OCTOBER TERM, 1995
Syllabus
UNITED STATES
v. URSERY
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 95-345. Argued April 17, 1996-Decided June 24,1996*
In No. 95-345, the Government instituted civil forfeiture
proceedings under 21 U. S. C. § 881 (a)(7) against respondent
Ursery's house, alleging that it had been used to facilitate
illegal drug transactions. Shortly before Ursery settled that
claim, he was indicted, and was later convicted, of manufacturing
marijuana in violation of §841(a)(I). In No. 95-346, the Government
filed a civil
in rem complaint against various property
seized from, or titled to, respondents Arlt and Wren or Arlt's
corporation, alleging that each item was subject to forfeiture
under 18 U. S. C. § 981(a)(I)(A) because it was involved in money
laundering violative of § 1956, and to forfeiture under 21 U. S. C.
§ 881(a)(6) as the proceeds of a felonious drug transaction.
Litigation of the forfeiture action was deferred while Arlt and
Wren were prosecuted on drug and moneylaundering charges under §
846 and 18 U. S. C. §§ 371 and 1956. After their convictions, the
District Court granted the Government's motion for summary judgment
in the forfeiture proceeding. The Courts of Appeals reversed
Ursery's conviction and the forfeiture judgment against Arlt and
Wren, holding that the Double Jeopardy Clause prohibits the
Government from both punishing a defendant for a criminal offense
and forfeiting his property for that same offense in a separate
civil proceeding. The courts reasoned in part that
United
States v.
Halper, 490 U. S. 435, and
Austin v.
United States, 509 U. S. 602, meant
that, as a categorical matter, civil forfeitures always constitute
"punishment" for double jeopardy purposes. This Court consolidated
the cases.
Held: In rem civil forfeitures are neither "punishment"
nor criminal for purposes of the Double Jeopardy Clause. Pp.
273-292.
(a) Congress long has authorized the Government to bring
parallel criminal actions and
in rem civil forfeiture
proceedings based upon the same underlying events, see,
e. g.,
The Palmyra, 12 Wheat. 1, 14-15, and this Court consistently
has concluded that the Double Jeopardy Clause does not apply to
such forfeitures because they do not impose punishment, see,
e.
g., Various Items of Personal Property v.
United
States,
*Together with No. 95-346,
United States v.
$405,089.23 in United States Currency et al., on certiorari
to the United States Court of Appeals for the Ninth Circuit.
268
Syllabus
282 U. S. 577,
581;
One Lot Emerald Cut Stones v.
United States, 409
U. S. 232, 235-236
(per curiam). In its most recent case,
United States v.
One Assortment of 89
Firearms, 465
U. S. 354, the Court held that a forfeiture was not barred by a
prior criminal proceeding after applying a two-part test asking,
first, whether Congress intended the particular forfeiture to be a
remedial civil sanction or a criminal penalty, and, second, whether
the forfeiture proceedings are so punitive in fact as to establish
that they may not legitimately be viewed as civil in nature,
despite any congressional intent to establish a civil remedial
mechanism. Pp.274-278.
(b) Though the 89
Firearms test was more refined,
perhaps, than the Court's
Various Items analysis, the
conclusion was the same in each case:
In rem civil
forfeiture is a remedial civil sanction, distinct from potentially
punitive
in personam civil penalties such as fines, and does
not constitute a punishment for double jeopardy purposes. See
Gore v.
United States, 357 U. S. 386, 392. The
Courts of Appeals misread
Halper, Austin, and
Department
of Revenue of Mont. v.
Kurth Ranch, 511 U. S. 767, as having
abandoned this oft-affirmed rule. None of those decisions purported
to overrule
Various Items, Emerald Cut Stones, and 89
Firearms or to replace the Court's traditional
understanding. It would have been remarkable for the Court both to
have held unconstitutional a well-established practice, and to have
overruled a long line of precedent, without having even suggested
that it was doing so. Moreover, the cases in question did not deal
with the subject of these cases:
in rem civil forfeitures
for double jeopardy purposes.
Halper involved
in
personam civil penalties under the Double Jeopardy Clause.
Kurth Ranch considered a punitive state tax imposed on
marijuana under that Clause. And
Austin dealt with civil
forfeitures under the Eighth Amendment's Excessive Fines Clause.
Pp. 278-288.
(c) The forfeitures at issue are civil proceedings under the
two-part
89 Firearms test. First, there is little doubt that
Congress intended proceedings under §§ 881 and 981 to be civil,
since those statutes' procedural enforcement mechanisms are
themselves distinctly civil in nature. See,
e. g., 89
Firearms, 465 U. S., at 363. Second, there is little
evidence, much less the "clearest proof" that the Court requires,
see,
e. g., id., at 365, suggesting that forfeiture
proceedings under those sections are so punitive in form and effect
as to render them criminal despite Congress' intent to the
contrary. These statutes are, in most significant respects,
indistinguishable from those reviewed, and held not to be punitive,
in
Various Items, Emerald Cut Stones, and 89
Firearms. That these are civil proceedings is also supported
by other factors that the Court has found persuasive, including the
considerations that (1)
in rem civil forfeiture has not
historically been regarded as punishment; (2)
269
there is no requirement in the statutes at issue that the
Government demonstrate scienter in order to establish that the
property is subject to forfeiture; (3) though both statutes may
serve a deterrent purpose, this purpose may serve civil as well as
criminal goals; and (4) the fact that both are tied to criminal
activity is insufficient in itself to render them punitive. See,
e. g., United States v.
Ward, 448 U. S. 242, 247-248,
n. 7,249. Pp.288-292.
No. 95-345,
59 F.3d
568, and No. 95-346,
33 F.3d
1210 and
56 F.3d
41, reversed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined.
KENNEDY, J., filed a concurring opinion,
post, p. 292.
SCALIA, J., filed an opinion concurring in the judgment, in which
THOMAS, J., joined,
post, p. 297. STEVENS, J., filed an
opinion concurring in the judgment in part and dissenting in part,
post, p. 297.
Michael R. Dreeben argued the cause for the United States in
both cases. With him on the briefs were Solicitor General Days,
Acting Assistant Attorney General Keeney, Miguel A. Estrada,
Kathleen A. Felton, and Joseph Douglas Wilson.
Jeffry K. Finer argued the cause for respondents in No.
95-346. With him on the briefs were
Jeffrey Steinborn, David
Michael, and
E. E. Edwards III.
Lawrence S.
Robbins argued the cause for
respondent in No. 95-345. With him on the brief were
Donald M.
Falk and
Lawrence J. Emery, by appointment
of the Court, 516 U. S. l109.t
tBriefs of
amici curiae urging reversal were filed for
the State of Connecticut et al. by
John M. Bailey, Chief
State's Attorney of Connecticut, and
Mary H. Lesser,
Assistant State's Attorney, and by the Attorneys General for their
respective jurisdictions as follows:
Jeff Sessions of
Alabama,
Bruce M. Botelho of Alaska,
Grant Woods of
Arizona,
Winston Bryant of Arkansas,
Daniel E.
Lungren of California,
Gale A. Norton of Colorado,
M.
Jane Brady of Delaware,
Robert A. Butterworth of
Florida,
Michael J. Bowers of Georgia,
Margery S.
Bronster of Hawaii,
Alan G.
Lance of Idaho,
Jim Ryan of Illinois,
Pamela
Carter of Indiana,
Tom Miller of Iowa,
Carla
J. Stovall of Kansas,
A. B. Chandler III of
Kentucky,
270
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
In separate cases, the United States Court of Appeals for the
Sixth Circuit and the United States Court of Appeals for the Ninth
Circuit held that the Double Jeopardy Clause prohibits the
Government from both punishing a defendant for a criminal offense
and forfeiting his property for that same offense in a separate
civil proceeding. We consolidated those cases for our review, and
now reverse. These civil forfeitures (and civil forfeitures
generally), we hold, do
Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine,
J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of
Massachusetts, Frank
J. Kelley of Michigan, Hubert H.
Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P.
Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa
of Nevada, Jeffrey R. Howard of New Hampshire, Deborah T. Poritz of
New Jersey, Tom Udall of New Mexico, Dennis C. Vacco of New York,
Michael F. Easley of North Carolina, Heidi Heitkamp of North
Dakota, Betty D. Montgomery of Ohio, Drew Edmondson of Oklahoma,
Theodore R. Kulongoski of Oregon, Thomas W Corbett, Jr., of
Pennsylvania, Pedro R. Pierluisi of Puerto Rico, Jeffrey B. Pine of
Rhode Island, Charles Molony Condon of South Carolina, Mark W
Barnett of South Dakota, Charles W Burson of Tennessee, Dan Morales
of Texas, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, James
S. Gilmore III of Virginia, Christine O. Gregoire of Washington,
James E. Doyle of Wisconsin, and William U. Hill of Wyoming; for
the County of San Bernardino, California, et al. by Dennis L.
Stout, Dee R. Edgeworth, Michael
J. Yraceburn, Phillip R.
Urie, and Armando G. Cuellar, Jr.; for the Cook County State's
Attorney's Office et al. by Jack O'Malley, Renee Goldfarb, and
Janet Powers Doyle; and for the Thirty-nine Counties of the State
of Washington by Norm Maleng, Barbara A. Mack, David Bruneau,
Arthur Curtis, Allen C. Nielson, Russ Hauge, Jeremy Randolf, John
Ladenburg, Jim Sweetser, James L. Nagle, and Jeffrey C.
Sullivan.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union by
Susan N. Herman, Gerard E.
Lynch, and
Steven R. Shapiro; for Americans for
Effective Law Enforcement, Inc., et al. by
Fred E. Inbau, Wayne
W Schmidt, James P. Manak, Richard M. Weintraub, and
Bernard J. Farber; for the National
Association of Criminal Defense Lawyers by
Richard J.
Troberman and
David B. Smith; and for Advocates for
Highway and Auto Safety et al. by
Henry M. Jasny.
271
not constitute "punishment" for purposes of the Double Jeopardy
Clause.
I
No. 95-345: Michigan Police found marijuana growing
adjacent to respondent Guy Ursery's house, and discovered marijuana
seeds, stems, stalks, and a grow light within the house. The United
States instituted civil forfeiture proceedings against the house,
alleging that the property was subject to forfeiture under 84 Stat.
1276, as amended, 21 U. S. C. § 881(a)(7), because it had been used
for several years to facilitate the unlawful processing and
distribution of a controlled substance. Ursery ultimately paid the
United States $13,250 to settle the forfeiture claim in full.
Shortly before the settlement was consummated, Ursery was indicted
for manufacturing marijuana, in violation of § 841(a)(1). A jury
found him guilty, and he was sentenced to 63 months in prison.
The Court of Appeals for the Sixth Circuit by a divided vote
reversed Ursery's criminal conviction, holding that the conviction
violated the Double Jeopardy Clause of the Fifth Amendment of the
United States Constitution.
59 F.3d
568 (1995). The court based its conclusion in part upon its
belief that our decisions in
United States v.
Halper,
490 U. S. 435
(1989), and
Austin v.
United States, 509 U. S. 602 (1993),
meant that any civil forfeiture under § 881(a)(7) constitutes
punishment for purposes of the Double Jeopardy Clause. Ursery, in
the court's view, had therefore been "punished" in the forfeiture
proceeding against his property, and could not be subsequently
criminally tried for violation of 21 U. S. C. § 841(a)(1).
No. 95-346: Following a jury trial, Charles Wesley Arlt
and James Wren were convicted of: conspiracy to aid and abet the
manufacture of methamphetamine, in violation of 21 U. S. C. § 846;
conspiracy to launder monetary instruments, in violation of 18 U.
S. C. § 371; and numerous counts of money laundering, in violation
of § 1956. The District Court
272
sentenced Arlt to life in prison and a 10-year term of
supervised release, and imposed a fine of $250,000. Wren was
sentenced to life imprisonment and a 5-year term of supervised
release.
Before the criminal trial had started, the United States had
filed a civil
in rem complaint against various property
seized from, or titled to, Arlt and Wren, or Payback Mines, a
corporation controlled by Arlt. The complaint alleged that each
piece of property was subject to forfeiture both under 18 U. S. C.
§ 981(a)(1)(A), which provides that "[a]ny property ... involved in
a transaction or attempted transaction in violation of" § 1956 (the
money-laundering statute) "is subject to forfeiture to the United
States"; and under 21 U. S. C. § 881(a)(6), which provides for the
forfeiture of (i) "[a]ll ... things of value furnished or intended
to be furnished by any person in exchange for" illegal drugs, (ii)
"all proceeds traceable to such an exchange," and (iii) "all
moneys, negotiable instruments, and securities used or intended to
be used to facilitate" a federal drug felony. The parties agreed to
defer litigation of the forfeiture action during the criminal
prosecution. More than a year after the conclusion of the criminal
trial, the District Court granted the Government's motion for
summary judgment in the civil forfeiture proceeding.
Arlt and Wren appealed the decision in the forfeiture action,
and the Court of Appeals for the Ninth Circuit reversed, holding
that the forfeiture violated the Double Jeopardy Clause.
