2. See United States v. 92 Buena Vista Ave., 507 U.S. 111, 119 (1993) (plurality opinion) (noting that First Congress enacted criminal forfeiture statutes authorizing seizure of ships utilized in customs offenses); C.J. Hendry Co. v. Moore, 318 U.S. 133, 139 (1943) (articulating that Colonies enforced forfeiture statutes before adoption of Constitution).

3. See United States v. James Daniel Good Real Property, 510 U.S. 43, 81 (1993) (Thomas, J., concurring in part, dissenting in part) ("[S]ince the Civil War [the Supreme Court has] upheld statutes allowing for the civil forfeiture of real property."); 1 DAVID B. SMITH, PROSECUTION AND DEFENSE OF FORFEITURE CASE . 2.01, at 2-2 (tracing historical uses of civil forfeiture laws); Leach & Malcolm, supra note 1, at 248 (analyzing history of forfeiture laws); Franze, supra note 1, at 375 (setting forth early uses of forfeiture statutes).

4. See Buena Vista Ave., 507 U.S. at 1190 (plurality opinion) (describing modern forfeiture as significant expansion of governmental power); Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 634 (1989) ("Forfeiture provisions are powerful weapons in the war on crime.").

5. 21 U.S.C. . 881 (1994).

6. See Buena Vista Ave., 507 U.S. at 119.

7. See Pub. L. No. 91-511, . 511, 84 Stat. 1236, 1276 (1970); see also 116 CONG. REC. 977-78 (1970) (statement of Sen. Dodd) (emphasizing that Comprehensive Drug Abuse and Prevention Act was "strictly and entirely a law enforcement measure . . . designed to crack down hard on the narcotics pusher and the illegal diverters of pep pills and goof balls"). Ironically, in all of the debates, no one criticized the forfeiture provisions. The only time forfeiture was mentioned was before the final vote. Senator Hruska, while summarizing the bill, remarked that the forfeiture provisions "were for the most part carried over from existing law" and that the provisions would take the "much needed mobility" away from drug traffickers. Id. at 1665 (statement of Sen. Hruska). The bill passed the Senate with a vote of 82-0. See id. at 1671.

8. See 21 U.S.C. . 881(a)(4). For purposes of this Note, forfeiture under . 881(a)(4) will be referred to as "forfeiture of facilitating property." Section 881(a)(4) provides in relevant part:

(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them:

. . . .

(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1), (2), or (9).

Id.

9. See id. . 881(a)(7). For purposes of this Note, forfeiture under . 881(a)(7) also will be referred to as "forfeiture of facilitating property." Subsections 881(a)(4) and (a)(7) will not be distinguished because they both involve property that facilitates illegal narcotics activity. The only difference between the two subsections is the types of property that can constitute facilitating property. Section 881(a)(7) provides in relevant part:

(a) 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 . . . .

Id. Congress included . 881(a)(7) as part of the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, . 306(a), . 511(a)(7), 98 Stat. 1837, 2050. Forfeitures under . 881(a)(7) most often occur when a home is used to have meetings to arrange drug transactions or the transactions actually take place in the home. See Franze, supra note 1, at 381 (citing United States v. 19 & 25 Castle St., 31 F.3d 35, 37 (2d Cir. 1994)).

10. In 1984, Congress reviewed a report of the General Accounting Office that found that asset forfeiture was not being pursued aggressively under the Comprehensive Drug Abuse Prevention and Control Act. See S. REP. NO. 98-225, at 191 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3374.

11. Congress enacted 21 U.S.C. . 881(a)(6) as part of the Psychotropic Substances Act of 1978, Pub. L. No. 95-633, . 301(a), 92 Stat. 3768, 3777. Congress enacted 21 U.S.C. . 881(a)(7) as part of the Comprehensive Crime Control Act of 1984. See id. . 306(a).

12. See 21 U.S.C. . 881(a)(6). For the purposes of this Note, forfeitures pursuant to . 881 (a)(6) will be referred to as "forfeiture of proceeds." Section 881 (a)(6) provides in relevant part:

(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them:

. . . .

(6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter.

Id. This section allows for the forfeiture of property in three situations. First, forfeiture cases under the "exchange" provision usually involve instances when the only evidence of an exchange is the proximity of large quantities of money discovered near drugs or drug paraphernalia. See id.; Franze, supra note 1, at 379 (discussing situations where forfeitures involving proceeds arise). Other instances often involve a person carrying a large sum of money and acting in a suspicious manner. See id. Second, forfeiture under the "proceeds" provision allows for the forfeiture of all proceeds traceable to an illegal drug exchange. See id. The term "proceeds" is used in this section to mean property derived from money or other things of value that are directly exchanged for drugs. See id. at 379 n.55. If probable cause exists that a home or any other property was purchased with money obtained as "proceeds" from illegal drug transactions, then the property may be forfeited to the government. See id. Finally, all monies, negotiable instruments, and securities exchanged or intended to be exchanged for drugs are subject to forfeiture under this provision. See 21 U.S.C. . 881(a)(6).

13. The Office of the United States Attorney General has reported that revenue derived from forfeitures is a source of invaluable funds that are reinvested into federal, state, local, and international law enforcement agencies to fight the war against drugs. See 1994 DEP'T OF JUSTICE ASSET FORFEITURE PROGRAM ANN. REP. 18 (1994). More than $3.8 billion in illegal cash and proceeds from the sale of property have been deposited into the Fund since 1985. See id. at 19. Approximately $1.4 billion has been shared by the federal government with state and local law enforcement agencies. See id. The Justice Department also shares drug seizure funds with foreign countries that assist in U.S. law enforcement activities. See id. at 18-20. Sharing the funds with foreign governments secures the ongoing cooperation necessary for effective law enforcement. See id.

14. See Franze, supra note 1, at 376 (stating that . 881 is the "most criticized statute to combat the war on drugs").

15. 116 S. Ct. 2135 (1996).

16. See United States v. Ursery, 116 S. Ct. 2135, 2142 (1996).

17. See U.S. CONST. amend. V.

18. See Ursery, 116 S. Ct. at 2149 (emphasizing traditional understanding that civil forfeiture does not constitute punishment for purpose of Double Jeopardy Clause).

19. See id. at 2142.

20. See id.

21. See Rory K. Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 FORDHAM L. REV. 355, 364 & n.39 (1996) (discussing large budget increases for FBI, DEA, and Customs, as well as increase in prosecutorial resources); Greg Hallon, Note, After the Federalization Binge: A Civil Liberties Hangover, 31 HARV. C.R.-C.L. L. REV. 499, 502 (1996) ("Asset forfeiture has given U.S. attorneys and federal law enforcement agencies enhanced access to resources while simultaneously reducing the resources available to defendants.").

22. 282 U.S. 577 (1931).

23. Various Items of Personal Property v. United States, 282 U.S. 577, 581 (1931); see also Libretti v. United States, 116 S. Ct. 356, 363 (1995) (discussing in rem civil forfeiture); United States v. James Daniel Good Real Property, 510 U.S. 43, 80-81 (1993) (Thomas, J., concurring in part and dissenting in part) (determining that seizure of property at issue is prerequisite to initiation of in rem civil forfeiture proceeding); cf. Austin v. United States, 509 U.S. 602, 622 (1993) (determining Eighth Amendment's excessive fines clause applies to in rem civil forfeiture proceedings).

