal prosecutions occur as separate proceedings triggering a double jeopardy analysis, shockwaves went through federal prosecutors’ offices.39 As a result, civil forfeiture will almost always be unconstitutional (at least in the Ninth Circuit) when brought in conjunction with a criminal matter. Thus, federal prosecutors in the Ninth Circuit will have to limit their use of civil forfeiture and instead rely on criminal forfeiture statutes. Unlike civil statutes, criminal forfeiture suits must be brought in the initial criminal indictment. While this may alleviate the separate proceedings issue, it may be prohibitive for federal prosecutors.
In United States v. $405,089.23 U.S. Currency, the Ninth Circuit held that civil forfeiture and criminal prosecutions constitute "separate proceedings," and that civil forfeiture is punishment under 21 U.S.C. §881(a)(6).
Factually, the defendants were accused of engaging in the large-scale production of methamphetamine. Five days after the grand jury issued an indictment against the defendants, the government instituted a corresponding civil forfeiture suit under 21 U.S.C §881(a)(6) and 18 U.S.C. §981 (a)(1)(A). Thus, the government sought the forfeiture of these assets as the illegal proceeds of narcotics transactions or due to money laundering violations. On appeal, the defendants, who proceeded pro se, contended that the forfeiture violated the double jeopardy clause. As a result of the Ninth Circuit’s decision, the defendants, now inmates in a federal prison, were able to keep over $1 million in cash, eleven automobiles, 138 silver bars, a helicopter, airplane, and shrimp boat.40 Thus, convicted drug dealers were permitted to keep the spoils of their large-scale drug manufacturing operation. Unfortunately, interpretation of the Constitution will not always provide equitable results.
The Ninth Circuit’s opinion was written by Judge Reinhardt, who is considered one of the most liberal federal judges and is no friend of forfeiture. The opinion explicitly rejected the theory of a single coordinated proceeding as defying "common sense." The court stated:
We fail to see how two separate actions, one civil and one criminal, instituted at different times, tried at different times before different factfinders, presided over by different district judges, and resolved by separate judgments, constitute the same "proceeding." In ordinary legal parlance, such actions are often characterized as "parallel proceedings," but not as the "same proceeding." A forfeiture case and a criminal prosecution would constitute the same proceeding only if they were brought in the same indictment and tried at the same time.41
The court was particularly concerned by the significant advantage the government obtained through a civil forfeiture action. For example, if the government obtained a conviction in the criminal prosecution, that conviction could be used to obtain summary judgment in the civil suit. However, if the government lost or was dissatisfied with the criminal result, then the civil forfeiture action could be used as a method to impose a second penalty for the same conduct.42 This logic, premised on fairness, bolstered the Ninth Circuit’s ultimate decision in the case. It was a tremendous result, which furthered the rights of criminal defendants.
It is difficult to reconcile Ninth Circuit’s position on this issue with respect to the single coordinated proceeding theory. These two lines of logic clash fundamentally in how they interpret the Fifth Amendment’s meaning of double jeopardy. This is clearly an area of law that merits the attention of the Supreme Court.
Interestingly, the Sixth Circuit appears unable to reconcile which of these two theories is most appropriate to adopt. In United States v. Ursery,43 the Sixth Circuit waffles in its discussion of both theories without ever fully endorsing either rationale. The court rather confusingly states:
The Ninth Circuit completely rejects the Second and Eleventh Circuit’s efforts to consider the parallel proceedings as one prosecution. . . . While we acknowledge the Ninth Circuit’s approach, we also find it unnecessary to fully adopt the Ninth Circuit’s view in this case. It is merely our view that . . . the facts in this case fail to reveal such a single, coordinated proceeding. . . . Similar to the Ninth Circuit, we find that applying the label of "single coordinated prosecution" to the facts of this case simply goes too far.44
Cases such as Ursery reflect that the ambiguities among the circuits must be resolved. The Constitution should be interpreted in a fashion that provides federal prosecutors and criminal defendants with some measure of certainty as to how these cases will play out. To do otherwise is a manifest injustice to all parties concerned.