33 F.3d
1210 (1994), amended
56 F.3d
41 (1995). The court's decision was based in part upon the same
view as that expressed by the Court of Appeals for the Sixth
Circuit in Ursery's case-that our decisions in
Halper,
supra, and
Austin, supra, meant that, as a categorical
matter, forfeitures under §§ 981(a)(1)(A) and 881(a)(6) always
constitute "punishment."
We granted the Government's petition for certiorari in each of
the two cases, and we now reverse. 516 U. S. 1070 (1996).
273
II
The Double Jeopardy Clause provides: "[N]or shall any person be
subject for the same offence to be twice put in jeopardy of life or
limb." U. S. Const., Arndt. 5. The Clause serves the function of
preventing both "successive punishments and ... successive
prosecutions."
United States v.
Dixon, 509 U. S. 688, 696
(1993), citing
North Carolina v.
Pearce, 395 U. S. 711 (1969). The
protection against multiple punishments prohibits the Government
from" 'punishing twice, or attempting a second time to punish
criminally for the same offense.'"
Witte v.
United
States, 515 U. S.
389, 396 (1995) (emphasis deleted), quoting
Helvering v.
Mitchell, 303
U. S. 391, 399 (1938).
In the decisions that we review, the Courts of Appeals held that
the civil forfeitures constituted "punishment," making them subject
to the prohibitions of the Double Jeopardy Clause. The Government
challenges that characterization of the forfeitures, arguing that
the courts were wrong to conclude that civil forfeitures are
punitive for double jeopardy purposes.1
1 The Government raises three other challenges to the decisions
that we review. First, focusing on the decision of the Court of
Appeals for the Sixth Circuit in No. 95-345, the Government
contends that the Double Jeopardy Clause applies only to prohibit a
punishment imposed following a "jeopardy," and that a civil
forfeiture, regardless whether it is a "punishment," is not a
"jeopardy." Thus, because Ursery had not been placed in "jeopardy"
in the civil forfeiture proceeding against his house, the Double
Jeopardy Clause was inapplicable to his criminal prosecution.
Second, the Government argues that the civil forfeiture of property
is not the same offense as a criminal prosecution, and therefore
that the double jeopardy protection against multiple punishments
for the same offense is not at issue here. Finally, the Government
argues that a civil forfeiture action that is parallel and
contemporaneous with a criminal prosecution should be deemed to
constitute a single proceeding within the meaning of the Double
Jeopardy Clause.
Because we conclude that the civil forfeitures involved in these
cases do not constitute punishment under the Double Jeopardy
Clause, see
infra, at 292, we do not address those three
arguments in this opinion.
274
A
Since the earliest years of this Nation, Congress has authorized
the Government to seek parallel
in rem civil forfeiture
actions and criminal prosecutions based upon the same underlying
events. See,
e. g., Act of July 31, 1789, ch. 5, §
12, 1 Stat. 39 (goods unloaded at night or without a permit subject
to forfeiture and persons unloading subject to criminal
prosecution); § 25,
id., at 43 (persons convicted of buying
or concealing illegally imported goods subject to both monetary
fine and
in rem forfeiture of the goods); § 34,
id.,
at 46 (imposing criminal penalty and
in rem forfeiture where
person convicted of relanding goods entitled to drawback); see also
The Palmyra, 12 Wheat. 1, 14-15 (1827) ("Many cases exist,
where there is both a forfeiture
in rem and a personal
penalty"); cf.
Calero-Toledo v.
Pearson Yacht Leasing
Co., 416 U. S. 663, 683 (1974) (discussing adoption of
forfeiture statutes by early Congresses). And, in a long line of
cases, this Court has considered the application of the Double
Jeopardy Clause to civil forfeitures, consistently concluding that
the Clause does not apply to such actions because they do not
impose punishment.
One of the first cases to consider the relationship between the
Double Jeopardy Clause and civil forfeiture was
Various Items of
Personal Property v.
United States, 282 U. S. 577 (1931). In
Various Items, the Waterloo Distilling Corporation had been
ordered to forfeit a distillery, warehouse, and denaturing plant,
on the ground that the corporation had conducted its distilling
business in violation of federal law. The Government conceded that
the corporation had been convicted of criminal violations prior to
the initiation of the forfeiture proceeding, and admitted that the
criminal conviction had been based upon "the transactions set forth
... as a basis for the forfeiture."
Id., at 579. Considering
the corporation's argument that the forfeiture action violated the
Double Jeopardy Clause, this Court unanimously held that the Clause
was inapplicable to civil forfeiture actions:
275
"[This] forfeiture proceeding ... is in rem. It is the
property which is proceeded against, and, by resort to a legal
fiction, held guilty and condemned as though it were conscious
instead of inanimate and insentient. In a criminal prosecution it
is the wrongdoer in person who is proceeded against, convicted, and
punished. The forfeiture is no part of the punishment for the
criminal offense. The provision of the Fifth Amendment to the
Constitution in respect of double jeopardy does not apply."
Id., at 581 (citations omitted; emphasis added).
In reaching its conclusion, the Court drew a sharp distinction
between
in rem civil
forfeitures and
in
personam civil
penalties such as fines: Though the
latter could, in some circumstances, be punitive, the former could
not.
Ibid. Referring to a case that was decided the same day
as
Various Items, the Court made its point absolutely
clear:
"In United States v. La Franca, [282 U. S.] 568,
we hold that, under § 5 of the Willis-Campbell Act, a civil action
to recover taxes, which in fact are penalties, is punitive in
character and barred by a prior conviction of the defendant for a
criminal offense involving the same transactions. This, however, is
not that case, but a proceeding in rem to forfeit property
used in committing an offense." Id., at 580.
Had the Court in
Various Items found that a civil
forfeiture could constitute a "punishment" under the Fifth
Amendment, its holding would have been quite remarkable. As that
Court recognized, "[a]t common law, in many cases, the right of
forfeiture did not attach until the offending person had been
convicted and the record of conviction produced."
Ibid. In
other words, at common law, not only was it the case that a
criminal conviction did not
bar a civil forfeiture, but, in
fact, the civil forfeiture could not be
instituted unless a
criminal conviction had already been obtained. Though this Court
had held that common-law rule inapplicable where
276
the right of forfeiture was "created by statute,
in rem,
cognizable on the revenue side of the exchequer,"
The Palmyra,
supra, at 14, it never had suggested that the Constitution
prohibited for statutory civil forfeiture what was
required for common-law civil forfeiture. For the
Various
Items Court to have held that the forfeiture was prohibited by
the prior criminal proceeding would have been directly contrary to
the common-law rule, and would have called into question the
constitutionality of forfeiture statutes thought constitutional for
over a century. See
United States v.
CurtissWright Export
Corp., 299 U. S.
304, 327-328 (1936) (Evidence of a longstanding legislative
practice "goes a long way in the direction of proving the presence
of unassailable ground for the constitutionality of the
practice").
Following its decision in
Various Items, the Court did
not consider another double jeopardy case involving a civil
forfeiture for 40 years. Then, in
One Lot Emerald Cut Stones
v.
United States, 409 U. S. 232 (1972)
(per curiam), the Court's brief opinion reaffirmed the rule
of
Various Items. In
Emerald Cut Stones, after having
been acquitted of smuggling jewels into the United States, the
owner of the jewels intervened in a proceeding to forfeit them as
contraband. We rejected the owner's double jeopardy challenge to
the forfeiture, holding that "[i]f for no other reason, the
forfeiture is not barred by the Double Jeopardy Clause of the Fifth
Amendment because it involves neither two criminal trials nor two
criminal punishments." 409 U. S., at 235. Noting that the
forfeiture provisions had been codified separately from parallel
criminal provisions, the Court determined that the forfeiture
clearly was "a civil sanction."
Id., at 236. The forfeitures
were not criminal punishments because they did not impose a second
in personam penalty for the criminal defendant's
wrongdoing.
In our most recent decision considering whether a civil
forfeiture constitutes punishment under the Double Jeopardy Clause,
we again affirmed the rule of
Various Items. In
277
United States v.
One Assortment of 89
Firearms, 465
U. S. 354 (1984), the owner of the defendant weapons was
acquitted of charges of dealing firearms without a license. The
Government then brought a forfeiture action against the firearms
under 18 U. S. C. § 924(d), alleging that they were used or were
intended to be used in violation of federal law.
In another unanimous decision, we held that the forfeiture was
not barred by the prior criminal proceeding. We began our analysis
by stating the rule for our decision:
"Unless the forfeiture sanction was intended as punishment, so
that the proceeding is essentially criminal in character, the
Double Jeopardy Clause is not applicable. The question, then, is
whether a § 924(d) forfeiture proceeding is intended to be, or by
its nature necessarily is, criminal and punitive, or civil and
remedial." 89 Firearms, supra, at 362 (citations
omitted).
Our inquiry proceeded in two stages. In the first stage, we
looked to Congress' intent, and concluded that "Congress designed
forfeiture under § 924(d) as a remedial civil sanction." 465 U. S.,
at 363. This conclusion was based upon several findings. First,
noting that the forfeiture proceeding was
in rem, we found
it significant that "[a]ctions
in rem have traditionally
been viewed as civil proceedings, with jurisdiction dependent upon
seizure of a physical object."
Ibid., citing
Calero-Toledo v.
Pearson Yacht Leasing Co., 416 U.
S., at 684. Second, we found that the forfeiture provision, because
it reached both weapons used in violation of federal law and those
"intended to be used" in such a manner, reached a broader range of
conduct than its criminal analog. Third, we concluded that the
civil forfeiture "further[ed] broad remedial aims," including both
"discouraging unregulated commerce in firearms" and "removing from
circulation firearms that have been used or intended for use
outside regulated channels of commerce." 89
Firearms, supra,
at 364.
278
In the second stage of our analysis, we looked to " 'whether the
statutory scheme was so punitive either in purpose or effect as to
negate' Congress' intention to establish a civil remedial
mechanism," 465 U. S., at 365, quoting
United States v.
Ward, 448 U.
S. 242, 248-249 (1980). Considering several factors that we had
used previously in order to determine whether a civil proceeding
was so punitive as to require application of the full panoply of
constitutional protections required in a criminal trial, see
id., at 248, we found only one of those factors to be
present in the § 924(d) forfeiture. By itself, however, the fact
that the behavior proscribed by the forfeiture was already a crime
proved insufficient to turn the forfeiture into a punishment
subject to the Double Jeopardy Clause. Hence, we found that the gun
owner had "failed to establish by the 'clearest proof' that
Congress has provided a sanction so punitive as to 'transfor[m]
what was clearly intended as a civil remedy into a criminal
penalty.'" 89
Firearms, supra, at 366, quoting
Rex
Trailer Co. v.
United States, 350 U. S. 148, 154
(1956). We concluded our decision by restating that civil
forfeiture is "not an additional penalty for the commission of a
criminal act, but rather is a separate civil sanction, remedial in
nature." 89
Firearms, supra, at 366.
B
Our cases reviewing civil forfeitures under the Double Jeopardy
Clause adhere to a remarkably consistent theme. Though the two-part
analytical construct employed in 89
Firearms was more
refined, perhaps, than that we had used over 50 years earlier in
Various Items, the conclusion was the same in each case:
In rem civil forfeiture is a remedial civil sanction,
distinct from potentially punitive
in personam civil
penalties such as fines, and does not constitute a punishment under
the Double Jeopardy Clause. See
Gore v.
United
States, 357 U. S.
386, 392 (1958) ("In applying a provision like that of double
jeopardy, which is rooted in history
279
and is not an evolving concept ... , a long course of
adjudication in this Court carries impressive authority").
In the cases that we currently review, the Court of Appeals for
the Ninth Circuit recognized as much, concluding that after 89
Firearms, "the law was clear that civil forfeitures did not
constitute 'punishment' for double jeopardy purposes." 33 F. 3d, at
1218. Nevertheless, that court read three of our decisions to have
"abandoned" 89
Firearms and the oft-affirmed rule of
Various Items. According to the Court of Appeals for the
Ninth Circuit, through our decisions in
United States v.
Halper, 490 U.
S. 435 (1989),
Austin v.
United States, 509 U. S. 602 (1993), and
Department of Revenue of Mont. v.
Kurth Ranch,
511 U. S. 767
(1994), we "changed [our] collective mind," and "adopted a new test
for determining whether a nominally civil sanction constitutes
'punishment' for double jeopardy purposes." 33 F. 3d, at 1218-1219.
The Court of Appeals for the Sixth Circuit shared the view of the
Ninth Circuit, though it did not directly rely upon
Kurth
Ranch. We turn now to consider whether
Halper, Austin,
and
Kurth Ranch accomplished the radical jurisprudential
shift perceived by the Courts of Appeals.
In
Halper, we considered "whether and under what
circumstances a civil penalty may constitute 'punishment' for the
purposes of double jeopardy analysis."
Halper, supra, at
436. Based upon his submission of 65 inflated Medicare claims, each
of which overcharged the Government by $9, Halper was criminally
convicted of 65 counts of violating the false-claims statute, 18 U.