24. Mary M. Cheh, Can Something This Easy, Quick, and Profitable Also Be Fair? Runaway Civil Forfeiture Stumbles on the Constitution, 39 N.Y.L. SCH. L. REV. 1, 5 n.28 (1994); see also Alexander v. United States, 509 U.S. 544, 558 (1993) (determining that in personam criminal forfeiture constitutes fine for Eighth Amendment purposes).

25. See Deborah J. Challenger, Note, Constitutional Law-Fourteenth Amendment Right to Due Process-Civil Forfeiture and Innocent Owners: Bennis v. Michigan, 116 S. Ct. 994 (1996), 64 TENN. L. REV. 195, 197 (1996) (discussing lack of constitutional protections in in rem proceedings).

26. See Various Items, 282 U.S. at 581 (noting in rem proceedings are against property); see also Steven L. Schwarcz & Alan E. Rothman, Civil Forfeiture: A Higher Form of Commercial Law?, 62 FORDHAM L. REV. 287, 291-93 (1993) (stating that theory behind civil forfeitures is that property is guilty of crime committed).

27. See William Carpenter, Reforming the Civil Drug Forfeiture Statutes: Analysis and Recommendations, 67 TEMP. L. REV. 1087, 1097 (1994).

28. See id. (asserting that effect of no culpability requirement is strict liability).

29. See Republic Nat'l Bank v. United States, 506 U.S. 80, 87 (1992) (stating that government has power to confiscate property in civil forfeiture actions upon showing of probable cause); United States v. One 1978 Piper Cherokee Aircraft, 91 F.3d 1204, 1208 (9th Cir. 1996) (holding that probable cause must exist before government institutes civil forfeiture action and that court will not consider post-filing evidence of probable cause); United States v. One Parcel of Real Property, 85 F.3d 985, 988 (2d Cir. 1996) (noting that probable cause allows for in rem seizure of property); United States v. Two Parcels of Real Property, 92 F.3d 1123, 1126 (9th Cir. 1996) (holding that government has burden to demonstrate probable cause that seized property was substantially connected to drug dealing); United States v. 9844 South Titan Court, 75 F.3d 1470, 1477 (10th Cir. 1996) ("In a . 881 forfeiture proceeding, the government bears the initial burden of showing probable cause that the property to be forfeited was used illegally."); Williams v. United States, No. 95-228, 1996 WL 117011, at *3 (7th Cir. Mar. 11, 1996) (unpublished order) (stating that government must demonstrate probable cause to believe property is traceable to drug proceeds); United States v. 15603 85th Ave. N., 933 F.2d 976, 979 (11th Cir. 1991) (explaining that government first must establish probable cause when seeking forfeiture under . 881).

30. See Republic Nat'l Bank, 506 U.S. at 87 (stating that burden shifts to claimants after government has established probable cause); United States v. All Right, Title & Interest In Real Property & Appurtenances, 77 F.3d 648, 657 (2d Cir. 1996) (holding that once government establishes probable cause, the burden shifts to claimant); 9844 South Titan Court, 75 F.3d at 1477 (explaining that burden shifts to claimants once government establishes probable cause).

Under . 881, an owner also may file a claim alleging that he did not know about the property's illegal use. This commonly is known as the "innocent owner" exception and is codified in many forfeiture statutes. See, e.g., CONN. GEN. STAT. . 54-36K (1995) (codifying innocent owner defense to forfeiture of automobile used in patronizing prostitute); FLA. STAT. ch. 932.704 (1996) (discussing policy of Florida to protect proprietary interests of innocent owners in forfeiture proceedings); MO. REV. STAT. . 513.617 (stating that "[t]he rights of an innocent owner are superior to any right or claim of the state or county"); see also One Parcel of Real Property, 85 F.3d at 988 (establishing "innocent owner" as affirmative defense to preponderance standard); Two Parcels of Real Property, 92 F.3d at 1129 (emphasizing that claimant, not government, has burden of demonstrating innocent ownership). "Innocent owners" are persons who entrust their property to another who, unbeknownst to the owner, uses the property illegally. See id. In Bennis v. Michigan, 116 S. Ct. 994 (1996), the Supreme Court held that although a Michigan forfeiture statute contained no innocent owner exception, it did not violate the Due Process Clause of the Fourteenth Amendment or the Takings Clause of the Fifth Amendment. See id. at 1001. Writing for the majority, Chief Justice Rehnquist determined that a culpability requirement was unnecessary for civil forfeiture statutes. See id. at 1000-01. The Court held that innocent owners could be held strictly liable for the uses made of their property. See id. at 998.

31. See United States v. Tanner, 61 F.3d 231, 233 (4th Cir. 1995) (stating that proof that property was used illegally must be demonstrated beyond a reasonable doubt in criminal forfeiture action); United States v. Pelullo, 14 F.3d 881, 904-06 (3d Cir. 1994) (articulating that in criminal forfeiture proceeding government must prove beyond reasonable doubt that property was involved in criminal activity); United States v. Elgersma, 929 F.2d 1538, 1548 (11th Cir. 1991) (concluding that "beyond a reasonable doubt" standard is proper in criminal forfeiture proceeding); Cheh, supra note 24, at 5 n.28 (reasoning that defendants in criminal forfeiture cases are afforded all rights recognized in criminal cases).

32. See David Osgood, Comment, Crime and Punishment and Punishment: Civil Forfeiture, Double Jeopardy, and the War on Drugs, 71 WASH. L. REV. 489, 490 (1996) (explaining that in criminal forfeitures, authorities first must prove defendant's guilt beyond reasonable doubt).

33. See Meredith S. Katz, Comment, Attorney-General of the State of New York v. One Green 1993 Four Door Chrysler: Does the Punishment Fit the Crime?, 12 TOURO L. REV. 715, 719-720 (1996) ("In recent history, civil forfeiture has been most commonly used as a device to combat the trafficking of illegal drugs.").

34. See Judd J. Balmer, Note, Civil Forfeiture Under 21 U.S.C. . 881 and the Eighth Amendment's Excessive Fines Clause, 38 ARIZ. L. REV. 999, 999-1000 (1996) ("A potent weapon in the judicial arsenal, civil forfeiture has emerged as a favored method for imposing significant economic sanctions against narcotics traffickers and for crippling drug-trading enterprises.").

35. See Stephen H. McClain, Note, Running the Gauntlet: An Assessment of the Double Jeopardy Implications of Criminally Prosecuting Drug Offenders and Pursuing Civil Forfeiture of Related Assets Under 21 U.S.C. . 881(a)(4), (6) and (7), 70 NOTRE DAME L. REV. 941, 942-43 (1995) (stating that government often initiates parallel civil forfeiture cases under . 881 after criminal conviction in order to use conviction to support motion for summary judgment in civil proceeding).

36. See id. at 943 (describing . 881 as powerful tool to prosecute drug offenders).

37. See U.S. CONST. amend. V.

38. Id.

39. See Witte v. United States, 115 S. Ct. 2199, 2210 (1995) (Stevens, J., concurring in part and dissenting in part) (discussing fundamental protections provided by Double Jeopardy Clause); Heath v. Alabama, 474 U.S. 82, 93 (1985) (articulating that Court always has understood Double Jeopardy Clause as providing fundamental protections); Bartkus v. Illinois, 359 U.S. 121, 151-52 (1959) (Black, J., dissenting) (stating that protection against double jeopardy dates back to Greek and Roman times).