The Second Prong: Whether Civil Forfeiture Constitutes Punishment
The second prong of the double jeopardy analysis considers whether civil forfeiture constitutes "punishment." This determination, as set forth in Halper, considers whether the essential purpose of the penalty is remedial in nature or serves primarily as a deterrent. While theoretically this distinction could be difficult to draw, Halper’s punishment categorization was intended for the "rare case."45
Illegal Proceeds. United States v. Tilley,46 a recent Fifth Circuit decision, aptly demonstrates the punishment analysis in a case involving the forfeiture of illegal drug proceeds pursuant to 21 U.S.C. §881(a)(6). In Tilley, the defendants agreed to forfeit considerable amounts of cash and property in their civil suit worth approximately $650,000, and then argued that their criminal prosecution constituted multiple punishment under double jeopardy.47
The Fifth Circuit observed early in its opinion "that the sanction in Halper did not involve the proceeds from the crimes charged and the fact that the property forfeited in today’s case constitutes unlawful proceeds is crucial to our analysis."48 It distinguished the Halper scenario, which involved a large penalty unrelated in amount to the government’s actual costs. By contrast, Tilley involved ill-gotten drug money and property.
"[T]he forfeiture of drug proceeds will always be directly proportional [to the] amount of drugs sold."49 The court likened this logic to a robber required to forfeit the money he has stolen through a bank heist. Property that was not obtained through lawful activities should be subject to forfeiture, since the criminal never gained any lawful property right.
Additionally, the court supported the remedial nature of forfeiture by noting that the spoils of forfeiture were insubstantial compared to the exorbitant costs of the war on drugs. The court specifically observed the following:
Various sources estimate that illegal drug sales produce approximately $80 to $100 billion per year while exacting $60 to $120 billion per year in costs to the government and society. . . . Clearly, the above overlapping estimates of proceeds and resulting costs are not "overwhelmingly disproportionate" on a national level and, we believe, indicate a rough proportionality between the $650,000 sanction and the resulting governmental societal costs in this case.50
Interestingly, the Fifth Circuit decided that the Supreme Court’s decision in Austin was inapplicable to its holding. Austin held that 21 U.S.C. §881(a)(4) and (a)(7) are punishment in an Excessive Fines context. However, it is clearly inapplicable to a section 881(a)(6) action that only considers illegal proceeds.51
Property That Facilitates Illegal Activity. In United States v. Cullen,52 the Fourth Circuit considered whether forfeited property used to facilitate unlawful activity should be considered punitive in nature. Dr. Cullen was indicted for distributing controlled substances through fraudulent prescriptions and conspiring to defraud the Department of Labor’s Black Lung Program. The government also brought a separate proceeding pursuant to 21 U.S.C §881(a)(7) alleging that Dr. Cullen used his medical building to facilitate his distribution of drugs. The court held that double jeopardy placed no limitations on the government’s civil forfeiture proceeding against the edifice.53
Using Halper’s punishment analysis, the Fourth Circuit found the forfeiture to "plainly serve . . . a remedial purpose."54 By removing the facilitator of illegal activity, forfeiture shields the community from the risk of continued drug distribution. In holding that the forfeiture of the property was remedial and did not constitute double jeopardy, the court found that the public danger posed by the building was more important than its monetary value.
Is Civil Forfeiture Per Se Punishment? As noted previously, United States v. $405,089.23 U.S. Currency has had a dramatic effect on how separate proceedings are construed. It has had a similarly profound effect on the interpretation of punishment. Essentially, the Ninth Circuit adopted a per se rule that civil forfeiture penalties constitute punishment with the meaning of double jeopardy. The court concluded that "the forfeiture statutes at issue . . .do not serve solely a remedial purpose."55
The Ninth Circuit reached its conclusion by applying the Supreme Court’s decision in Austin to a double jeopardy context. As you may recall from this essay’s previous discussion, Austin held that civil forfeiture statutes 21 U.S.C. § 881(a)(4) and (a)(7) constitute punishment within the meaning of the Excessive Fines clause. "[T]he Austin Court explicitly refused to apply . . . a case-by-case approach to determining whether a forfeiture constitutes ‘punishment.’"56
Problematic in the Ninth Circuit’s analysis is its broad reading of Austin in two critical respects. First, Austin was explicitly limited to an excessive fines context, not double jeopardy. Rather than use the case-by-case analysis set forth by the Supreme Court in Halper, the Ninth Circuit ignored controlling precedent in an effort to reach their desired result. The Ninth Circuit found that "in light of the decision in Austin, . . . the conclusion is inescapable."57 However, the Austin decision was not intended to apply to double jeopardy and did not overrule Halper.
Second, the Austin decision only determined that 21 U.S.C. §881 (a)(4) and (a)(7) were punishment; however, $405,089.23 considered whether illegal proceeds pursuant to 21 U.S.C. §881(a)(6) were punishment. In Austin, the Court’s opinion excluded section 881(a)(6) from its analysis, although it clearly could have been included if the Court believed that illegal proceeds were properly applicable. Indeed, the Ninth Circuit applied Austin to a statute that was never contemplated by the Court in that decision. Again, this rationale appears to ignore controlling precedent and instead pursues an outcome-oriented result.