S. C. § 287 (1982 ed.), as well as of 16 counts of mail fraud, and
was sentenced to two years in prison and fined $5,000. Following
that criminal conviction, the Government successfully brought a
civil action against Halper under 31 U. S. C. § 3729 (1982 ed. and
Supp. II). The District Court hearing the civil action determined
that Halper was liable to the Government for over $130,000 under §
3729, which then provided for liability in the amount of
280
$2,000 per violation, double the Government's actual damages,
and court costs. The court concluded that imposing the full civil
penalty would constitute a second punishment for Halper's
already-punished criminal offense, however, and therefore reduced
Halper's liability to double the actual damages suffered by the
Government and the costs of the civil action. The Government
directly appealed that decision to this Court.
This Court agreed with the District Court's analysis. We
determined that our precedent had established no absolute and
irrebuttable rule that a civil fine cannot be "punishment" under
the Double Jeopardy Clause. Though it was well established that "a
civil remedy does not rise to the level of 'punishment' merely
because Congress provided for civil recovery in excess of the
Government's actual damages," we found that our case law did "not
foreclose the possibility that in a particular case a civil penalty
... may be so extreme and so divorced from the Government's damages
and expenses as to constitute punishment." 490 U. S., at 442.
Emphasizing the case-specific nature of our inquiry,
id., at
448, we compared the size of the fine imposed on Halper, $130,000,
to the damages actually suffered by the Government as a result of
Halper's actions, estimated by the District Court at $585. Noting
that the fine was more than 220 times greater than the Government's
damages, we agreed with the District Court that "Halper's $130,000
liability is sufficiently disproportionate that the sanction
constitutes a second punishment in violation of double jeopardy."
Id., at 452. We remanded to the District Court so that it
could hear evidence regarding the Government's actual damages, and
could then reduce Halper's liability to a nonpunitive level.
Ibid.
In
Austin, we considered whether a civil forfeiture could
violate the Excessive Fines Clause of the Eighth Amendment to the
Constitution, which provides that "[e]xcessive bail shall not be
required, nor excessive fines imposed .... " Aware that Austin had
sold two grams of cocaine the pre-
281
vious day, police searched his mobile home and body shop. Their
search revealed small amounts of marijuana and cocaine, a handgun,
drug paraphernalia, and almost $5,000 in cash. Austin was charged
with one count of possessing cocaine with intent to distribute, to
which he pleaded guilty. The Government then initiated a civil
forfeiture proceeding against Austin's mobile home and auto shop,
contending that they had been "used" or were "intended for use" in
the commission of a drug offense. See 21 U. S. C. §§881(a)(4) and
(a)(7). Austin contested the forfeiture on the ground of the
Excessive Fines Clause, but the District Court and the Court of
Appeals held the forfeiture constitutional.
We limited our review to the question "whether the Excessive
Fines Clause of the Eighth Amendment applies to forfeitures of
property under 21 U. S. C. §§ 881(a)(4) and (a)(7)."
Austin,
supra, at 604. We began our analysis by rejecting the argument
that the Excessive Fines Clause was limited solely to criminal
proceedings: The relevant question was not whether a particular
proceeding was criminal or civil, we determined, but rather was
whether forfeiture under §§ 881 (a)(4) and (a)(7) constituted
"punishment" for the purposes of the Eighth Amendment.
Austin,
supra, at 610. In an effort to answer that question, we briefly
reviewed the history of civil forfeiture both in this country and
in England, see 509 U. S., at 611-618, taking a categorical
approach that contrasted sharply with
Halper's case-specific
approach to determining whether a civil penalty constitutes
punishment. Ultimately, we concluded that "forfeiture under [§§
881(a)(4) and (a)(7)] constitutes 'payment to a sovereign as
punishment for some offense,' and, as such, is subject to the
limitations of the Eighth Amendment's Excessive Fines Clause." 509
U. S., at 622 (citation omitted).
In
Department of Revenue of Mont. v.
Kurth Ranch,
supra, we considered whether a state tax imposed on marijuana
was invalid under the Double Jeopardy Clause when the taxpayer had
already been criminally convicted of own-
282
ing the marijuana that was taxed. We first established that the
fact that Montana had labeled the civil sanction a "tax" did not
end our analysis. We then turned to consider whether the tax was so
punitive as to constitute a punishment subject to the Double
Jeopardy Clause. Several differences between the marijuana tax
imposed by Montana and the typical revenue-raising tax were readily
apparent. The Montana tax was unique in that it was conditioned on
the commission of a crime and was imposed only after the taxpayer
had been arrested: Thus, only a person charged with a criminal
offense was subject to the tax. We also noted that the taxpayer did
not own or possess the taxed marijuana at the time that the tax was
imposed. From these differences, we determined that the tax was
motivated by a " 'penal and prohibitory intent rather than the
gathering of revenue.'"
Id., at 781. Concluding that the
Montana tax proceeding "was the functional equivalent of a
successive criminal prosecution," we affirmed the Court of Appeals'
judgment barring the tax.
Id., at 784.
We think that the Court of Appeals for the Sixth Circuit and the
Court of Appeals for the Ninth Circuit misread
Halper,
Austin, and
Kurth Ranch. None of those decisions
purported to overrule the well-established teaching of
Various
Items, Emerald Cut Stones, and 89
Firearms. Halper
involved not a civil
forfeiture, but a civil
penalty.
That its rule was limited to the latter context is clear from the
decision itself, from the historical distinction that we have drawn
between civil forfeiture and civil penalties, and from the
practical difficulty of applying
Halper to a civil
forfeiture.
In
Halper, we emphasized that our decision was limited
to
the context of civil penalties:
"What we announce now 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 has caused. The
rule is one of reason: Where a
283
defendant previously has sustained a criminal penalty and the
civil penalty sought in the subsequent proceeding bears no
rational relation to the goal of compensating the Government for
its loss, but rather appears to qualify as 'punishment' in the
plain meaning of the word, then the defendant is entitled to an
accounting of the Government's damages and costs to determine if
the penalty sought in fact constitutes a second punishment." 490 U.
S., at 449-450 (emphasis added).
The narrow focus of
Halper followed from the distinction
that we have drawn historically between civil forfeiture and civil
penalties. Since at least
Various Items, we have
distinguished civil penalties such as fines from civil forfeiture
proceedings that are
in rem. While a "civil action to
recover ... penaltie[s] is punitive in character," and much like a
criminal prosecution in that "it is the wrongdoer in person who is
proceeded against ... and punished," in an
in rem forfeiture
proceeding, "[i]t is the property which is proceeded against, and
by resort to a legal fiction, held guilty and condemned."
Various Items, 282 U. S., at 580-581. Thus, though for
double jeopardy purposes we have never balanced the value of
property forfeited in a particular case against the harm suffered
by the Government in that case, we have balanced the size of a
particular civil penalty against the Government's harm. See,
e.
g., Rex Trailer Co. v.
United States, 350 U. S., at 154
(fines not "so unreasonable or excessive" as to transform a civil
remedy into a criminal penalty);
United States ex rel.
Marcus v.
Hess, 317 U. S. 537 (1943)
(fine of $315,000 not so disproportionate to Government's harm of
$101,500 as to transform the fine into punishment). Indeed, the
rule set forth in
Halper developed from the teaching of
Rex Trailer and
Hess. See
Halper, supra, at
445-447.
It is difficult to see how the rule of
Halper could be
applied to a civil forfeiture. Civil penalties are designed as a
rough form of "liquidated damages" for the harms suffered by
the
284
Government as a result of a defendant's conduct. See
Rex
Trailer, supra, at 153-154. The civil penalty involved in
Halper, for example, provided for a fixed monetary penalty
for each false claim count on which the defendant was convicted in
the criminal proceeding. Whether a "fixed-penalty provision" that
seeks to compensate the Government for harm it has suffered is "so
extreme" and "so divorced" from the penalty's nonpunitive purpose
of compensating the Government as to be a punishment may be
determined by balancing the Government's harm against the size of
the penalty. Civil forfeitures, in contrast to civil penalties, are
designed to do more than simply compensate the Government.
Forfeitures serve a variety of purposes, but are designed primarily
to confiscate property used in violation of the law, and to require
disgorgement of the fruits of illegal conduct. Though it may be
possible to quantify the value of the property forfeited, it is
virtually impossible to quantify, even approximately, the
nonpunitive purposes served by a particular civil forfeiture.
Hence, it is practically difficult to determine whether a
particular forfeiture bears no rational relationship to the
nonpunitive purposes of that forfeiture. Quite simply, the
case-by-case balancing test set forth in
Halper, in which a
court must compare the harm suffered by the Government against the
size of the penalty imposed, is inapplicable to civil
forfeiture.2
2JUSTICE STEVENS' dissent is grounded in the different
interpretation that he gives
Halper. He finds that
Halper announced "two different rules"; a general rule,
applicable to all civil sanctions, useful for determining whether a
sanction is "of a punitive character"; and a "narrower rule,"
similar to our understanding of the case, that requires "an
accounting of the Government's damages and costs."
Post, at
308. JUSTICE STEVENS faults us in these cases for failing to apply
the "general rule" of
Halper.
The problem with JUSTICE STEVENS' interpretation of
Halper, of course, and therefore with his entire argument,
is that
Halper did not announce two rules. Nowhere in
Halper does the Court set forth two distinct rules or
purport to apply a two-step analysis. JUSTICE STEVENS finds his
"general rule" in a dictum from
Halper: "'[A] civil sanction
that
285
We recognized as much in
Kurth Ranch. In that case, the
Court expressly disclaimed reliance upon
Halper, finding
that its case-specific approach was impossible to apply outside the
context of a fixed civil-penalty provision. Reviewing the Montana
marijuana tax, we held that because "tax
cannot fairly be said solely to serve a remedial purpose, but
rather can only be explained as also serving either retributive or
deterrent purposes, is punishment.'''
Post, at 306, quoting
United States v.
Halper, 490 U. S. 435, 448
(1989). But the discussion immediately following that dictum makes
clear that it states not a new and separate test for whether a
sanction is a punishment, but rather only a rephrasing of JUSTICE
STEVENS' "narrower" rule, i.
e., the rule requiring an
"accounting of the Government's damages and costs."
Id., at
449.
"We therefore hold that under the Double Jeopardy Clause a
defendant who already has been punished ... may not be subjected to
an additional civil sanction
to the extent that the second
sanction may not fairly be characterized as remedial, but only as a
deterrent or retribution.
"We acknowledge that this inquiry will not be an exact pursuit.
In our decided cases we have noted that the precise amount of the
Government's damages and costs may prove to be difficult, if not
impossible, to ascertain . . . . [I]t would be difficult if not
impossible in many cases for a court to determine the precise
dollar figure at which a civil sanction has accomplished its
remedial purpose of making the Government whole, but beyond which
the sanction takes on the quality of punishment."
Id., at
448-449 (emphasis added); see also
id., at 449-451.
The "general rule" discovered by JUSTICE STEVENS in
Halper would supplant, not mimic, see
post, at 306,
the rule of
United States v.
One Assortment of 89
Firearms, 465
U. S. 354 (1984), and
One Lot Emerald Cut Stones v.
United States, 409 U. S. 232 (1972).
Whether a particular sanction "cannot fairly be said
solely
to serve a remedial purpose" is an inquiry radically different from
that we have traditionally employed in order to determine whether,
as a categorical matter, a civil sanction is subject to the Double
Jeopardy Clause. Yet nowhere in
Halper does the Court
purport to make such a sweeping change in the law, instead
emphasizing repeatedly the narrow scope of its decision.
Halper,
supra, at 449 (announcing rule for "the rare case"). If the
"general rule" of JUSTICE STEVENS were applied literally, then
virtually every sanction would be declared to be a punishment: It
is hard to imagine a sanction that has no punitive aspect
whatsoever. JUSTICE STEVENS' interpretation of
Halper is
both contrary to the decision itself and would create an unworkable
rule inconsistent with well-established precedent.
286
statutes serve a purpose quite different from civil penalties,
... Halper's method of determining whether the exaction was
remedial or punitive simply does not work in the case of a tax
statute."
Kurth Ranch, 511 U. S., at 784 (internal quotation
marks omitted); see also
id., at 786 (REHNQUIST, C. J.,
dissenting)
(Halper inapplicable outside of "'fixedpenalty
provision[sJ''' that are meant "to recover the costs incurred by
the Government for bringing someone to book for some violation of
law"). This is not to say that there is no occasion for analysis of
the Government's harm. 89
Firearms makes clear the relevance
of an evaluation of the harms alleged. The point is simply that
Halper's casespecific approach is inapplicable to civil
forfeitures.
In the cases that we review, the Courts of Appeals did not find
Halper difficult to apply to civil forfeiture because they
concluded that its case-by-case balancing approach had been
supplanted in
Austin by a categorical approach that found a
civil sanction to be punitive if it could not "fairly be said
solely to serve a remedial purpose." See
Austin, 509 U. S.,
at 610; see also
Halper, 490 U. S., at 448. But
Austin, it must be remembered, did not involve the Double
Jeopardy Clause at all.