40. See Benton v. Maryland, 395 U.S. 784, 794-96 (1969) (determining that guarantee against double jeopardy is "fundamental"). The Supreme Court has held that the Double Jeopardy Clause is applicable to the states through the Due Process Clause of the Fourteenth Amendment. See id. at 794. Benton overruled Palko v. Connecticut, 302 U.S. 319 (1937), which held that states could deny constitutional rights to their citizens if the totality of the circumstances did not deprive them of fundamental fairness. See id. at 328-29.

41. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969).

42. See Morris v. Mathews, 475 U.S. 237, 250 (1986) ("One of the purposes of the Double Jeopardy Clause is to promote finality."); Brown v. Ohio, 432 U.S. 137, 165 (1977) ("Where successive prosecutions are at stake, the [Double Jeopardy Clause] serves 'a constitutional policy of finality for the defendant's benefit.'" (quoting United States v. Jorn, 400 U.S. 470, 479 (1971) (plurality opinion))); see also David S. Rudstein, Civil Penalties and Multiple Punishment Under the Double Jeopardy Clause: Some Unanswered Questions, 46 OKLA. L. REV. 587, 589 (1993) (determining that need for finality of verdicts is fundamental principle behind Double Jeopardy Clause).

43. See Jones v. Thomas, 491 U.S. 376, 385 (1989); see also Crist v. Bretz, 437 U.S. 28, 33 (1978) (determining that primary purpose of double jeopardy guarantee is to preserve finality of judgments); Arizona v. Washington, 434 U.S. 497, 503 (1978) (holding that public interest in finality of judgments is so significant that even when acquittal was based on erroneous foundation defendant may not be retried); Brown, 432 U.S. at 165 (stating that Double Jeopardy Clause serves to promote finality of decisions); Jorn, 400 U.S. at 479 (plurality opinion) ("The Fifth Amendment's prohibition against placing a defendant 'twice in jeopardy' represents a constitutional policy of finality.").

44. See Jones, 491 U.S. at 392 (Scalia, J., dissenting); cf. Pennsylvania v. Goldhammer, 474 U.S. 28, 30-31 (1985) (per curiam) (determining that government can appeal criminal sentence in limited situations); United States v. DiFrancesco, 449 U.S. 117, 139 (1980) (holding that government may appeal criminal sentence when authorized by statute because statute gives notice that district court's sentence is not final); United States v. Martin Linen Supply Co., 430 U.S. 564, 569-70 (1977) (discussing limited situations in which government may appeal criminal conviction).

45. See Jennifer E. Dayok, Comment, Administrative Driver's License Suspension: A Remedial Tool That Is Not in Jeopardy, 45 AM. U. L. REV. 1151, 1160 (1996). For more on the issue of the prevention of government oppression, see WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE . 25.1(b) (2d ed. 1992) ("[T]he adverse consequences of . . . governmental oppression . . . are checked in several different ways by a double jeopardy clause aimed at preserving the 'finality' or 'integrity' of final judgments.").

46. See Ashe v. Swenson, 397 U.S. 436, 445 n.10 (1970) ("In more recent times, with the advent of specificity in draftsmanship and the extraordinary proliferation of overlapping and related statutory offenses, it became possible for prosecutors to spin out a startlingly numerous series of offenses from a single alleged criminal transaction."); Eric Loeb et al., Criminal Procedure Project, 83 GEO. L.J. 1037, 1051 (1995) (asserting that under complex modern criminal law, it is possible to be charged with multiple crimes for the same act or series of acts).

47. See Rutledge v. United States, 116 S. Ct. 1241, 1245 (1996) (discussing criteria for determining whether defendant was punished twice for "same offense" under Double Jeopardy Clause); Witte v. United States, 115 S. Ct. 2199, 2204 (1995) (determining that Double Jeopardy Clause protects against "'attempting a second time to punish criminally, for the same offense'" (quoting Helvering v. Mitchell, 303 U.S. 391, 399 (1938))); Department of Revenue v. Kurth Ranch, 114 S. Ct. 1937, 1941 n.1 (1994) ("The Double Jeopardy Clause protects against second prosecution for same offense."); Schiro v. Farley, 114 S. Ct. 783, 789 (1994) (recognizing that Double Jeopardy Clause protects against second prosecution for same offense after acquittal or conviction and against multiple punishments for same offense); Loeb et al., supra note 46, at 1051.

48. See Loeb et al., supra note 46, at 1051. Compare United States v. Mintz, 16 F.3d 1101, 1106 (10th Cir. 1994) (barring successive prosecutions for Kansas and Florida drug conspiracies because conspiracies were interdependent), and Davis v. Herring, 800 F.2d 513, 520 (5th Cir. 1986) (barring successive prosecutions of shooting into occupied building and murder because offenses constituted single act), with United States v. Beszborn, 21 F.3d 62, 68-69 (5th Cir. 1986) (holding that multiple prosecutions for conspiracy involving bank transactions and conspiracy to defraud United States were permissible because objects of two conspiracies differed), and Henry v. McFaul, 791 F.2d 48, 51 (6th Cir. 1986) (per curiam) (allowing successive prosecutions for reckless operation of motor vehicle and attempted murder because proof of different statutory elements is required), and United States v. Coachman, 752 F.2d 685, 692 (D.C. Cir. 1985) (allowing successive prosecutions for two contempt charges because separate contempts are punishable as separate offenses).

49. 284 U.S. 299, 304 (1932); see United States v. Dixon, 509 U.S. 688, 699-97 (1993) (determining that double jeopardy bars imposing multiple punishments or successive prosecution if the two offenses for which defendant is being tried or punished do not survive Blockburger's test); United States v. Felix, 503 U.S. 378, 388 (1992) (recognizing that Blockburger's test may bar subsequent prosecutions); Grady v. Corbin, 495 U.S. 508, 510 (1990) (applying Blockburger's test to determine whether subsequent prosecution was barred by Double Jeopardy Clause), overruled by United States v. Dixon, 509 U.S. 688 (1993).

50. See Blockburger v. United States, 284 U.S. 299, 304 (1932); see also Rutledge, 116 S. Ct. at 1243 (determining under Blockburger "whether each of the statutory provisions requires proof of a fact which the other does not"); Witte, 115 S. Ct. at 2204 (holding, under Blockburger's test, that indictment did not charge same offense to which petitioner previously had plead guilty); Dixon, 509 U.S. at 2856 (examining whether each offense contained statutory element not contained in other under Blockburger); Grady, 495 U.S. at 516 (1990) ("If application of [the Blockburger] test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred."); Brown v. Ohio, 432 U.S. 161, 166 (1977) (holding that Blockburger test is used to determine whether two offenses constitute same offense).