While the Ninth Circuit’s analysis of "punishment" is suspect, ultimately the ambiguities among the circuits must be resolved by the Supreme Court. The Court must revisit its analysis in Halper and determine conclusively whether civil forfeiture statutes 21 U.S.C. §881(a)(4), (a)(6), and (a)(7) constitute punishment within the meaning of the double jeopardy clause. While Austin appears inapplicable to this issue, the Court could narrowly construe the double jeopardy clause in a similar fashion. However, for the reasons set forth below, the Supreme Court will likely reject the Ninth Circuit’s logic in favor of a modified Halper approach.
Conclusion
Given the current ambiguities and state of flux in the law, it is difficult to conclude this topic by predicting potential outcomes. Undoubtedly, the constitutionality of civil forfeiture statutes with respect to double jeopardy is an issue ripe for Supreme Court review. A resolution to this issue will remove the uncertainties that currently face federal prosecutors and defendants involved in criminal and civil proceedings.
Clearly, civil forfeiture statutes are valuable to society as a whole. They serve to reduce any profit incentive for individuals to engage in criminal acts. They also help to supplement the many costs incurred fighting the nation’s war on drugs. Unfortunately, the flexibility of the Constitution is not premised on strong public policy arguments.
For a viable double jeopardy appeal, a defendant must prove that the criminal and civil suits occurred in separate proceedings, and that the civil penalty constitutes punishment. At present, there is a clear split among the circuits as to whether a civil forfeiture action and criminal prosecution constitute one single proceeding. Federal prosecutors would surely favor the Court’s acceptance of the single prosecutorial effort theory. This would permit the circuits to review cases on an individual basis to ensure that prosecutors have not abusively sought a second proceeding. This theory can be contrasted with the Ninth Circuit’s "common sense" approach that considers civil and criminal suits as categorically separate.
If review is granted, the Supreme Court would likely adopt the single prosecutorial effort rationale for the first prong of the double jeopardy analysis. In Halper, the Court was careful to recognize the government’s ability to seek the full remedy available so long as it was sought in the same proceeding. This theory is bolstered by the congressional intent of forfeiture statutes, which contemplate the use of civil suits in conjunction with criminal prosecutions. "If you trace through some of the history of forfeiture legislation, . . . it does not appear that Congress created civil forfeitures as an exclusive vehicle for the government to pursue."58 Thus, the Supreme Court would likely reject the Ninth Circuit’s rationale, which favors labeling these actions as separate per se.
The second prong of the double jeopardy analysis boils down to whether a civil forfeiture constitutes punishment within the meaning of the Fifth Amendment. The division among the circuits shows the indecisiveness over which Supreme Court cases should be applied Halper or Austin. In Halper, the Supreme Court determined that a case-by-case analysis was necessary to determine whether civil forfeiture was punitive. This depends on whether the sanction was remedial in nature or served as a deterrent.59 By contrast, the Ninth Circuit has adopted Austin’s tenets. This approach considers civil forfeiture statutes as punishment on a per se basis.60
The Supreme Court upon reviewing the issue of punishment should reaffirm its approach from Halper. As previously discussed, Austin’s holding was limited to an excessive fines context, not the double jeopardy clause. Perhaps most dispositive on this issue is that the Halper decision explicitly states that a punishment determination is only appropriate in the "rare case." Obviously, adopting the Austin case’s per se punishment analysis would be a vast departure from the rare case scenario envisioned by the Court. Thus, the Supreme Court should limit Austin to an excessive fines context and continue applying Halper to a double jeopardy punishment analysis.
NOTES
1. Jon E. Gordon, Prosecutors Who Seize Too Much and the Theories They Love: Money Laundering, Facilitation, and Forfeiture, 44 Duke Law J 744, 744 (1995).
2. Civil forfeitures have generated enormous revenues. For example, the United States Attorney’s Office in the Eastern District of New York seized over $37,000,000 from civil forfeitures during an eight-month period in 1989. This amount of money was approximately four times the expense required to fund that office during that same eight-month period. Helen M. Kemp, Presumed Guilty: When the War on Drugs Becomes a War on the Constitution, 14 Quin Law Rev 273, 275 (1994).
3. See United States v Millan, 2 F3d 17 (2d Cir 1993) (holding that a civil forfeiture suit and criminal prosecution can constitute a single proceeding not implicating double jeopardy). But see United States v $405,089.23 U.S. Currency, 33 F3d 1210 (9th Cir 1994) (finding that civil forfeiture and criminal suits will always trigger a double jeopardy analysis).