Austin was decided solely under the
Excessive Fines Clause of the Eighth Amendment, a constitutional
provision which we never have understood as parallel to, or even
related to, the Double Jeopardy Clause of the Fifth Amendment. The
only discussion of the Double Jeopardy Clause contained in
Austin appears in a footnote that acknowledges our decisions
holding that "[t]he Double Jeopardy Clause has been held not to
apply in civil forfeiture proceedings ... where the forfeiture
could properly be characterized as remedial."
Austin, supra,
at 608, n. 4. And in
Austin we expressly recognized and
approved our decisions in
One Lot Emerald Cut Stones v.
United States, 409 U. S. 232 (1972), and
United States v.
One Assortment of 89
Firearms, 465
U. S. 354 (1984). See
Austin, supra, at 608, n. 4.
287
We acknowledged in
Austin that our categorical approach
under the Excessive Fines Clause was wholly distinct from the
case-by-case approach of
Halper, and we explained that the
difference in approach was based in a significant difference
between the purposes of our analysis under each constitutional
provision. See
Austin, supra, at 622, n. 14. It is
unnecessary in a case under the Excessive Fines Clause to inquire
at a preliminary stage whether the civil sanction imposed in that
particular case is totally inconsistent with any remedial goal.
Because the second stage of inquiry under the Excessive Fines
Clause asks whether the particular sanction in question is so large
as to be "excessive," see
Austin, 509 U. S., at 622-623
(declining to establish criteria for excessiveness), a
preliminary-stage inquiry that focused on the disproportionality of
a particular sanction would be duplicative of the excessiveness
analysis that would follow. See
id., at 622, n. 14 ("[I]t
appears to make little practical difference whether the Excessive
Fines Clause applies to all forfeitures ... or only to those that
cannot be characterized as purely remedial," because the Excessive
Fines Clause "prohibits only the imposition of 'excessive' fines,
and a fine that serves purely remedial purposes cannot be
considered 'excessive' in any event"). Forfeitures effected under
21 U. S. C. §§ 881(a)(4) and (a)(7) are subject to review for
excessiveness under the Eighth Amendment after
Austin; this
does not mean, however, that those forfeitures are so punitive as
to constitute punishment for the purposes of double jeopardy. The
holding of
Austin was limited to the Excessive Fines Clause
of the Eighth Amendment, and we decline to import the analysis of
Austin into our double jeopardy jurisprudence.
In sum, nothing in
Halper, Kurth Ranch, or
Austin
purported to replace our traditional understanding that civil
forfeiture does not constitute punishment for the purpose of the
Double Jeopardy Clause. Congress long has authorized the Government
to bring parallel criminal proceedings and civil
288
forfeiture proceedings, and this Court consistently has found
civil forfeitures not to constitute punishment under the Double
Jeopardy Clause. It would have been quite remarkable for this Court
both to have held unconstitutional a wellestablished practice, and
to have overruled a long line of precedent, without having even
suggested that it was doing so.
Halper dealt with
in
personam civil penalties under the Double Jeopardy Clause;
Kurth Ranch with a tax proceeding under the Double Jeopardy
Clause; and
Austin with civil forfeitures under the
Excessive Fines Clause. None of those cases dealt with the subject
of these cases:
in rem civil forfeitures for purposes of the
Double Jeopardy Clause.
C
We turn now to consider the forfeitures in these cases under the
teaching of
Various Items, Emerald Cut Stones, and 89
Firearms. Because it provides a useful analytical tool, we
conduct our inquiry within the framework of the two-part test used
in 89
Firearms. First, we ask whether Congress intended
proceedings under 21 U. S. C. § 881 and 18 U. S. C. § 981 to be
criminal or civil. Second, we turn to consider whether the
proceedings are so punitive in fact as to "persuade us that the
forfeiture proceeding[s] may not legitimately be viewed as civil in
nature," despite Congress' intent. 465 U. S., at 366.
There is little doubt that Congress intended these forfeitures
to be civil proceedings. As was the case in 89
Firearms,
"Congress' intent in this regard is most clearly demonstrated by
the procedural mechanisms it established for enforcing forfeitures
under the statute[s]."
Id., at 363. Both 21 U. S. C. § 881
and 18 U. S. C. § 981, which is entitled "Civil forfeiture,"
provide that the laws "relating to the seizure, summary and
judicial forfeiture, and condemnation of property for violation of
the customs laws ... shall apply to seizures and forfeitures
incurred" under §§ 881 and 981. See 21 U. S. C. § 881(d); 18 u. S.
C. § 981(d). Because forfeit-
289
ure proceedings under the customs laws are
in rem, see 19
U. S. C. § 1602
et seq., it is clear that Congress intended
that a forfeiture under § 881 or § 981, like the forfeiture
reviewed in 89
Firearms, would be a proceeding
in
rem. Congress specifically structured these forfeitures to be
impersonal by targeting the property itself. "In contrast to the
in personam nature of criminal actions, actions
in
rem have traditionally been viewed as civil proceedings, with
jurisdiction dependent upon seizure of a physical object." 89
Firearms, supra, at 363, citing
Calero-Toledo, 416 U.
S., at 684.
Other procedural mechanisms governing forfeitures under §§ 881
and 981 also indicate that Congress intended such proceedings to be
civil. Forfeitures under either statute are governed by 19 U. S. C.
§ 1607, which provides that actual notice of the impending
forfeiture is unnecessary when the Government cannot identify any
party with an interest in the seized article, and by § 1609, which
provides that seized property is subject to forfeiture through a
summary administrative procedure if no party files a claim to the
property. And 19 U. S. C. § 1615, which governs the burden of proof
in forfeiture proceedings under §§ 881 and 981, provides that once
the Government has shown probable cause that the property is
subject to forfeiture, then "the burden of proof shall lie upon
[the] claimant." In sum, "[b]y creating such distinctly civil
procedures for forfeitures under [§§ 881 and 981], Congress has
'indicate[d] clearly that it intended a civil, not a criminal
sanction.''' 89
Firearms, supra, at 363, quoting
Helvering v.
Mitchell, 303 U. S. 391, 402
(1938).3
3JUSTICE STEVENS mischaracterizes our holding. We do not hold
that
in rem civil forfeiture is
per se exempt from
the scope of the Double Jeopardy Clause. See
post, at
300-305. Similarly, we do not rest our conclusion in these cases
upon the long-recognized fiction that a forfeiture
in rem
punishes only malfeasant property rather than a particular person.
See
post, at 313-316. That a forfeiture is designated as
civil by Congress and proceeds
in rem establishes a
presumption that it is not subject to double jeopardy. See,
e.
g., 89
Firearms, 465 U. S., at 363. Nevertheless, where
the "clearest proof" indicates that an
in rem civil
forfeiture is "so
290
Moving to the second stage of our analysis, we find that there
is little evidence, much less the" 'clearest proof'" that we
require, see 89
Firearms, supra, at 365, quoting
Ward, 448 U. S., at 249, suggesting that forfeiture
proceedings under 21 U. S. C. §§ 881(a)(6) and (a)(7), and 18 U. S.
C. § 981(a)(1)(A), are so punitive in form and effect as to render
them criminal despite Congress' intent to the contrary. The
statutes involved in these cases are, in most significant respects,
indistinguishable from those reviewed, and held not to be punitive,
in
Various Items, Emerald Cut Stones, and
89
Firearms.
Most significant is that § 981(a)(1)(A) and §§ 881(a)(6) and
(a)(7), while perhaps having certain punitive aspects, serve
important nonpunitive goals. Title 21 U. S. C. § 881(a)(7), under
which Ursery's property was forfeited, provides for the forfeiture
of "all real property ... which is used or intended to be used, in
any manner or part, to commit, or to facilitate the commission of"
a federal drug felony. Requiring the forfeiture of property used to
commit federal narcotics violations encourages property owners to
take care in managing their property and ensures that they will not
permit that property to be used for illegal purposes. See
Bennis v.
Michigan, 516 U. S. 442, 452 (1996)
("Forfeiture of property prevents illegal uses ... by imposing an
economic penalty, thereby rendering illegal behavior
unprofitable"); 89
Firearms, supra, at 364 (forfeiture
"discourages unregulated commerce in firearms");
Calero-Toledo,
supra, at 687-688. In many circumstances, the forfeiture may
abate a nuisance. See,
e. g., United States v.
1.f"lst
Street Corp., 911 F.2d
870 (CA2 1990) (forfeiting apartment building used to sell
crack cocaine); see also
Bennis, supra, at 452 (affirming
application of Michigan statute abating car as a nuisance;
forfeiture "prevent[s] further illicit use of" property); cf. 89
Firearms, 465
punitive either in purpose or effect" as to be equivalent to a
criminal proceeding, that forfeiture may be subject to the Double
Jeopardy Clause.
Id., at 365.
291
u. S., at 364 (forfeiture "remov[ed] from circulation firearms
that have been used or intended for use" illegally);
Emerald Cut
Stones, 409 U. S., at 237 (forfeiture "prevented forbidden
merchandise from circulating in the United States").
The forfeiture of the property claimed by Arlt and Wren took
place pursuant to 18 U. S. C. § 981(a)(1)(A) and 21 U. S. C. § 881
(a) (6). Section 981(a)(1)(A) provides for the forfeiture of "[a]ny
property" involved in illegal moneylaundering transactions. Section
881(a)(6) provides for the forfeiture of "[a]ll ... things of value
furnished or intended to be furnished by any person in exchange
for" illegal drugs; "all proceeds traceable to such an exchange";
and "all moneys, negotiable instruments, and securities used or
intended to be used to facilitate" a federal drug felony. The same
remedial purposes served by § 881(a)(7) are served by §§ 881(a)(6)
and 981(a)(1)(A). Only one point merits separate discussion. To the
extent that § 881(a)(6) applies to "proceeds" of illegal drug
activity, it serves the additional nonpunitive goal of ensuring
that persons do not profit from their illegal acts.
Other considerations that we have found relevant to the question
whether a proceeding is criminal also tend to support a conclusion
that § 981(a)(1)(A) and §§ 881(a)(6) and (a)(7) are civil
proceedings. See
Ward, supra, at 247-248, n. 7,249 (listing
relevant factors and noting that they are neither exhaustive nor
dispositive). First, in light of our decisions in
Various Items,
Emerald Cut Stones, and 89
Firearms, and the long
tradition of federal statutes providing for a forfeiture proceeding
following a criminal prosecution, it is absolutely clear that
in
rem civil forfeiture has not historically been regarded as
punishment, as we have understood that term under the Double
Jeopardy Clause. Second, there is no requirement in the statutes
that we currently review that the Government demonstrate scienter
in order to establish that the property is subject to forfeiture;
indeed, the property may be subject to forfeiture even if no party
files a
292
claim to it and the Government never shows any connection
between the property and a particular person. See 19 U. S. C. §
1609. Though both §§ 881(a) and 981(a) contain an "innocent owner"
exception, we do not think that such a provision, without more
indication of an intent to punish, is relevant to the question
whether a statute is punitive under the Double Jeopardy Clause.
Third, though both statutes may fairly be said to serve the purpose
of deterrence, we long have held that this purpose may serve civil
as well as criminal goals. See,
e. g., 89
Firearms,
supra, at 364;
CaleroToledo, 416 U. S., at 677-678. We
recently reaffirmed this conclusion in
Bennis v.
Michigan, supra, at 452, where we held that "forfeiture ...
serves a deterrent purpose distinct from any punitive purpose."
Finally, though both statutes are tied to criminal activity, as was
the case in
89 Firearms, this fact is insufficient to render
the statutes punitive. See 89
Firearms, supra, at 365-366.
It is well settled that "Congress may impose both a criminal and a
civil sanction in respect to the same act or omission,"
Helvering, 303 U. S., at 399. By itself, the fact that a
forfeiture statute has some connection to a criminal violation is
far from the "clearest proof" necessary to show that a proceeding
is criminal.
We hold that these
in rem civil forfeitures are neither
"punishment" nor criminal for purposes of the Double Jeopardy
Clause. The judgments of the Court of Appeals for the Sixth
Circuit, in No. 95-345, and of the Court of Appeals for the Ninth
Circuit, in No. 95-346, are, accordingly, reversed.
It is so ordered.
JUSTICE KENNEDY, concurring.
I join the Court's opinion and add these further
observations.
In
Austin v.
United States, 509 U. S. 602, 619-622
(1993), we described the civil
in rem forfeiture provision
of 21 U. S. C. § 881(a)(7) at issue here as punitive. In
Libretti v.
United States, 516 U. S. 29 (1995), we
reviewed 21 U. S. C.
293
§ 853, which in almost identical terms provides for criminal
forfeiture of property involved in or derived from drug crimes. We
held that the "fundamental nature of criminal forfeiture" is
punishment. 516 U. S., at 41. Today the Court holds that the civil
in rem forfeitures here are not punishment implicating the
protections of the Double Jeopardy Clause.
Ante, at 292. I
write to explain why, in my view, our holding is consistent with
both
Austin and
Libretti.
The Fifth Amendment provides that no person shall "be subject
for the same offence to be twice put in jeopardy of life or limb."
U. S. Const., Arndt. 5. We have interpreted the Double Jeopardy
Clause to "protec[t] against a second prosecution for the same
offense after acquittal, against a second prosecution for the same
offense after conviction, and against multiple punishments for the
same offense."