51. See Albernaz v. United States, 450 U.S. 333, 338 (1981); Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975). Although there may be a substantial overlap in the evidentiary showings for the two offenses, Blockburger's test still may be satisfied. See id.; see also Felix, 503 U.S. at 386 ("[M]ere overlap in proof between the prosecutions does not establish a double jeopardy violation."); Albernaz, 450 U.S. at 338 (determining that substantial overlap in proof does not violate double jeopardy). The Double Jeopardy Clause also protects against multiple prosecutions of lesser included offenses. See Payne v. Virginia, 468 U.S. 1062, 1062 (1984) (per curiam) (stating that double jeopardy bars prosecution of lesser included offenses); Illinois v. Vitale, 447 U.S. 410, 420-21 (1980) (holding that defendants cannot be tried subsequently for lesser included offense after conviction). A lesser included offense does not contain any elements beyond those of the greater offense. See Brown, 432 U.S. at 167 (finding that "joyriding" was lesser included offense within auto theft); Loeb et al., supra note 46, at 1054 (stating that lesser included offense is one that does not contain elements beyond greater offense). In determining what constitutes a lesser included offense, courts analyze only the statutory elements of the two offenses. See United States v. DeShaw, 974 F.2d 667, 671-72 (5th Cir. 1992) (finding that RICO conspiracy offense is not a lesser included offense of narcotics conspiracy offense); United States v. Cavanaugh, 948 F.2d 405, 415-16 (8th Cir. 1991) (analyzing statutory elements of assault resulting in serious bodily injury and assault resulting in death); Loeb et al., supra note 46, at 1054 (stating that courts will look to statutory elements rather than trial evidence to determine what is a lesser included offense).

52. 465 U.S. 354 (1984).

53. See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362 (1984).

54. 490 U.S. 435 (1989).

55. See United States v. Halper, 490 U.S. 435, 448-49 (1989).

56. 509 U.S. 602 (1993).

57. 114 S. Ct. 1937 (1994).

58. See Austin v. United States, 509 U.S. 602, 604 (1993) (holding that Excessive Fines Clause of Eighth Amendment applies to civil forfeiture).

59. See Department of Revenue v. Kurth Ranch, 114 S. Ct. 1937, 1948 (1994) (characterizing drug tax as punishment for double jeopardy purposes).

60. 465 U.S. 354 (1984).

61. See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362 (1984).

62. See id. at 355-56.

63. See id. at 356 (stating that pursuant to 18 U.S.C. . 924(d) (1968), the government instituted forfeiture action to seize firearms).

64. See id. at 362.

65. Id.

66. See id. at 363-64; United States v. Ward, 448 U.S. 242, 248-49 (1980) (stating that whether penalty is civil or criminal is matter of statutory construction).

67. 89 Firearms, 465 U.S. at 362 (quoting Ward, 448 U.S. at 248 (1980))(citations ommitted). The Court in 89 Firearms determined that, because Congress had created such distinctly civil procedures for the forfeitures, it had indicated that it intended a civil and not criminal sanction. See id. at 363. The Court also determined that the statute furthered broad remedial aims because its purpose was to keep dangerous firearms out of the hands of unlicensed dealers. See id. at 364.

Contrary to the statute at issue in 89 Firearms, the forfeiture statute at issue in Ursery does not have "distinctly civil procedures." More notably present in . 881 is the "innocent owner" defense. See 21 U.S.C. . 881(a)(4), (a)(6), and (a)(7) (1994). The Court in Austin v. United States, 509 U.S. 602 (1911), held that "these [innocent owner defenses] serve to focus the provisions on the culpability of the owner in a way that makes them look more like punishment, not less." Id. at 619.

68. 89 Firearms, 465 U.S. at 365 (quoting Ward, 448 U.S. at 249).

69. See id. at 366. The Court was careful to limit its holding to the particular forfeiture statute at issue and not to make general conclusions. The Court stated: "We hold that a gun owner's acquittal on criminal charges involving firearms does not preclude a subsequent in rem forfeiture proceeding against those firearms under . 924(d)." Id.

70. See id.

71. 490 U.S. 435 (1989).

72. United States v. Halper, 490 U.S. 435, 449 (1989).

73. See id. at 436.

74. See id. at 437.

75. See id.

76. See id.

77. See id.

78. See id. at 438.

79. See United States v. Halper, 660 F. Supp. 531, 533 (S.D.N.Y. 1987), vacated and remanded, 490 U.S. 435 (1989).

80. See Halper, 490 U.S. at 441-42.

81. See id. at 447-49. When determining if a particular civil sanction is characterized as remedial or punitive, the Court stated that the purposes served by the sanction at issue must be examined, not the label affixed to it. See id. at 447-48. The Court stated: "'[T]he labels affixed either to the proceeding or to the relief imposed . . . are not controlling and will not be allowed to defeat the applicable protections of federal constitutional law.'" Id. at 448 (quoting Hicks v. Feiock, 485 U.S. 624, 631 (1988)).

82. Id. In Ursery, the Court asserted that this statement was merely dictum and that it did not set forth a rule. See United States v. Ursery, 116 S. Ct. 2135, 2145 n.2 (1996). Justice Stevens, however, maintained that this was the narrower rule set forth by Halper. See id. at 2157 (Stevens, J., concurring in part and dissenting in part).

83. 509 U.S. 602 (1993).

84. See Austin v. United States, 509 U.S. 602, 609-10 (1993).

85. See id. at 602.

86. See id. at 604.

87. See id.

88. See id. at 605 & n.2.

89. Prior to Austin, six of seven federal circuit courts that considered the issue held that the Excessive Fines Clause of the Eighth Amendment did not apply to civil forfeitures. Compare United States v. Plat 20, Lot 17, 960 F.2d 200, 206-07 (1st Cir. 1992) (holding proportionality analysis under Eighth Amendment unnecessary in civil forfeiture cases brought pursuant to . 881(a)(7)), and United States v. 6250 Ledge Rd., 943 F.2d 721, 727 (7th Cir. 1991) ("Eighth Amendment does not apply to civil in rem actions . . . ." (citing United States v. OnLeong Chinese Merchants Ass'n Bldg., 918 F.2d 1289, 1296 (7th Cir. 1990))), and United States v. 3097 S.W. 111th Ave., 921 F.2d 1551, 1557 (11th Cir. 1991) (determining that Eighth Amendment proportionality analysis does not apply to civil forfeiture cases), and United States v. 107.9 Acre Parcel of Land, 898 F.2d 396, 400-01 (3d Cir. 1990) (concluding that . 881(a)(7) does not violate Eighth Amendment), and United States v. Santoro, 866 F.2d 1538, 1544 (4th Cir. 1989) (declining to extend Eighth Amendment protections to . 881(a)(7)), and United States v. Tax Lot 1500, 861 F.2d 232, 233-35 (9th Cir. 1988) (refusing to apply Eighth Amendment to civil forfeiture actions), with United States v. 38 Whalers Cove Drive, 954 F.2d 29, 35 (2d Cir. 1992) (holding that Eighth Amendment analysis did not apply).

90. See Austin, 509 U.S. at 622.

91. See id. at 615 ("The fiction 'that the thing is primarily considered the offender' has a venerable history in our case law." (quoting Goldsmith-Grant Co. v. United States, 254 U.S. 505, 511 (1921))). The Court refused to rely on the in rem nature of the proceeding in Austin. See id. at 616 n.9. The Court stated: "We 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." Id.

92. Id. at 618; see also Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 686 (1974) (noting punitive and deterrent purposes served by forfeiture statutes).

93. See Austin, 509 U.S. at 621. In its decision, the Court relied heavily on the innocent owner provision of the Act, which focused on the culpability of the owner in a way that made it look more like punishment. See id. The Court also recognized that under . 881(a)(4) and (a)(7), the forfeiture was tied directly to the commission of a drug offense. See id. Finally, the Court examined the legislative history of the statute in which Congress had recognized that the traditional aim of forfeiture was to punish. See id. at 622 n.14.

94. See id at 622.

95. 114 S. Ct. 1937 (1994).