4. See Court Strikes Forfeiture as Double Jeopardy, D.O.J. Alert, Oct. 3, 1994, at 1 ("the Supreme Court is more likely to rule on the issue because there is now a conflict in the circuits"); James Podgers, The Second Time Around, ABA Journal, Oct. 1995, at 52 ("it is likely that one of the cases will find its way to the Supreme Court").
5. US Const, Amend V.
6. Gary M. Maveal, Criminalizing Civil Forfeitures, 74 Mich B J 658, 658 (1995).
7. Gordon, Prosecutors Who Seize Too Much and the Theories They Love: Money Laundering, Facilitation, and Forfeiture, 44 Duke Law J 744, 746 (1995).
8. Id.
9. Black’s Law Dictionary 713 (5th ed., 1989).
10. United States v All Assets and Equip. of West Side Bldg. Corp., 58 F3d 1181 (7th Cir 1995).
11. Gordon, Prosecutors Who Seize Too Much and the Theories They Love: Money Laundering, Facilitation, and Forfeiture, 44 Duke Law J 744, 754 (1995).
12. Maveal, Criminalizing Civil Forfeitures, 74 Mich B J 658, 659-60 (1995).
13. "Contraband" refers to any property that it is illegal to possess or produce. Black’s Law Dictionary 291.
14. United States v Halper, 490 US 435 (1989).
15. Bradley E. Kotler et al., Double Jeopardy, 82 Geo L J 962 (1994).
16. United States v Halper, 490 US 435, 451 (1989).
17. Id. at 438-439. The government’s actual loss as a result of Halper’s false claims was $585.
18. Id. at 441-49.
19. Id. at 445-46.
20. Id. at 449.
21. Austin v United States, 113 SCt 2801 (1993).
22. United States v $405,089.23 U.S. Currency, 33 F3d 1210, 1219 (9th Cir 1994) (holding that in light of the decision in Austin civil forfeiture constitutes "punishment," which triggers the protections of the double jeopardy clause).
23. Department of Revenue of Montana v Kurth Ranch, 114 SCt 1937 (1994).
24. Id. at 1948.
25. Id. at 1942.
26. Id. at 1948 (quoting Chief Justice Rehnquist’s dissent at 1949).
27. Id. at 1947. For example, the Court noted that the drug tax was conditioned on the commission of a crime that reflected a penal and prohibitory intent. "The . . . thing to bear in mind in Kurth Ranch is that the tax in that case was not your run-of-the-mill tax. It was a highly unusual tax and given the facts . . . it is frankly not surprising that the Court deemed that act to be a punitive one" (Miriam A. Krinsky, A Legal Earthquake: The Aftershocks of United States V. $405,089.23 in U.S. Currency, 21 J Legis 187 [1995]).
28. United States v Halper, 490 US 435, 450 (1989) (emphasis added).
29. United States v Millan, 2 F3d 17 (2d Cir 1993); United States v One Single Family Residence, 13 F3d 1493 (11th Cir 1994).
30. United States v Millan, 2 F3d 17 (2d Cir 1993).
31. Id. at 17-19.
32. Id. at 20.
33. Id. at 20-21.
34. Id.
35. United States v One Single Family Residence, 13 F3d 1493 (11th Cir 1994).
36. Id. at 1494-95.
37. Id. at 1499.
38. Id.
39. United States v $405,089.23 U.S. Currency, 33 F3d 1210 (9th Cir 1994). See Court Strikes Forfeiture as Double Jeopardy, D.O.J. Alert, Oct. 3, 1994, at 1.
40. United States v $405,089.23 U.S. Currency, 33 F3d 1210. 1214 (9th Cir 1994).
41. Id. at 1216.
42. Id. at 1217.
43. United States v Ursery, 59 F3d 568 (6th Cir 1995).
44. Id. at 575.
45. United States v Halper, 490 US 435, 448-49 (1989).
46. United States v Tilley, 18 F3d 295 (5th Cir 1994).
47. Id.
48. Id. at 298.
49. It. at 300.
50. Id. at 299.
51. Id. at 299-300.
52. United States v Cullen, 979 F2d 992 (4th Cir 1992).
53. Id. at 993-94.
54. Id. at 995.
55. United States v $405,089.23 U.S. Currency, 33 F3d 1210, 1222. (9th Cir 1994).
56. Id. at 1220.
57. Id. at 1219.
58. Krinsky, A Legal Earthquake: The Aftershocks of United States v $405,089.23 in U.S. Currency, 21 J Legis 187 (1995).
59. United States v Halper, 490 US 435, 448-49 (1989).
60. Austin v United States, 113 SCt 2801, 2812 (1993).