Justices of Boston Municipal Court v.
Lydon, 466 U.
S. 294, 306-307 (1984);
Jones v.
Thomas, 491 U. S. 376, 380-381
(1989).
Although there is language in our cases to the contrary, see
One 1958
Plymouth Sedan v.
Pennsylvania,
380 U. S. 693,
700 (1965);
Boyd v.
United States, 116 U. S. 616, 634
(1886), civil
in rem forfeiture is not punishment of the
wrongdoer for his criminal offense. We made this clear in
Various Items of Personal Property v.
United States,
282 U. S. 577
(1931), which the Court is right to deem the seminal case in this
area,
ante, at 274.
"[This] forfeiture proceeding ... is in rem. It is the
property which is proceeded against, and, by resort to a legal
fiction, held guilty and condemned as though it were conscious
instead of inanimate and insentient. In a criminal prosecution it
is the wrongdoer in person who is proceeded against, convicted and
punished. The forfeiture is no part of the punishment for the
criminal offense. The provision of the Fifth Amendment to the
Constitution in respect of double jeopardy does not apply." 282 U.
S., at 581 (citations omitted).
294
Embracing the rule of
Various Items, that the Double
Jeopardy Clause applies only to
in personam punishments of
the wrongdoer and not
in rem forfeitures, does not imply
that forfeiture inflicts no punishment. Though I have expressed my
doubts about the view expressed in
Austin, 509 U. S., at
611-618, that throughout history forfeitures have been intended to
punish blameworthy owners,
id., at 629 (opinion concurring
in part and concurring in judgment);
Bennis v.
Michigan, 516
U. S. 442, 472-473 (1996) (dissenting opinion), I did not there
question the punitive nature of § 881(a)(7), nor do I now. Under
this statute, providing for the forfeiture of real property used to
facilitate a drug offense, only the culpable stand to lose their
property; no interest of any owner is forfeited if he can show he
did not know of or consent to the crime.
Ibid.
The key distinction is that the instrumentality-forfeiture
statutes are not directed at those who carry out the crimes, but at
owners who are culpable for the criminal misuse of the property.
See
Austin, supra, at 619 (statutory "exemptions serve to
focus the provisions on the culpability of the owner"). The theory
is that the property, whether or not illegal or dangerous in
nature, is hazardous in the hands of this owner because either he
uses it to commit crimes, or allows others to do so. The owner can
be held accountable for the misuse of the property. Cf.
One
1958
Plymouth Sedan, supra, at 699 ("There is nothing even
remotely criminal in possessing an automobile. It is only the
alleged use to which this particular automobile was put that
subjects [the owner] to its possible loss"). The same rationale is
at work in the statutory provisions enabling forfeiture of currency
"used or intended to be used" to facilitate a criminal offense, §
881(a)(6). See also 18 U. S. C. § 981(a)(1)(A) (property involved
in money-laundering transactions or attempts in violation of 18 U.
S. C. § 1956). Since the punishment befalls any propertyholder who
cannot claim statutory inno-
295
cence, whether or not he committed any criminal acts, it is not
a punishment for a person's criminal wrongdoing.
Forfeiture, then, punishes an owner by taking property involved
in a crime, and it may happen that the owner is also the wrongdoer
charged with a criminal offense. But the forfeiture is not a second
in personam punishment for the offense, which is all the
Double Jeopardy Clause prohibits. See
ante, at 276 ("The
forfeitures were not criminal punishments because they did not
impose a second
in personam penalty for the criminal
defendant's wrongdoing");
One Lot Emerald Cut Stones v.
United States, 409 U. S. 232, 235
(1972) (per curiam) ("[T]he forfeiture is not barred
by the Double Jeopardy Clause of the Fifth Amendment because it
involves neither two criminal trials nor two criminal
punishments").
Civil
in rem forfeiture has long been understood as
independent of criminal punishments. In
The Palmyra, 12
Wheat. 1 (1827), we rejected a claim that a libel
in rem
required a conviction for the criminal offense charged in the
libel. Distinguishing forfeitures of a felon's goods and chattels,
which required proof of a conviction, we noted that the statutory
in rem "offence is attached primarily to the thing," and
that often
in rem forfeiture was imposed in the absence of
any
in personam penalty.
Id., at 14. Examining
American and English statutes, we concluded: "[T]he practice has
been, and so this Court understand[s] the law to be, that the
proceeding
in rem stands independent of, and wholly
unaffected by any criminal proceeding
in personam." Id., at
15.
Distinguishing between
in rem and
in personam
punishments does not depend upon, or revive, the fiction alive in
Various Items, supra, at 581, but condemned in
Austin,
supra, at 615, n. 9, that the property is punished as if it
were a sentient being capable of moral choice. It is the owner who
feels the pain and receives the stigma of the forfeiture, not the
property. See
United States v.
United States Coin
&
Currency, 401 U. S. 715, 718
(1971). The distinction
296
simply recognizes that Congress, in order to quiet title to
forfeitable property in one proceeding, has structured the
forfeiture action as a proceeding against the property, not against
a particular defendant. Indeed, the Government will often file a
forfeiture complaint without any knowledge of who the owner is. See
ante, at 291-292. True, the forfeiture statutes require
proof of a violation of a drug trafficking or other offense, but
the purpose of this predicate showing is just to establish that the
property was used in a crime. In contrast to criminal forfeiture,
see 21 U. S. C. § 853(a), civil
in rem forfeiture actions do
not require a showing that the owner who stands to lose his
property interest has committed a criminal offense. See § 881(a)(6)
("any violation of this subchapter"); § 881(a)(7) ("a violation of
this subchapter"); 18 U. S. C. § 981(a)(1)(A) ("a transaction or
attempted transaction in violation of" § 1956). The offenses
committed by Ursery, Arlt, and Wren were proffered as evidence that
the property was used in a crime, but this does not make forfeiture
a punishment for those offenses. See
United States v.
One
Assortment of 89
Firearms, 465 U. S. 354, 366 (1984)
(civil forfeiture is "not an additional penalty for the commission
of a criminal act").
For this reason, JUSTICE STEVENS' attempt,
post, at 317,
to rely on the same-elements test of
Blockburger v.
United States, 284 U. S. 299, 304
(1932), is unavailing.
Blockburger is a misfit in this
context; it compares the elements of two offenses charged against a
defendant. The forfeiture cause of action is not charging a second
offense of the person; it is a proceeding against the property in
which proof of a criminal violation by any person will suffice,
provided that some knowledge of, or consent to, the crime on the
part of the property owner is also established.
In Part II -C of its opinion, the Court conducts the twopart
inquiry established in 89
Firearms, supra, at 362-366, as to
whether, first, Congress intended the proceedings to be civil, and,
second, the forfeitures are so punitive as to be
297
criminal in nature and therefore subject to the Double Jeopardy
Clause.
Ante, at 288. The test was imported by the
89
Firearms Court from cases involving civil
in personam
penalties. See 465 U. S., at 362 (citing
Helvering v.
Mitchell, 303
U. S. 391, 398-399 (1938), and
United States v.
Ward, 448 U.
S. 242, 248 (1980)). In the context of these cases and the
precedents bearing upon them, I am not sure the test adds much to
the clear rule of
Various Items that civil
in rem
forfeiture of property involved in a crime is not punishment
subject to the Double Jeopardy Clause. As to the first prong of the
test, any
in rem proceeding is civil. As to the second
prong, so long as forfeiture hinges on the property's use in a
crime, there will always be the remedial purpose the Court
identifies of preventing property owners from allowing their goods
to be used for illegal purposes,
ante, at 290. I acknowledge
89
Firearms to be precedent, however, and, because the
Court's application of the test is consistent with
Various
Items, I join its opinion in full.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in
the judgment.
In my view, the Double Jeopardy Clause prohibits successive
prosecution, not successive punishment. See
Department of
Revenue of Mont. v.
Kurth Ranch, 511 U. S. 767, 798 (1994)
(SCALIA, J., dissenting). Civil forfeiture proceedings of the sort
at issue here are not criminal prosecutions, even under the
standard of
Kennedy v.
Mendoza-Martinez, 372 U. S.
144, 164 (1963), and
United States v.
Ward, 448 U. S. 242, 248-251
(1980).
JUSTICE STEVENS, concurring in the judgment in part and
dissenting in part.
The question the Court poses is whether civil forfeitures
constitute "punishment" for purposes of the Double Jeopardy Clause.
Because the numerous federal statutes authorizing forfeitures cover
such a wide variety of situations, it is quite
298
Opinion of STEVENS, J.
wrong to assume that there is only one answer to that question.
For purposes of analysis it is useful to identify three different
categories of property that are subject to seizure: proceeds,
contraband, and property that has played a part in the commission
of a crime. The facts of these two cases illustrate the point.
In No. 95-346 the Government has forfeited $405,089.23 in
currency. Those funds are the proceeds of unlawful activity. They
are not property that respondents have any right to retain. The
forfeiture of such proceeds, like the confiscation of money stolen
from a bank, does not punish respondents because it exacts no price
in liberty or lawfully derived property from them. I agree that the
forfeiture of such proceeds is not punitive and therefore I concur
in the Court's disposition of No. 95-346.
None of the property seized in No. 95-345 constituted proceeds
of illegal activity. Indeed, the facts of that case reveal a
dramatically different situation. Respondent Ursery cultivated
marijuana in a heavily wooded area not far from his home in
Shiawassee County, Michigan. The illegal substance was consumed by
members of his family, but there is no evidence, and no contention
by the Government, that he sold any of it to third parties. Acting
on the basis of the incorrect assumption that the marijuana plants
were on respondent's property, Michigan police officers executed a
warrant to search the premises. In his house they found marijuana
seeds, stems, stalks, and a grow light. I presume those items were
seized, and I have no difficulty concluding that such a seizure
does not constitute punishment because respondent had no right to
possess contraband. Accordingly, I agree with the Court's opinion
insofar as it explains why the forfeiture of contraband does not
constitute punishment for double jeopardy purposes.
The critical question presented in No. 95-345 arose, not out of
the seizure of contraband by the Michigan police, but rather out of
the decision by the United States attorney to
299
take respondent's home. There is no evidence that the house had
been purchased with the proceeds of unlawful activity and the house
itself was surely not contraband. Nonetheless, 21 U. s. C. §
881(a)(7) authorized the Government to seek forfeiture of
respondent's residence because it had been used to facilitate the
manufacture and distribution of marijuana.1 Respondent was then
himself prosecuted for and convicted of manufacturing marijuana. In
my opinion none of the reasons supporting the forfeiture of
proceeds or contraband provides a sufficient basis for concluding
that the confiscation of respondent's home was not punitive.
The Government has advanced four arguments in support of its
position that the forfeiture of respondent's home under § 881(a)(7)
followed by his prosecution under § 841(a)(1) did not violate the
Double Jeopardy Clause: (1) the forfeiture was not punitive; (2)
even if punitive, it was not a "jeopardy"; (3) even if both the
forfeiture and the prosecution were jeopardies, they were not based
on the same offense under the
1 The contraband found on the premises was evidence that the
building had been used to facilitate the commission of a violation
of Title 21 punishable by more than one year's imprisonment. To
justify that forfeiture, the Government assumed the burden of
proving (a) that respondent had committed such an offense, and (b)
that the property had played some part in it. The statute provides
as follows:
"§ 881. Forfeitures
"(a) Subject property
"The following shall be subject to forfeiture to the United
States and no property right shall exist in them:
"(7) All real property, including any right, title, and interest
(including any leasehold interest) in the whole of any lot or tract
of land and any appurtenances or improvements, which is used, or
intended to be used, in any manner or part, to commit, or to
facilitate the commission of, a violation of this subchapter
punishable by more than one year's imprisonment, except that no
property shall be forfeited under this paragraph, to the extent of
an interest of an owner, by reason of any act or omission
established by that owner to have been committed or omitted without
the knowledge or consent of that owner." § 881(a)(7).
300
Opinion of STEVENS, J.
rule of
Blockburger v.
United States, 284 U. S. 299 (1932); and
(4) in all events, the two cases should be deemed to constitute a
single proceeding for double jeopardy purposes. Because the Court
addresses only the first of these arguments, I shall begin by
explaining why both reason and precedent support the conclusion
that the taking of respondent's home was unmistakably punitive in
character. I shall then comment on the other three arguments.
I
In recent years, both Congress and the state legislatures have
armed their law enforcement authorities with new powers to forfeit
property that vastly exceed their traditional tools.2 In response,
this Court has reaffirmed the funda-
2JUSTICE THOMAS has expressed his concern about both the unusual
scope and the novelty of the very statute used to carry out the
forfeiture in these cases:
"I am disturbed by the breadth of new civil forfeiture statutes
such as 21 U. S. C. § 881(a)(7), which subjects to forfeiture
all real property that is used, or intended to be used, in
the commission, or even the
facilitation, of a federal drug
offense. As JUSTICE O'CONNOR points out, ... since the Civil War we
have upheld statutes allowing for the civil forfeiture of real
property. A strong argument can be made, however, that § 881 (a)(7)
is so broad that it differs not only in degree, but in kind, from
its historical antecedents .... Indeed, it is unclear whether the
central theory behind
in rem forfeiture, the fiction 'that
the thing is primarily considered the offender,'
J. W
Goldsmith, Jr.-Grant Co. v.