96. See Department of Revenue v. Kurth Ranch, 114 S. Ct. 1937, 1944 (1994).

97. See id. at 1942.

98. See id.; see also Dangerous Drug Tax Act, MONT. CODE ANN. .. 15-25-101 to -123 (1987) (repealed 1995) (taxing those who profit from drug-related offenses).

99. See Kurth Ranch, 114 S. Ct. at 1943.

100. See id. at 1948.

101. See id.

102. See id. at 1946.

103. Id. at 1948 (quoting United States v. Halper, 490 U.S. 435, 440 (1989)).

104. See id. at 1946-47.

105. 33 F.3d 1210 (9th Cir. 1994).

106. See United States v. $405,089.23, 33 F.3d 1210, 1222 (9th Cir. 1994), opinion amended on denial of reh'g by 56 F.3d 41 (9th Cir. 1995), rev'd sub nom. United States v. Ursery, 116 S. Ct. 2135 (1996).

107. 59 F.3d 568 (6th Cir. 1995), rev'd, 116 S. Ct. 2135 (1996).

108. See United States v. Ursery, 59 F.3d 568, 576 (6th Cir. 1995), rev'd, 116 S. Ct. 2135 (1996).

109. See United States v. Ursery, 116 S. Ct. 762 (1996).

110. See $405,089.23, 33 F.3d at 1214.

111. See id.

112. See id.

113. See id. The government also argued that the property was forfeitable as property "involved in" money laundering violations under 18 U.S.C. . 981(a)(1)(A). See id. The district court concluded that probable cause was established with regard to both the narcotics transactions and money laundering, and that the property therefore was forfeitable pursuant to either statute. See id. at 1215.

114. See id. at 1214.

115. See id. The court granted summary judgment in favor of the government when the defendants failed to introduce any evidence demonstrating that the property was not subject to forfeiture. See id.

116. See id. at 1215. Appellants also claimed "that the government lacked probable cause to institute [the] proceedings, . . . that the forfeiture violate[d] the Excessive Fines Clause of the Eighth Amendment, and that the district court lacked in rem jurisdiction over a small part of the res." Id.

117. See id. at 1222.

118. See id. at 1216.

119. See id. The Ninth Circuit recognized that the Second and Eleventh Circuits recently had held that parallel criminal prosecutions and civil forfeitures constituted the same proceeding for double jeopardy purposes. See id. In United States v. One Single Family Residence, 13 F.3d 1493 (11th Cir. 1994), the Eleventh Circuit determined that, because the forfeiture action and criminal prosecution took place at approximately the same time and involved the same criminal violations, they were part of a "single, coordinated prosecution." Id. at 1499. Similarly, in United States v. Millan, 2 F.3d 17 (2d Cir. 1993), the Second Circuit found "that the civil and criminal actions were but different prongs of a single prosecution of the [respondents] by the government." Id. at 20. The Ninth Circuit, however, concluded "that the position adopted by the Second and Eleventh Circuits contradicts controlling Supreme Court precedent as well as common sense." $405,089.23, 33 F.3d at 1216.

120. $405,089.23, 33 F.3d at 1216 (emphasis added).

121. See id. at 1218-19.

122. Id. at 1218.

123. See id. at 1220.

124. See id. at 1219. The Ninth Circuit concluded that "if a forfeiture constitutes punishment under the Halper criteria, it constitutes 'punishment' for purposes of both clauses." Id. (footnote omitted).

125. 59 F.3d 568 (6th Cir. 1995), rev'd, 116 S. Ct. 2135 (1996).

126. See United States v. Ursery, 59 F.3d 568, 570 (6th Cir. 1995), rev'd, 116 S. Ct. 2135 (1996).

127. See id.

128. See id.

129. See id.

130. See id.

131. See id.

132. See id. at 573. The Sixth Circuit first determined that jeopardy had attached in the civil forfeiture proceeding because the consent judgment was analogous to a guilty plea entered in a criminal case, which constitutes jeopardy. See id. at 571.

133. Id. at 573.

134. See id. at 573-74.

135. See 284 U.S. 299, 304 (1932) ("The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.").

136. See Ursery, 59 F.3d at 574-75.

137. See id. at 574 (relying on United States v. Halper, 490 U.S. 435, 450 (1989)).

138. The Sixth Circuit did not adopt the rationale set forth by any of the other circuits that had ruled on the issue of when parallel civil forfeiture and criminal proceedings can constitute a "single, coordinated proceeding." See id. at 575. The court stated that "the existence of a 'single, coordinated proceeding' could arguably satisfy the requirements of the Double Jeopardy Clause, as suggested by the Second and Eleventh Circuits, [but] the facts in this case fail to reveal such a single, coordinated proceeding." Id. The court noted that both proceedings were presided over by different judges, decided by separate judgments, and instituted four months apart. See id. The court also recognized that there was no communication between the government lawyers assigned to the civil and criminal actions. See id. Additionally, the court did not adopt the Ninth Circuit's belief-as set forth in United States v. $405,089.23, 33 F.3d 1210, 1216 (9th Cir. 1994)-that parallel criminal and civil forfeiture proceedings always will violate double jeopardy. See id. Its decision suggested the permissibility of concurrent criminal and civil forfeiture actions in limited situations.

In an extremely critical dissent, Judge Milburn rejected the majority's rationale, arguing that the issue of whether parallel civil and criminal actions constitute a "single proceeding" for double jeopardy purposes should turn on the timing of the proceedings and the potential for government abuse. See id. at 577 (Milburn, J., dissenting). Judge Milburn criticized the majority's approach as "unpredictable," arguing that his approach "avoids the inevitable difficulty of a case-by-case comparison of the level of coordination" between the civil and criminal actions. Id. at 577-78 (Milburn, J., dissenting). He concluded that because the "government was not acting . . . out of dissatisfaction with the first outcome" and because the actions were maintained during the same time frame, the actions constituted a single proceeding that did not violate the Double Jeopardy Clause. See id. at 578 (Milburn, J., dissenting).

139. 116 S. Ct. 2135 (1996).

140. United States v. Ursery, 116 S. Ct. 2135, 2140 (1996).

141. See id. at 2142-43.

142. See id. at 2147.

143. See id.

144. 282 U.S. 577 (1931).

145. 409 U.S. 232 (1972).

146. 465 U.S. 354 (1984).

147. See Ursery, 116 S. Ct. at 2140-42 (relying on Various Items, Emerald Cut Stones, and 89 Firearms). In Various Items, the Court determined that the civil forfeiture of a distilling plant used to produce illegal alcohol during the Prohibition Era did not constitute punishment for double jeopardy purposes. See Various Items of Personal Property v. United States, 282 U.S. 577, 580-81 (1931). The Court determined that because the proceeding was in rem against property, it could not constitute punishment. See id. at 581. Similarly, in Emerald Cut Stones, the Court determined that the civil forfeiture of smuggled jewels did not constitute punishment due to the remedial purposes of 19 U.S.C. . 1497. See One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235-36 (1972). The Court held in 89 Firearms that civil forfeiture of firearms did not constitute punishment for double jeopardy purposes because the cause of action arose from the Gun Control Act, and Congress intended the cause of action to be remedial, not punitive. See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 363 (1984).