United States, 254 U. S. 505, 511
(1921), can fully justify the immense scope of § 881(a)(7). Under
this provision, 'large tracts of land [and any improvements
thereon] which have no connection with crime other than being the
location where a drug transaction occurred,' Brief for Respondents
20, are subject to forfeiture. It is difficult to see how such real
property is necessarily in any sense 'guilty' of an offense, as
could reasonably be argued of, for example, the distillery in
Dobbins's Distillery v.
United States, 96 U. S. 395 (1878), or
the pirate vessel in
Harmony v.
United States, 2 How.
210 (1844). Given that current practice under § 881(a)(7) appears
to be far removed from the legal fiction upon which the civil
forfeiture doctrine is based, it may be necessary-in an appropriate
case-to reevaluate our generally deferential approach to
legislative judgments in this area of civil forfeiture."
United
301
mental proposition that all forfeitures must be accomplished
within the constraints set by the Constitution. See,
e.
g., Austin v.
United States, 509 U. S. 602 (1993);
United States v.
James Daniel Good Real Property,
510 U. S. 43
(1993). This Term the Court has begun dismantling the protections
it so recently erected. In
Bennis v.
Michigan,
516 U. S. 442
(1996), the Court held that officials may confiscate an innocent
person's automobile. And today, for the first time, it upholds the
forfeiture of a person's home. On the way to its surprising
conclusion that the owner is not punished by the loss of his
residence, the Court repeatedly professes its adherence to
tradition and time-honored practice. As I discuss below, however,
the decision shows a stunning disregard not only for modern
precedents but for our older ones as well.
In the Court's view, the seminal case is
Various Items of
Personal Property v.
United States, 282 U. S. 577 (1931),
which approved the forfeiture of an illegal distillery by resort to
the "legal fiction" that the distillery rather than its owner was
being punished "as though it were conscious instead of inanimate
and insentient."
Id., at 581. Starting from that fanciful
premise, the Court was able to conclude that confiscating the
property after the owner was prosecuted for the underlying
violations of the revenue laws did not offend the Double Jeopardy
Clause.
According to the Court,
Various Items established a
categorical rule that the Double Jeopardy Clause was "inapplicable
to civil forfeiture actions."
Ante, at 274. The Court
asserts that this rule has received "remarkably consistent"
application and was "reaffirmed" by a pair of cases in 1972 and
1984.
Ante, at 278, 276. In reality, however, shortly after
its announcement,
Various Items simply disappeared from our
jurisprudence. We cited that case in only two decisions over the
next seven years, and never again in
States v.
James Daniel Good Real Property,
510 U. S. 43,
81-82 (1993) (opinion concurring in part and dissenting in part)
(footnotes omitted).
302
Opinion of STEVENS, J.
nearly six decades. Neither of the two cases that supposedly
"affirmed"
Various Items-One Lot Emerald Cut Stones v.
United States, 409 U. S. 232 (1972)
(per curiam), and
United States v.
One Assortment
of 89
Firearms, 465 U. S. 354 (1984)-even mentioned
it.
More important, neither of those cases endorsed the asserted
categorical rule that civil forfeitures never give rise to double
jeopardy rights. Instead, each carefully considered the nature of
the particular forfeiture at issue, classifying it as either
"punitive" or "remedial," before deciding whether it implicated
double jeopardy.
Emerald Cut Stones concerned a customs
statute that authorized confiscation of certain merchandise, in
that case jewelry, that had been smuggled into the United States.
The Court explained that the purpose of the statute was to remove
such items from circulation, and that the penalty amounted to a
reasonable liquidated damages award to reimburse the Government for
the costs of enforcement and investigation. In those respects,
therefore, it constituted a "remedial rather than punitive
sanctio[n]." 409 U. S., at 237. In 89
Firearms, the Court
explored in even greater detail the character of a federal statute
that forfeited unregistered firearms. It reasoned that the sanction
"further[ed] broad remedial aims" in preventing commerce in such
weapons, and also covered a broader range of conduct than simply
criminal behavior. 465 U. S., at 364. For those reasons, it was not
properly characterized as a punitive sanction.
The majority, surprisingly, claims that
Austin v.
United States, 509 U. S. 602 (1993),
"expressly recognized and approved" those decisions.
Ante,
at 286. But the Court creates the appearance that we endorsed its
interpretation of
89 Firearms and
Emerald Cut Stones
by quoting selectively from
Austin. We actually stated the
following:
"The Double Jeopardy Clause has been held not to apply in civil
forfeiture proceedings, but only in cases
303
where the forfeiture could properly be characterized as
remedial. See United States v. One Assortment of 89 Firearms,
465 U. S. 354,
364 (1984); One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 237
(1972); see generally United States v. Halper, 490 U. S. 435, 446-449
(1989) (Double Jeopardy Clause prohibits second sanction that may
not fairly be characterized as remedial)." 509 U. S., at 608, n. 4
(emphasis added).
In reality, both cases rejected the monolithic view that all
in rem civil forfeitures should be treated the same, and
recognized the possibility that other types of forfeitures that
could not "properly be characterized as remedial" might constitute
"an additional penalty for the commission of a criminal act." 465
U. S., at 366.
That possibility was not merely speculative. The Court had
already decided that other constitutional protections applied to
forfeitures that had a punitive element. In
Boyd v.
United States, 116 U. S. 616 (1886), the
Court held that compulsory production of an individual's private
papers for use in a proceeding to forfeit his property for alleged
fraud against the revenue laws violated both the Fourth Amendment
and the Fifth Amendment's Self-Incrimination Clause. As the Court
stated: "[P]roceedings instituted for the purpose of declaring the
forfeiture of a man's property by reason of offences committed by
him, though they may be civil in form, are in their nature
criminal" and thus give rise to these constitutional safeguards.
Id., at 634.
We reaffirmed
Boyd twice during the span of time between
our decisions in
Various Items and 89
Firearms. In
One 1958
Plymouth Sedan v.
Pennsylvania,
380 U. S. 693
(1965), the Court unanimously repeated
Boyd's conclusion
that "a forfeiture proceeding is quasi-criminal in character" and
"[i]ts object, like a criminal proceeding, is to penalize for the
commission of an offense against the law." The Court therefore held
that the Fourth Amendment applied to a pro-
304
Opinion of STEVENS, J.
ceeding to forfeit an automobile used to transport illegally
manufactured liquor. 380 U. S., at 700.
Even more significant is
United States v.
United
States Coin &
Currency, 401 U. S. 715 (1971), in
which the Court again held that the Fifth Amendment applied to
forfeiture proceedings.
Coin &
Currency involved
the confiscation of gambling money under a statute, quite similar
to 21 U. S. C. § 881, providing that" '[i]t shall be unlawful to
have or possess any property intended for use in violating the
provisions of the internal revenue laws ... and no property rights
shall exist in any such property.'" 401 U. S., at 716 (quoting 26
U. S. C. § 7302). The Court held that the Fifth Amendment barred
the Government's attempt to introduce evidence of the defendant's
failure to file required tax forms against him in the forfeiture
proceeding. Following
Boyd, the Court explained that the
form of the proceeding as civil or criminal could not have any
bearing on the rights that attached when the sanction was a
penalty. "From the relevant constitutional standpoint, there is no
difference between a man who 'forfeits' $8,674 because he has used
the money in illegal gambling activities and a man who pays a
'criminal fine' of $8,674 as a result of the same course of
conduct." 401 U. S., at 718. In each case, the Court reasoned, the
liability derives from the same offense of the owner; hence, "the
Fifth Amendment applies with equal force."
Ibid.
Emerald Cut Stones expressly recognized the continuing
validity of
Coin &
Currency and
One 1958
Plymouth Sedan. It distinguished the customs statute in that
case because the forfeiture did not depend on the fact of a
criminal offense or conviction. See 409 U. S., at 236, n. 6. See
also
United States v.
Ward, 448 U. S. 242, 254 (1980)
(discussing
Boyd). That recognition is critical. For
whatever its connection to the Excessive Fines Clause of the Eighth
Amendment, the Double Jeopardy Clause is part of the same Amendment
as the Self-Incrimination Clause, and ought to be interpreted
305
in pari materia.3 By confining its holding to civil
forfeitures fairly characterized as remedial, and by distinguishing
cases that had applied the Fifth Amendment to other types of
forfeitures,
Emerald Cut Stones and 89
Firearms
recognized the possibility that the Double Jeopardy Clause might
apply to certain punitive civil forfeiture proceedings. One of the
mysteries of the Court's opinion is that although it claims that
civil
in rem forfeiture cannot be understood as punishment,
it devotes Part II -C to examining the actual purposes of the
forfeiture in these cases and "proving" that they are not punitive.
If the Court truly adhered to the logic of its position, that
entire section would be unnecessary.
Read properly, therefore, 89
Firearms and
Emerald Cut
Stones are not inconsistent with, but set the stage for, the
modern understanding of how the Double Jeopardy Clause applies in
nominally civil proceedings. That understanding has been developed
in a trio of recent decisions:
United States v.
Halper, 490 U.
S. 435 (1989),
Austin v.
United States, 509 U. S. 602 (1993), and
Department of Revenue of Mont. v.
Kurth Ranch,
511 U. S. 767
(1994). The Court of Appeals found that the combined effect of two
of those deci
sions-Halper and
Austin-established the
proposition that forfeitures under 21 U. S. C. § 881(a)(7)
implicated double jeopardy. This Court rejects that conclusion,
asserting that none of these cases changed the "oft-affirmed rule"
of
Various Items. Ante, at 279.
It is the majority, however, that has "misread"
Halper,
Austin, and
Kurth Ranch by artificially cabining each to
a separate sphere, see
ante, at 288, and treating the three
as if they concerned unrelated subjects. In fact, all three were
devoted to the common enterprise of giving meaning to the idea of
"punishment," a concept that plays a central role in
3 If anything, the Double Jeopardy Clause ought to apply to a
broader set of proceedings than the Self-Incrimination
Clause. While the latter applies only in a "criminal case," the
former concerns any type of "jeopardy," presumably a larger class
of situations. See U. S. Const., Arndt. 5.
306
Opinion of STEVENS, J.
the jurisprudence of both the Excessive Fines Clause and the
Double Jeopardy Clause.
Halper laid down a general rule for
applying the Double Jeopardy Clause to civil proceedings:
"[A] civil sanction that cannot fairly be said solely to serve a
remedial purpose, but rather can only be explained as also serving
either retributive or deterrent purposes, is punishment, as we have
come to understand the term .... We therefore hold that under the
Double Jeopardy Clause a defendant who already has been punished in
a criminal prosecution may not be subjected to an additional civil
sanction to the extent that the second sanction may not fairly be
characterized as remedial, but only as a deterrent or retribution."
490 U. S., at 448-449.
In the past seven years, we have applied that same rule to three
types of sanctions: civil penalties, civil forfeitures, and
taxes.
The first was the subject of
Halper itself. The defendant
had been convicted for submitting 65 false claims for reimbursement
(seeking $12 for each, when the actual services rendered entitled
him to only $3) to a Medicare provider, and sentenced to
imprisonment for two years and a $5,000 fine. The Government then
brought a civil action against him for the same offenses. The
penalty for violating the civil falseclaims statute consisted of
double the Government's damages plus court costs and a fixed fine
of $2,000 per false claim. See
id., at 438. Accordingly, the
Government sought a penalty of $130,000, although the defendant's
fraud had caused an actual loss of only $585. Applying the
definition of "punishment" given above, the Court first held that
the fixed $2,000 fine served a remedial purpose because it was
designed to compensate the Government "roughly" for the costs of
law enforcement and investigation.
Id., at 445. Despite
finding that the fine was not by nature punitive, the
307
Court went on to consider whether the sanction "as applied in
the individual case,"
id., at 448, amounted to punishment.
It answered that question in the affirmative, for the applied
sanction created a "tremendous disparity" with the amount of harm
the defendant actually caused.
Id., at 452. The Court
explained that, as a rule, a fixed penalty that would otherwise
serve remedial ends could still punish the defendant if the imposed
amount was out of all proportion to the damage done.4
The second category of sanctions-civil forfeitures-was the
subject of
Austin. In that case, the Government sought to
forfeit the petitioner's mobile home and auto body shop as
instrumentalities of the drug trade under 21 U. s. C. §§ 881(a)(4)
and (a)(7) because he had sold cocaine there. Applying
Halper's definition of punishment, see 509 U. S., at 610,
621, we held that §§881(a)(4) and (a)(7) must be considered to
qualify as such, partly because forfeitures have historically been
understood as punishment and more importantly because no remedial
purpose underlay the sanction the statute created. Merely
compensating the Government for its costs, as in
Halper,
could not justify the forfeiture scheme because "[t]he value of the
conveyances and real property forfeitable under §§881(a)(4) and
(a)(7) ... can vary so dramatically that any relationship between
the Government's actual costs and the amount of the sanction is
merely coincidental." 509 U. S., at 622, n. 14. Accordingly, we
held that any forfeiture was subject to the constraints of the
Excessive Fines Clause of the Eighth Amendment.