148. The first part of the analysis requires the Court to determine whether Congress intended the forfeiture statute to be civil or criminal. See 89 Firearms, 465 U.S. at 362-63. The second part of the analysis requires the Court to determine "'[w]hether the statutory scheme [is] so punitive either in purpose or effect as to negate' Congress' intention to establish a civil remedial mechanism." Id. at 365 (quoting United States v. Ward, 448 U.S. 242, 248-49 (1980)); see also supra note 67 and accompanying text (discussing two-prong test in 89 Firearms).

149. See Ursery, 116 S. Ct. at 2147-49.

150. See id. at 2147-48.

151. See id. at 2148.

152. Id.

153. See id. at 2140; Various Items of Personal Property v. United States, 282 U.S. 577, 581 (1931) (determining that civil forfeiture proceeding was not punishment because it was in rem proceeding against property).

154. See Ursery, 116 S. Ct. at 2141 (relying on Various Items, 282 U.S. at 581).

155. See id. at 2140-41, 2149.

156. See id. at 2149.

157. Id. at 2155 (Stevens, J., concurring in part and dissenting in part).

158. See id. at 2155-56 (Stevens, J., concurring in part and dissenting in part) (referring to United States v. Halper, 490 U.S. 435, 448 (1989).

159. See id. at 2152 (Stevens, J., concurring in part and dissenting in part).

160. Id. at 2161 (Stevens, J., concurring in part and dissenting in part) (emphasis added).

161. See Halper, 490 U.S. at 449.

162. See Ursery, 116 S. Ct. at 2160 (Stevens, J., concurring in part and dissenting in part) (suggesting that distinction between in rem and in personam proceedings is pretext for Court's real basis of decision).

163. The Court limited Halper to the issue of whether a civil penalty could constitute punishment for double jeopardy purposes. See id. at 2143. Similarly, Austin applied only to civil forfeitures in the context of the Eighth Amendment Excessive Fines Clause. See id. at 2143-44. Finally, the Court narrowly construed Kurth Ranch to apply only to tax statutes that are so punitive that they constitute punishment for purposes of the Double Jeopardy Clause. See id. at 2144.

164. See id. at 2147.

165. See id.

166. In Emerald Cut Stones, after being tried and acquitted of smuggling jewels into the United States, the owner of the jewels intervened in a subsequent forfeiture proceeding against the jewels. See One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 232-33 (1972). The district court held that the Fifth Amendment protection against double jeopardy barred the subsequent forfeiture proceedings. See id. at 233.

In a brief opinion, the Supreme Court held that the forfeiture proceeding was not barred by the Double Jeopardy Clause because it "involve[d] neither two criminal trials nor two criminal punishments." Id. at 235. In making its decision, the Court carefully examined the character of the forfeiture statute at issue, 19 U.S.C. . 1497. See id. at 236-37. It found that the forfeiture provided a reasonable form of liquidated damages to reimburse the government for expenses incurred as a result of investigation and enforcement. See id. at 237. The Court further recognized that the purposes behind the statute were remedial, not punitive. See id. Finally, the Court determined that the penalties imposed were not "so unreasonable or excessive that [they] transform[ed] what was clearly intended as a civil remedy into a criminal penalty." Id.

For a discussion of the Court's analysis in Halper, see supra notes 72-84 and accompanying text.

167. See Emerald Cut Stones, 409 U.S. at 237 (analyzing character of forfeiture statute in double jeopardy context).

168. See id.

169. The statute at issue was 18 U.S.C. . 922(a)(1) (1976).

170. See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364 (1984). In 89 Firearms, the Court determined that "Congress sought to 'control the indiscriminate flow' of firearms and to 'assist and encourage States and local communities to adopt and enforce stricter gun control laws.'" Id. (quoting H.R. REP. NO. 90-1577, at 8 (1968), reprinted in 1968 U.S.C.C.A.N. 4410, 4425).

171. See id.

172. See id. at 366.

173. See United States v. Halper, 490 U.S. 435, 447-49 (1989) (examining purposes and character of penalty to determine whether civil sanction constitutes punishment); 89 Firearms, 465 U.S. at 363-64 (examining purpose and character of 18 U.S.C. . 924(d) in determining whether it was punitive); Emerald Cut Stones, 409 U.S. at 236 (assessing character of forfeiture statute in order to determine whether it was remedial or punitive in nature).

Furthermore, the majority misconstrued Austin to bolster its position in Ursery. It claimed that Austin endorsed its traditional understanding that civil forfeiture is not punishment for double jeopardy purposes. See United States v. Ursery, 116 S. Ct. 2135, 2146 (1996) ("In Austin we expressly recognized and approved our decisions in One Lot Emerald Cut Stones v. United States and United States v. One Assortment of Firearms.") (citations omitted). The majority's "traditional understanding," however, never was endorsed in Austin. As pointed out by Justice Stevens' dissent, the majority "creates the appearance" that Austin endorsed its interpretation of 89 Firearms and Emerald Cut Stones by quoting selectively from its holding. See id. at 2154 (Stevens, J., concurring in part and dissenting in part). Austin actually held that "[t]he Double Jeopardy Clause has been held not to apply in civil forfeiture proceedings, but only in cases where the forfeiture could properly be characterized as remedial." Austin v. United States, 509 U.S. 602, 608 n.4 (1993) (emphasis added). Thus, under the rationale in Austin, the Double Jeopardy Clause could apply to civil forfeiture statutes when the statute is not characterized as remedial. See id. This contradicts the majority's assertion in Ursery that the Court in Austin "expressly recognized and approved" Emerald Cut Stones and 89 Firearms.

174. Ursery, 116 S. Ct. at 2140.

175. See Ursery, 116 S. Ct. at 2144 (citing Halper, 490 U.S. at 449-50).

176. See id. at 2144-45.

177. Id. at 2145.

178. See id. The majority determined that it was not possible to quantify the nonpunitive purposes of a particular civil forfeiture. See id. It further found that it was too difficult to determine whether a particular forfeiture bears a rational relationship to its nonpunitive purposes. See id. Because Halper's analysis requires courts to compare the harm suffered by the government to the size of the penalty imposed on the individual, the majority concluded that it could not be applied. See id.

179. For a discussion of Halper, see supra notes 72-84 and accompanying text.

180. The majority limited Halper by holding that it applied only in "the context of civil penalties." Ursery, 116 S. Ct. at 2144. In his dissent, Justice Stevens agreed that Halper set forth a narrow rule for rare cases involving disproportionate civil penalties. See id. at 2157 (Stevens, J., concurring in part and dissenting in part).

181. See id. at 2145 n.2. "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 . . . ." Id.

182. Id. at 2156 (Stevens, J., concurring in part and dissenting in part) (quoting United States v. Halper, 490 U.S. 435, 448-49 (1989)).

183. See Ursery, 116 S. Ct. at 2145 n.2 (failing to give an explanation for the Court's reliance in Austin on Halper's general rule).

184. Id. at 2157 (Stevens, J., concurring in judgment in part and dissenting in part).

185. The majority's reliance on Kurth Ranch to refute the application of Halper's analysis to civil forfeitures similarly is misplaced. See id. at 2146 (noting that Court in Kurth Ranch "expressly disclaimed reliance on Halper"). The majority relied on the Court's determination in Kurth Ranch that "because 'tax 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.'" Id. (quoting Department of Revenue v. Kurth Ranch, 114 S. Ct. 1937, 1948 (1994)). Although the majority pointed out that Kurth Ranch refused to apply Halper's narrow rule regarding civil penalties, it failed to acknowledge the fact that Kurth Ranch expressly relied on Halper's definition of "punishment." See Kurth Ranch, 114 S. Ct. at 1948 (applying Halper's definition of punishment). In Kurth Ranch, the Court applied Halper's definition of punishment and held that the drug tax was "a second punishment within the contemplation of a constitutional protection that has 'deep roots in our history and jurisprudence.'" Id. (quoting Halper, 490 U.S. at 440). Thus, although Halper's narrow rule could not be applied in Kurth Ranch because that case involved a tax statute, Halper's definition of punishment can be applied to more than just civil penalties.

186. See Halper, 490 U.S. at 448.

187. Halper, 490 U.S. at 447 & n.7 (emphasis added).

188. Department of Revenue v. Kurth Ranch, 114 S. Ct. 1937, 1946 (1994).

189. In Ursery, the Court even acknowledged that subsections (a)(6) and (a)(7) have "certain punitive aspects." Ursery, 116 S. Ct. at 2148. Despite these punitive aspects, the Court determined that civil forfeitures pursuant to . 881 did not constitute punishment. See id. at 2149.

190. See Ursery, 116 S. Ct. at 2141 (determining that Various Items drew "sharp distinction between in rem civil forfeitures and in personam civil penalties").

Various Items was one of the first cases in which the Supreme Court considered civil forfeitures in the context of double jeopardy. See Various Items of Personal Property v. United States, 282 U.S. 577 (1931). In Various Items, a distilling company had been ordered to forfeit a distillery, warehouse, and denaturing plant on the ground that the company had defrauded the government of taxes, in violation of federal law. See id. at 578. The government admitted that, prior to the forfeiture proceeding, the company had been charged and convicted on criminal violations based on "the transactions set forth . . . as a basis for the forfeiture." Id. at 579.

After considering the distilling company's argument that the subsequent civil forfeiture proceeding violated the Double Jeopardy Clause, the Supreme Court determined that double jeopardy protection did not apply. See id. at 580-81. The Court held that the civil forfeiture was an in rem proceeding to forfeit the property the company used in committing the crime. See id. at 580. The Court further determined that in an in rem proceeding, "[i]t is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious." Id. at 581. Finally, the Court contrasted criminal prosecutions, in which the person is proceeded against, from civil forfeitures, in which "[t]he forfeiture is no part of the punishment for the criminal offense." Id.

191. See Ursery, 116 S. Ct. at 2149 (holding that in rem civil forfeitures do not constitute punishment under Double Jeopardy Clause).

192. See id. at 2160 (Stevens, J., concurring in part and dissenting in part).

193. Austin v. United States, 509 U.S. 602 (1993).

194. Id. at 616 n.9.

195. See Republic Nat'l Bank of Miami v. United States, 113 S. Ct. 554, 559 (1992) ("The fictions of in rem forfeiture were developed primarily to expand the reach of the courts and to furnish remedies for aggrieved parties.").

196. Austin, 509 U.S. at 616 n.9.

197. See id. at 615.

198. Id. at 618 (quoting Goldsmith-Grant Co. v. United States, 254 U.S. 505, 511 (1921)). In his concurrence in Ursery, Justice Kennedy acknowledged that the distinction between in rem and in personam is a "fiction alive in Various Items but condemned in Austin." United States v. Ursery, 116 S. Ct. 2135, 2151 (1996) (citations omitted) (Kennedy, J., concurring in judgment). Justice Kennedy partially agreed with Justice Stevens' dissent, stating that "[i]t is the [property] owner who feels the pain and receives the stigma of the forfeiture, not the property." Id. (Kennedy, J., concurring in judgment). Contrary to Justice Stevens, however, Justice Kennedy determined that the distinction was appropriate because its purpose is to "quiet title to forfeitable property in one proceeding." Id. This determination, however, runs contrary to the reasoning set forth by the Court in Republic Nat'l Bank. See supra note 195 and accompanying text (discussing jurisdictional rationale for in rem distinction). Moreover, Justice Kennedy's determination fails to explain why the majority in Ursery could rely on this distinction in the double jeopardy context.

199. See Austin, 509 U.S. at 616 n.9 (stating that reliance on in rem fiction would be misplaced).

200. Ursery, 116 S. Ct. at 2163 (Stevens, J., concurring in part and dissenting in part) (asserting that Court's holding in Ursery erodes Fifth Amendment guarantee prohibiting double jeopardy).

201. See id. (Stevens, J., concurring in part and dissenting in part).

202. See Various Items of Personal Property v. United States, 282 U.S. 577, 580 (1930).

203. See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 355 (1984).

204. See Ursery, 116 S. Ct. at 2138-39.

205. See id. at 2163 (Stevens, J., concurring in part and dissenting in part).

206. See id. (Stevens, J., concurring in part and dissenting in part).

207. See id. at 2158 (Stevens, J., concurring in part and dissenting in part).

208. Id. at 2146.

209. U.S. CONST. amend. VIII ("Excessive bail shall not be required, nor excessive fees imposed.").

210. See Ursery, 116 S. Ct. at 2143-44 (rejecting relevancy of characterizing proceeding as civil or criminal and focusing on forfeiture itself to determine if it constituted punishment).

211. See generally United States v. $405,089.23, 33 F.3d 1210, 1221 (9th Cir. 1994) (relying on Austin for purposes of analysis of civil forfeiture statute under both Eighth and Fifth Amendments), rev'd sub nom. United States v. Ursery, 59 F.3d 568, 573 (6th Cir. 1995) (relying on Austin for analysis of civil forfeiture statute under Fifth Amendment's Double Jeopardy Clause), rev'd, 116 S. Ct. 2135 (1996). Because both the Sixth and Ninth Circuits relied on Austin in their decisions involving the Fifth Amendment, they implied that the definition of "punishment" is the same for purposes of both the Fifth and Eighth Amendments.

212. Ursery, 116 S. Ct. at 2157 n.5 (Stevens, J., concurring in part and dissenting in part).

213. Id. at 2157 (Stevens, J., concurring in part and dissenting in part).

214. Similarly, at oral argument for Ursery, Justice Scalia maintained that he could not understand why the Drafters would write that what constitutes punishment for Eighth Amendment purposes does not constitute punishment for Fifth Amendment purposes. See 64 U.S.L.W. 3751, 3752 (U.S. May 14, 1996).

215. See Ursery, 116 S. Ct. at 2146 (stating that "categorical approach under the Excessive Fines Clause [is] wholly distinct from the case-by-case approach of Halper").

216. See id.

217. See id. at 2147. "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 forefeitures are so punitive as to constitute punishment . . . . [W]e decline to import the analysis of Austin into our double jeopardy jurisprudence." Id.

218. The Court asserted that in Austin it "explained that the difference in approach[es between Halper and Austin] was based in a significant difference between the purposes of our analysis under each constitutional provision." Id. at 2146. The footnote that the majority relied on, however, nowhere stated that the two tests were "wholly distinct." See Austin v. United States, 509 U.S. 602, 622 n.14 (1993) (determining not to follow Halper but rather to focus on . 881(a)(4) and (a)(7)). It merely stated that the "focus [is] on . 881(a)(4) and (a)(7) as a whole" rather than "'the sanction as applied in the individual case,'" because it "involved a small, fixed-penalty provision." Id. (quoting in part United States v. Halper, 490 U.S. 435, 448 (1989)). These are just two different approaches to the same test that the Court set forth in Halper; they are not two "wholly distinct" tests.