4 The Court stated the full rule as follows: "Where a defendant
previously has sustained a criminal penalty and the civil penalty
sought in the subsequent proceeding bears no rational relation to
the goal of compensating the Government for its loss, but rather
appears to qualify as 'punishment' in the plain meaning of the
word, then the defendant is entitled to an accounting of the
Government's damages and costs to determine if the penalty sought
in fact constitutes a second punishment."
United States v.
Halper, 490 U.
S. 435, 449-450 (1989).
308
Opinion of STEVENS, J.
The Court expends a great deal of effort attempting to
distinguish
Austin away as purely an excessive fines case.
The Court states, for example, that it is "difficult to see" how
one would apply the "rule of
Halper" to a civil forfeiture
such as was present in
Austin. Ante, at 283. But the Court
confiates the two different rules that
Halper announced. As
discussed above,
Austin expressly quoted
Halper and
followed its general rule that a sanction should be characterized
as "punishment" if it serves any punitive end. See 509 U. S., at
610, 621. It relegated to a footnote
Halper's narrower
rule-the one for the "rare case," which requires an accounting of
the Government's damages and costs-because it had already decided
that the statute was of a punitive character. 509 U. S., at 622, n.
14. That approach was perfectly appropriate. There is no need to
determine whether a statute that is punitive by design has a
punitive effect when applied in the individual case.
Halper
is entirely consistent with
Austin, because it determined
first that the sanction there generally did
not have a
punitive character before it considered whether some applications
might be punitive nonetheless.5
The majority implies that
Austin's "categorical approach"
is somehow suspect as an application of double jeopardy
jurisprudence,
ante, at 286-287, but
Kurth Ranch
definitively refutes that suggestion. The sanction there was a tax
imposed on marijuana and applied to a taxpayer who had already been
prosecuted for ownership of the drugs sought to be taxed. Again
applying
Halper's definition of punishment, see 511 U. S.,
at 779-780, we considered the nature of the tax, focusing on
several unusual features that distinguished it from ordinary
revenue-raising provisions, and con-
5 Even if
Austin had not followed
Halper's rule
for defining punishment, it would make little sense to say that
forfeiture might be punishment "for the purposes of" the Excessive
Fines Clause but not the Double Jeopardy Clause. It is difficult to
imagine why the Framers of the two Amendments would have required a
particular sanction not to be excessive, but would have allowed it
to be imposed multiple times for the same offense.
309
cluded that it was motivated by a "penal and prohibitory
intent."
Id., at 781 (internal quotation marks omitted).6 On
that basis, we held that imposition of the tax after criminal
prosecution of the taxpayer violated double jeopardy. The approach
taken was thus identical to that followed in
Austin. By
considering and rejecting each of the asserted "remedial" interests
served by the sanction, we reasoned that the tax had an
"unmistakable punitive character" that rendered it punishment in
all of its applications. 511 U. S., at 783.
The claim that
Halper's "case-by-case" method is
"impossible to apply" to forfeitures or taxes,
ante, at 284,
285, thus misses the point. It is true that since fixed penalties
can serve only one remedial end (compensation), it is easy to
determine whether a particular fine is punitive in application.
Forfeitures and taxes, generally speaking, may have a number of
remedial rationales. But to decide if a sanction is punitive, one
need only examine each claimed remedial interest and determine
whether the sanction actually promotes it. Many of our cases have
followed just such an approach, regardless of whether any
nonpunitive purpose can be "quantif[ied],"
ante, at 284.
See,
e. g., Austin; One 1958 Plymouth Sedan. The majority
itself embarks on such an inquiry in Part II-C of its opinion.
Furthermore, even in the context of forfeitures and taxes, nothing
prevents a court from deciding that although a sanction is designed
to be remedial, its application in a particular case is so extreme
as to constitute punishment.
Austin, 509 U. S., at 608, n.
4.7
6 Specifically, the tax was conditioned on the commission of a
crime, 511 U. S., at 781, and it was levied on goods that the
taxpayer did not own or possess at the time of imposition,
id., at 783.
7 It is true, as the Court asserts, that a fine will only be
considered "excessive" if it is disproportionate to any remedial
goal. But
Austin established that a forfeiture can also be
excessive, although it could serve multiple remedial goals. Hence,
I do not understand why the Court maintains that
Austin did
not prove that forfeitures are punitive. In order to count as a
"fine" in the first place, a forfeiture must be capable of being
punitive. A penalty that is not a "fine" cannot violate the
Excessive Fines
310
Opinion of STEVENS, J.
In reaching the conclusion that the civil forfeiture at issue
yielded punishment, the
Austin Court surveyed the history of
civil forfeitures at some length. That history is replete with
expressions of the idea that forfeitures constitute punishment.8
But it was not necessary in
Austin, strictly speaking, to
decide that all
in rem forfeitures are punitive. As JUSTICE
SCALIA emphasized in his separate opinion, it was only necessary to
characterize the specific
"in rem forfeiture in
this
case."
Id., at 626 (opinion concurring in part and
concurring in judgment). The punitive nature of §§ 881(a)(4) and
(a)(7) was accepted by every Member of the
Austin Court. The
majority offered several reasons for its holding. The applicable
provisions expressly provided an "innocent owner" defense,
indicating that culpability was a requirement for forfeiture.
Further, the provisions tied forfeiture directly to the commission
of narcotics offenses.
Id., at 620. Finally, the legislative
history indicated that the provisions were necessary because
traditional criminal sanctions were" 'inadequate to deter or
punish.' "
Ibid. (quoting S. Rep. No. 98-225, p. 191
(1983)). In sum, it was unanimously agreed that "[s]tatutory
forfeitures under § 881(a) are certainly
payment (in kind),
to a sovereign as
punishment for an
offense."
509 U. S., at 626-627 (SCALIA, J., concurring in part and
concurring in judgment) (emphasis in original).9
Remarkably, the Court today stands
Austin on its heada
decision rendered only three years ago, with unanimity on
Clause, no matter how "excessive." See Browning-Ferris
Industries of Vt., Inc. v. Kelco Disposal, Inc.,
492 U. S. 257 (1989).
8See,
e. g., Peisch v.
Ware, 4 Cranch 347, 364
(1808) (Marshall, C. J.) ("[T]he act punishes the owner with a
forfeiture of the goods");
J. W Goldsmith, Jr.-Grant
Co. v.
United States, 254 U. S. 505, 510-511
(1921) (the owner of an automobile confiscated for its use in
transporting liquor during Prohibition is "'properly punished by
such forfeiture''') (quoting 1 W. Blackstone, Commentaries
*301).
9 Just this Term, we have reiterated this conclusion. See
Libretti v.
United States, 516 U. S. 29, 39 (1995)
("[T]he
in rem civil forfeiture authorized by 21 U. S. C. §§
881 (a)(4) and (a)(7) is punitive in nature").
311
the pertinent points-and concludes that § 881(a)(7) is remedial
rather than punitive in character. Every reason
Austin gave
for treating § 881(a)(7) as punitive-the Court rejects or ignores.
Every reason the Court provides for treating § 881(a)(7) as
remedial-Austin rebuffed. The Court claims that its
conclusion is consistent with decisions reviewing statutes
"indistinguishable" "in most significant respects" from §
881(a)(7),
ante, at 290, but ignores the fact that
Austin reached the opposite conclusion as to the
identical statute under review here.
First, the Court supposes that forfeiture of respondent's house
is remedial in nature because it was an instrumentality of a drug
crime. It is perfectly conceivable that certain kinds of
instruments used in the commission of crimes could be forfeited for
remedial purposes. Items whose principal use is illegal-for
example, the distillery in
Various Itemsmight be thus
forfeitable. But it is difficult to understand how a house in which
marijuana was found helped to substantially "facilitate" a
narcotics offense, or how forfeiture of that house will
meaningfully thwart the drug trade. In
Austin, we rejected
the argument that a mobile home and body shop were "instruments" of
drug trafficking simply because marijuana was sold out of them. I
see no basis for a distinction here.10
Second, the Court claims that the statute serves the purpose of
deterrence, which helps to show that it is remedial rather than
punitive in character.
Ante, at 292. That statement cannot
be squared with our precedents.
Halper ex-
10 The Court also speculates that nuisance abatement may provide
a remedial interest.
Ante, at 290-291. The abatement theory
was questionable enough in
Bennis v.
Michigan,
516 U. S. 442
(1996), where under the State's theory the same acts might or might
not turn an ordinary automobile into a nuisance, depending on the
neighborhood in which the car happened to be parked. See
id., at 464, n. 9 (STEVENS, J., dissenting). Here, there is
no argument that Ursery's home constituted some kind of a
nuisance.
312
Opinion of STEVENS, J.
pressly held, and
Austin and
Kurth Ranch
reaffirmed, that "a civil sanction that cannot fairly be said
solely to serve a remedial purpose, but rather can only be
explained as also serving either retributive or deterrent purposes,
is punishment" for purposes of the Double Jeopardy Clause. 490 U.
S., at 448. "'Retribution and deterrence are
not legitimate
nonpunitive governmental objectives.'" Ibid. (emphasis added)
(quoting
Bell v.
Wolfish, 441 U. S. 520, 539, n. 20
(1979)). To say otherwise is to renounce
Halper's central
holding. If deterrence is a legitimate remedial rationale "distinct
from" any punitive purpose,
ante, at 292, then the $130,000
fine in
Halper could not be condemned as excessive because
it plainly served a powerful deterrent function. It was a
premise of the Court's analysis in that case that deterrence
could not justify a penal sanction. As in
Bennis v.
Michigan, where the Court first announced this new view of
deterrence, it simply ignores
Halper without explanation or
comment. See 516 U. S., at 468-469 (STEVENS, J., dissenting).
For good measure, the Court also rejects two considerations that
persuaded the majority in
Austin to find 21 U. S. C. §
881(a)(7) a punitive statute. The Court first asserts that the
statute contains no scienter requirement and property may be
forfeited summarily if no one files claim to it.
Ante, at
291-292 (citing 19 U. S. C. § 1609). Property that is not claimed,
however, is considered abandoned; it proves nothing that the
Government is able to forfeit property that no one owns. Any time
the Government seeks to forfeit claimed property, it must prove
that the claimant is culpable, for the statute contains an express
"innocent owner" exception. Today the Court finds the structure of
the statute irrelevant, but
Austin said that the exemption
for innocent owners "makes [the statute] look more like
punishment." 509 U. S., at 619. In
United States v.
United States Coin &
Currency, 401 U. S. 715 (1971), the
Court
313
found a forfeiture statute punitive on the basis of
discretionary authority granted to the Secretary of the
Treasury to remit property to innocent owners that was provided by
a
different statute.
Finally, the Court announces that the fact that the statute is
"tied to criminal activity" is insufficient to render it punitive.
Ante, at 292.
Austin expressly relied on Congress'
decision to "tie forfeiture directly to the commission of drug
offenses" as evidence that it was intended to be punitive. 509 U.
S., at 620.11
The recurrent theme of the Court's opinion is that there is some
mystical difference between
in rem and
in personam
proceedings, such that only the latter can give rise to double
jeopardy concerns. The Court claims that "[s]ince at least
Various Items," we have drawn this distinction for purposes
of applying relevant constitutional provisions.
Ante, at
283. That statement, however, is incorrect. We have repeatedly
rejected the idea that the nature of the court's jurisdiction has
any bearing on the constitutional protections that apply at a
proceeding before it. "From the relevant constitutional standpoint,
there is no difference between a man who 'forfeits' $8,674 because
he has used the money in illegal gambling activities and a man who
pays a 'criminal fine' of $8,674 as a result of the same course of
conduct."
Coin &
Currency, 401 U. S., at 718. See
also
One 1958
Plymouth Sedan, 380 U. S., at 701, n.
11;
Boyd, 116 U. S., at 638.12 Most re-
11 Apparently recognizing the difficulty of reconciling its
analysis of § 881(a)(7) with
Austin's, the Court admits that
the statute "perhaps ha[s] certain punitive aspects," but finds
them outweighed by its "important nonpunitive goals."
Ante,
at 290. Again, that approach simply repudiates
Halper, which
defined as punishment for purposes of the Double Jeopardy Clause
any sanction that "cannot fairly be said
solely to serve a
remedial purpose." 490 U. S., at 448 (emphasis added).
12 "[A]lthough the owner of goods, sought to be forfeited by a
proceeding
in rem, is not the nominal party, he is,
nevertheless, the substantial party to the suit; he certainly is
so, after making claim and defence; and, in a
314
Opinion of STEVENS, J.
cently, in our application of
Halper's definition of
punishment, we stated that "[w]e do not understand the Government
to rely separately on the technical distinction between proceedings
in rem and proceedings
in personam, but we note that
any such reliance would be misplaced."
Austin, 509 U. S., at
615, n. 9.13
The notion that the label attached to the proceeding is
dispositive runs contrary to the trend of our recent cases. In
Halper we stated that "the labels 'criminal' and 'civil' are
not of paramount importance" in determining whether a proceeding
punishes an individual. 490 U. S., at 447. In
Kurth Ranch we
held that the Double Jeopardy Clause applies to punitive
proceedings even if they are labeled a tax. Indeed, in reaching
that conclusion, we followed a 1931 decision that noted that a tax
statute might be considered punitive for double jeopardy
purposes.14 It is thus far too late in the day to contend that the
label placed on a punitive proceeding determines whether it is
covered by the Double Jeopardy Clause.
case like the present, he is entitled to all the privileges
which appertain to a person who is prosecuted for a forfeiture of
his property by reason of committing a criminal offence."
Boyd, 116 U. S., at 638.
13 The Court suggests that the decision in
One Lot Emerald
Cut Stones v.
United States, 409 U. S. 232 (1972),
rested on the fact that the second penalty was
"in personam,"
ante, at 276, but the opinion of the Court did not even mention
that term. In
United States v.
One Assortment of 89
Firearms, 465 U.
S. 354 (1984), the Court discussed the fact that the forfeiture
was
in rem, but only for the rather obvious point that
Congress intended the proceeding to be "civil."
14 "That case,
United States v.
La Franca,
282 U. S. 568
(1931), observed that the words 'tax' and 'penalty' 'are not
interchangeable, one for the other' and that 'if an exaction be
clearly a penalty it cannot be converted into a tax by the simple
expedient of calling it such.'
Id., at 572. See also
Lipke v.
Lederer, 259 U. S. 557, 561 (1922)
('The mere use of the word "tax" in an act primarily designed to
define and suppress crime is not enough to show that within the
true intendment of the term a tax was laid')."
Department of
Revenue of Mont. v.
Kurth Ranch, 511 U. S. 767, 777, n. 15
(1994).
315
The pedantic distinction between
in rem and
in
personam actions is ultimately only a cover for the real basis
for the Court's decision: the idea that the property, not the
owner, is being "punished" for offenses of which it is "guilty."
Although the Court prefers not to rely on this notorious fiction
too blatantly, its repeated citations to
Various Items make
clear that the Court believes respondent's home was "guilty" of the
drug offenses with which he was charged. See
ante, at 283.
On that rationale, of course, the case is easy. The
owner of
the property is not being punished when the Government confiscates
it, just the
property. The same sleight-of-hand would have
worked in
Austin, too: The owner of the property is not
being excessively fined, just the property itself. Despite the
Government's heavy reliance on that fiction in
Austin, we
did not allow it to stand in the way of our holding that the
seizure of property may punish the owner.15
Even if the point had not been settled by prior decisions,
common sense would dictate the result in this case. There is simply
no rational basis for characterizing the seizure of this
respondent's home as anything other than punishment for his crime.
The house was neither proceeds nor contraband and its value had no
relation to the Government's authority to seize it. Under the
controlling statute an essential predicate for the forfeiture was
proof that respondent
15 Long ago the Court cast doubt on this fiction:
"But where the owner of the property has been admitted as a
claimant, we cannot see the force of this distinction; nor can we
assent to the proposition that the proceeding is not, in effect, a
proceeding against the owner of the property, as well as against
the goods; for it is his breach of the laws which has to be proved
to establish the forfeiture, and it is his property which is sought
to be forfeited .... In the words of a great judge, 'Goods, as
goods, cannot offend, forfeit, unlade, pay duties, or the like, but
men whose goods they are.'*
"* ... Vaughan, C. J., in
Sheppard v.
Gosnold,
Vaugh. 159, 172, approved by Ch. Baron Parker in
Mitchell qui
tam v.
Torup, Parker, 227, 236."
Boyd v.
United States, 116 U. S., at 637, and n.
316
Opinion of STEVENS, J.
had used the property in connection with the commission of a
crime. The forfeiture of this property was unquestionably "a
penalty that had absolutely no correlation to any damages sustained
by society or to the cost of enforcing the law."
United
States v.
Ward, 448 U. S., at 254. As we unanimously
recognized in
Halper, formalistic distinctions that obscure
the obvious practical consequences of governmental action disserve
the "'humane interests'" protected by the Double Jeopardy Clause.
490 U. S., at 447, quoting
United States ex rel. Marcus v.
Hess, 317 U.
S. 537, 554 (1943) (Frankfurter, J., concurring). Fidelity to
both reason and precedent dictates the conclusion that
this
forfeiture was "punishment" for purposes of the Double Jeopardy
Clause.16
II
The Government also argues that the word "jeopardy" refers only
to a criminal proceeding, and that our cases precluding two
punishments for the same offense apply only to situations in which
the first punishment was imposed after conviction of a crime. In
this case the civil forfeiture proceeding antedated the filing of
the criminal charge. Since the civil case was not a "jeopardy," the
argument runs, the criminal case was the first, rather than the
second, jeopardy. This argument is foreclosed by our decisions in
Halper and
Kurth Ranch.
Although the point was not expressly mentioned in either case,
both holdings necessarily rested on the assumption that the civil
proceeding in which the second punishment was imposed was a
"jeopardy" within the meaning of the Fifth
16 As I have emphasized, the determination that 21 U. S. C. §
881(a)(7) is a punitive statute is perfectly consistent with a
conclusion that other types of sanctions are remedial. For example,
I would expect that many types of administrative licensing
sanctions are remedial in the relevant sense of our cases. See
Comment, Administrative Driver's License Suspension: A Remedial
Tool That is Not in Jeopardy, 45 Am. U. L. Rev. 1151 (1996)
(arguing that suspension of a driver's license after conviction for
drunken driving is a remedial sanction under the logic of
Halper, Austin, and
Kurth Ranch).
317
Amendment. Otherwise there would have been no basis for
concluding that the defendants had been "twice put in jeopardy" as
the text of the Clause forbids. The prohibition against two such
proceedings cannot depend on the order in which they are filed. Cf.
Kurth Ranch, 511 U. S., at 804 (SCALIA, J., dissenting)
("[I]f there is a constitutional prohibition on multiple
punishments, the order of punishment cannot possibly make any
difference").
III
The Government's third argument is that the civil forfeiture and
the criminal proceeding did not involve the same offense. The
Government relies principally on
Blockburger v.
United
States, 284 U. S.
299 (1932), in which we held that for double jeopardy purposes
two statutes define different offenses if "each provision requires
proof of a fact which the other does not."
Id., at 304. The
application of that test would avoid any double jeopardy objection
to a forfeiture followed by a prosecution-or a prosecution followed
by a forfeiture-whenever the seizure could be supported without
proof that the defendant committed a crime and the conviction did
not require proof that the forfeited property had been used
illegally.
Thus, if instead of forfeiting Ursery's home the Government had
decided to forfeit his neighbor's property where the marijuana was
grown, the
Blockburger rule would avoid any double jeopardy
objection to either the forfeiture or respondent's prosecution. In
that scenario, the forfeiture could be supported without proof that
Ursery violated the law and Ursery could be convicted without proof
that he harvested the marijuana on property owned by someone
else.
The rule does, however, bar this conviction because the elements
that the Government was required to allege and prove to sustain the
forfeiture of Ursery's home under § 881(a)(7) included each of the
elements of the offense for which he was later convicted. As in
Illinois v.
Vitale, 447 U. S. 410 (1980), and
Harris v.
Oklahoma, 433 U. S. 682
318
Opinion of STEVENS, J.
(1977) (per curiam), the fact that the "greater" offense
(here, the forfeiture) could have been proved by means of a
different "lesser" offense does not negate the fact that in this
instance it
was proved by resort to the same elements as the
criminal offense. This conclusion also accords with our oftrepeated
understanding of the relationship between a civil forfeiture and
the underlying offense. See,
e. g., One 1958 Plymouth Sedan,
380 U. S., at 701 ("[T]he forfeiture is clearly a penalty for the
criminal offense");
Boyd, 116 U. S., at 634 (describing
sanction as "proceedings instituted for the purpose of declaring
the forfeiture of a man's property by reason of offences committed
by him"). Accordingly, under the analysis we unanimously applied
most recently in
Rutledge v.
United States, 517 U. S. 292 (1996), the
criminal charge was a lesser included offense of the forfeiture and
therefore constituted a second jeopardy.
JUSTICE KENNEDY joins the Court's opinion and therefore ought to
agree with the majority that civil forfeitures do not constitute
punishment for purposes of the Double Jeopardy Clause. In fact,
however, he recognizes that "[f]orfeiture ... punishes an owner by
taking property involved in a crime."
Ante, at 295. His real
objection is that a forfeiture does not punish for the same offense
as the underlying criminal conviction.
JUSTICE KENNEDY theorizes that civil forfeiture punishes for the
misuse of property.
Ante, at 294. It might be true that some
forfeiture statutes are best described as creating a sanction for
misuse, as opposed to (but perhaps in addition to) a sanction for
the substantive criminal offense. But, again, this statute is not
structured that way. Section 881(a)(7) incorporates the criminal
offense itself as the predicate for the forfeiture. See 21 U. S. C.
§ 881(a)(7) (subjecting to forfeiture "[a]ll real property ...
which is used ... to commit ... a violation of this subchapter
punishable by more than one year's imprisonment"). Furthermore, the
innocent owner exemption in the same subsection provides that
"no
319
property shall be forfeited under this paragraph ...
by
reason of any act or omission established by that owner to have
been committed or omitted without the knowledge or consent of that
owner."
Ibid. (emphasis added). In
Austin, we held
that the exemption revealed a "congressional intent to punish only
those involved in drug trafficking" because" 'the traditional
criminal sanctions ... are inadequate to deter or punish the
enormously profitable trade in dangerous drugs.' " 509 U. S., at
619, 620 (quoting S. Rep. No. 98-225, at 191). See also 509 U. S.,
at 628 (SCALIA, J., concurring in part and concurring in judgment)
(suggesting that proportionality of a forfeiture be measured by the
relationship of the property to the underlying offense). Again,
these statements accord with common sense: Forfeiting respondent's
house punished him for the same narcotics violations as his
criminal conviction.
IV
The final argument advanced by the Government is that the
forfeiture and the criminal conviction should be treated as having
occurred in the same proceeding because both were commenced before
a final judgment was entered in either. Emphasizing the fact that
the Double Jeopardy Clause, and particularly the prohibition
against multiple punishments for the same offense, protects the
defendant's legitimate expectation of finality in the original
sentence, the Government maintains that such an expectation could
not arise until after one proceeding was completed. Moreover, it
argues, the civil and criminal sanctions "cannot be (and never have
been) joined together in a single trial under our system of
justice." Brief for United States 55.
This argument is unpersuasive because it is simply inaccurate to
describe two separate proceedings as one.17 I also cannot agree
with the Government's view that there is any
17 In
Kurth Ranch we explicitly noted that the tax
assessment and the prosecution were "separate legal proceedings."
511 U. S., at 772.
320
Opinion of STEVENS, J.
procedural obstacle to including a punitive forfeiture in the
final judgment entered in a criminal case. The sentencing
proceeding does not commence until after the defendant has been
found guilty, and I do not see why that proceeding should not
encompass all of the punitive sanctions that are warranted by the
conviction. Indeed, a draft of a proposed amendment to the Federal
Rules of Criminal Procedure envisions precisely that procedure. See
Fed. Rule Crim. Proc. 32(d)(2) (eff. Dec. 1, 1996).18 If, as we
have already determined, the "civil" forfeitures pursuant to §
881(a)(7) are in fact punitive, a single judgment encompassing the
entire punishment for the defendant's offense is precisely what the
Double Jeopardy Clause requires. Congress' decision to create novel
and additional penalties should not be permitted to eviscerate the
protection against governmental overreaching embodied in the Double
Jeopardy Clause. That protection has far deeper roots than the
relatively recent enactments that have so dramatically expanded the
sovereign's power to forfeit private property.
***
One final example may illustrate the depth of my concern that
the Court's treatment of our cases has cut deeply into a guarantee
deemed fundamental by the Founders. The Court relies heavily on a
few early decisions that involved the forfeiture of vessels whose
entire mission was unlawful and on the Prohibition-era precedent
sustaining the forfeiture of a distillery-a property that served no
purpose other than the manufacture of illegal spirits. Notably none
of those early cases involved the forfeiture of a home as a
form
18 According to the Rule, once there is a finding that property
is subject to a criminal forfeiture, the court may enter a
preliminary forfeiture order. The order also authorizes the
Attorney General to seize the property, conduct any necessary
discovery, and begin proceedings to protect the rights of third
parties. The order of forfeiture becomes a part of the sentence and
is included in the judgment.
321
of punishment for misconduct that occurred therein. Consider how
drastic the remedy would have been if Congress in 1931 had
authorized the forfeiture of every home in which alcoholic
beverages were consumed. Under the Court's reasoning, I fear that
the label "civil," or perhaps
"in rem," would have been
sufficient to avoid characterizing such forfeitures as "punitive"
for purposes of the Double Jeopardy Clause. Our recent decisions in
Halper, Austin, and
Kurth Ranch dictate a far
different conclusion. I remain persuaded that those cases were
correctly decided and should be followed today.
Accordingly, I respectfully dissent from the judgment in No.
95-345.
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