219. Austin, 509 U.S. at 621 (quoting United States v. Halper, 490 U.S. 435, 448 (1989)) (emphasis added).

220. See id. The Court in Austin made it clear at the outset of its decision that it was relying on Halper's analysis of punishment:

We said in Halper 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, as we have come to understand the term." We turn, then, to consider whether, at the time the Eighth Amendment was ratified, forfeiture was understood at least in part as punishment and whether forfeiture under .. 881(a)(4) and (a)(7) should be so understood today.

Id. at 610-611 (quoting Halper, 490 U.S. at 448) (citation omitted).

221. 21 U.S.C. . 881(a)(4), (7).

222. See Austin, 509 U.S. at 622.

223. Ursery, 116 S. Ct. at 2159 (Stevens, J., concurring in part and dissenting in part) (emphasis added).

224. See Andrew Subin, The Double Jeopardy Implications of In Rem Forfeiture of Crime-Related Property: The Gradual Realization of a Constitutional Violation, 19 SEATTLE U. L. REV. 253, 253 (1996) (noting that government has adopted civil forfeiture as common tool for dealing with criminal defendants).

225. Every state has a civil forfeiture statute, many of which are modeled after . 881. See Brief of the State of Connecticut, 47 States, and the Commonwealth of Puerto Rico as Amici Curiae In Support of Petitioner, United States v. Ursery, 116 S. Ct. 2135, 2140 (1996). Even if states do not have civil forfeiture statutes modeled after . 881, they still would face double jeopardy challenges based on the decisions of the Sixth and Ninth Circuits. See id.

226. If the Court had chosen a middle route, holding that the forfeiture of facilitating property was punishment and that forfeiture of proceeds was not, the Court would have created additional issues for lower courts to address in the future. Defendants facing parallel proceedings then would argue that the property subject to forfeiture was facilitating, not proceeds of drug transactions. The courts thus would be faced with sorting out the difference between the two types of proceedings and, in many circumstances, would have to decide what to do when property could constitute both facilitating property and proceeds.

227. Ursery, 116 S. Ct. at 2163 (Stevens, J., concurring in part and dissenting in part).

228. Parallel proceedings also will increase the cost of prosecuting drug offenders, which will be passed on to taxpayers. See Comment, Tort Law-Civil Liability for Criminal Acts-Illinois Expands Civil Liability of Drug Traffickers, 109 HARV. L. REV. 699, 703 (1996) ("In those cases in which duplicative criminal [and] civil forfeiture . . . actions are brought, the parallel proceedings may lead to inefficient and excessive resource expenditures."). But see Janice T. Martin, Final Jeopardy: Merging the Civil and Criminal Rounds in the Punishment Game, 46 FLA. L. REV. 661, 685 (1994) ("If the Court or Congress decides to force forfeiture strictly into the criminal setting . . . then the war on crime in America, and particularly the war on drugs, will necessarily become more efficient and less costly.").

229. See Tibbs v. Florida, 457 U.S. 31, 41 (1982) (recognizing that "State [can] hon[e] its trial strategies and perfect[] its evidence through successive attempts at conviction").

230. See Subin, supra note 224, at 267-68 ("[T]he government commonly uses the forfeiture of property as a plea bargaining tool in the criminal case.").

231. See supra notes 60-71 and accompanying text (discussing ease with which Congress may overcome obstacles imposed by 89 Firearms).

232. See supra notes 72-84 and accompanying text (including Halper analysis).

233. See supra notes 60-71 and accompanying text (discussing difficulty of showing that civil forfeiture statute constitutes punishment under test of 89 Firearms).

234. The government will keep the existing criminal forfeiture statutes, but only for the purpose of preserving judicial economy by combining the criminal forfeiture proceeding and the criminal proceeding against the individual. Criminal forfeiture proceedings will be used only in situations where the government has an extremely strong case and prosecutors are absolutely sure that they can meet the "beyond a reasonable doubt" standard.

235. See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362 (1983) (determining nature of forfeiture proceedings). In 89 Firearms, the Court first "determine[d] whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." Id. (citing United States v. Ward, 448 U.S. 242, 248 (1980)) (citation omitted). Second, the Court "inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention." Id. at 362-63 (citation omitted).

236. See United States v. Ursery, 116 S. Ct. 2135, 2140 (1996).

237. See 89 Firearms, 465 U.S. at 362 (stating standard for examining civil forfeitures).

238. See Ursery, 116 S. Ct. at 2147-48 (examining civil labels and in rem nature of proceeding). In Ursery, the majority examined only the procedural mechanisms Congress established for enforcing . 881 before moving on to the second prong of 89 Firearms. See id. The Court, however, never examined the scope of the statute or its remedial aims, as it had in 89 Firearms under this prong. See id. (discussing procedural mechanisms of . 881 under first prong of 89 Firearms without discussing scope or aims of statute). See also 89 Firearms, 465 U.S. at 364 (examining "broad remedial aims" under first prong).

239. See 89 Firearms, 465 U.S. at 363 (focusing on procedure to determine intent of Congress). In 89 Firearms, the Court determined that Congress' intent under the first prong was "most clearly demonstrated by the procedural mechanisms it established for enforcing forfeitures under the statute." Id. The Court found that Congress had indicated its intent to create a civil sanction "[b]y creating such distinctly civil procedures for forfeitures under section 924(d)." Id.

In Austin, the Court examined the procedures set forth by . 881(a)(4) and (a)(7) in deciding whether they were punitive for purposes of the Eighth Amendment. See Austin v. United States, 509 U.S. 602, 617-23 (1993) (determining that procedures included by Congress showed its intent). The Court determined that the innocent owner defenses set forth in both sections of the Code "serve to focus the provisions on the culpability of the owner in a way that makes them look more like punishment, not less." Id. at 618-20; see also 21 U.S.C. . 881(a)(4)(C), (a)(7) (1994) (setting forth innocent owner defenses). The majority in Ursery, however, analyzed the identical statutes and concluded that the provisions were not relevant in determining whether the statute was punitive. See Ursery, 116 S. Ct. at 2149 (determining that . 881(a)(6) and (a)(7) are civil proceedings and that "clearest proof" does not exist to prove otherwise under Ward analysis). The Court stated that although the statute "remain[s] an 'innocent owner' exception, we do not think that such a provision, without more indication of intent to punish, is relevant to the question whether a statute is punitive under the Double Jeopardy Clause." Id.

240. See 89 Firearms, 465 U.S. at 363-64. In 89 Firearms, the Court determined that the civil forfeiture statute was broader in scope than the criminal provisions under the parallel statute, 18 U.S.C. . 922. See id. at 363. "[I]t is apparent from the differences in the language of these two statutes that the forfeiture provisions . . . were meant to be broader in scope than the criminal sanctions . . . ." Id.

241. See id. at 364. The Court concluded that "[k]eeping potentially dangerous weapons out of the hands of unlicensed dealers is a goal plainly more remedial than punitive." Id.

242. See id.

243. See United States v. Halper, 490 U.S. 435, 447-48 (1989) (assessing character and purpose of 18 U.S.C. . 287 in determining whether it constitutes punishment); 89 Firearms, 465 U.S. at 364 (analyzing remedial purposes of 18 U.S.C. . 924(d)).