INTRODUCTION

For more than 200 years, the United States government has possessed the power to confiscate property through forfeiture.¹ Laws authorizing the forfeiture of property used in illegal activities, such as customs offenses and piracy, were among the earliest statutes enacted by Congress.² During the early years of the nation, forfeiture laws served vital national interests, allowing for vessel forfeitures in times of war as well as seizure of Confederate property during the Civil War.³ Today, forfeiture is playing an expanded role in fighting a new war: the war against drugs.⁴

Congress enacted the Comprehensive Drug Abuse and Prevention Control Act⁵ ("the Act" or "_ 881") in 1970 to broaden the powers of the federal government in combatting drugs.⁶ Originally the Act enabled the government to institute civil forfeiture actions against property used to facilitate illegal narcotics transactions.⁷ Such "facilitating property" most often includes automobiles, aircraft, and boats used to transport illegal narcotics,⁸ or homes used to conduct narcotics transactions.⁹ Congress eventually determined that civil forfeitures pursuant to the Act were not fulfilling their anticipated goals.¹⁰ To remedy this shortcoming, Congress amended _ 881, granting the government power to confiscate proceeds traceable to illegal narcotics transactions in addition to facilitating property.¹¹ Forfeiture of "proceeds" can include money or anything of value exchanged for illegal drugs, as well as a home or any property purchased with such money.¹² Although forfeiture of proceeds and facilitating property under _ 881 have proven to be the most effective and most utilized¹³ weapons in the nation's war on drugs, they also have been among the most controversial.¹⁴

In United States v. Ursery,¹⁵ the Supreme Court expanded the government's forfeiture powers pursuant to _ 881, permitting parallel criminal prosecution and civil forfeiture of property involved in drug offenses.¹⁶ The Court determined that such concurrent proceedings did not violate the Double Jeopardy Clause's¹⁷ protection against multiple punishments for the same offense.¹⁸ Chief Justice Rehnquist, writing for the majority, held that forfeiture of proceeds and facilitating property pursuant to _ 881 constituted a remedial civil sanction and therefore was not punitive.¹⁹ Specifically, the Court determined that because civil forfeitures did not constitute punishment under the Double Jeopardy Clause, forfeitures could not violate the Constitution's protection against double jeopardy.²⁰ Although the Court's decision gave the government more leverage to combat drugs, it did so at the expense of defendants' Fifth Amendment rights.

This Note argues that the Supreme Court unnecessarily abridged drug offenders' Fifth Amendment protections at a time when law enforcement resources far outweigh those of most defendants.²¹ Part I reviews the procedural advantages of civil forfeiture proceedings that make such actions a powerful tool for federal prosecutors. Part II sets forth the legal standards relevant to any double jeopardy challenge. Part III discusses the Supreme Court's decisions involving civil forfeiture and the Double Jeopardy Clause. Part IV examines the rationales underlying Sixth and Ninth Circuit decisions that the Supreme Court reversed in Ursery. Part V reviews the Supreme Court's holding and rationale in Ursery. Part VI analyzes the Court's application of precedent relevant to Ursery. In particular, Part VI discusses the previously apparent requirement that a second civil sanction must serve a "solely remedial" purpose to avoid invoking the protections of the Double Jeopardy Clause. Part VI also argues that forfeitures pursuant to _ 881(a)(4) and (a)(7) do not fit this characteristic because they are punitive in nature. Part VII suggests that the Court in Ursery reduced the degree of Fifth Amendment protection afforded to defendants by permitting the government to proceed both criminally and civilly against drug offenders. Consequently, the government can take advantage of the more favorable procedures offered in civil forfeiture proceedings, in which defendants should receive the constitutional protections mandated in criminal proceedings. Finally, this Note concludes that the Court applied an obscure line of cases in place of a sound and long-relied upon line of cases.

The Supreme Court determined in Various Items of Personal Property v. United States ²² that civil forfeitures are in rem actions, stating that "[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 instead of inanimate and insentient."²³ In contrast, criminal forfeitures are classified as "in personam proceedings instituted as part of the criminal case against a defendant."²⁴ The in rem status of civil forfeitures enables the government to avoid the procedural safeguards mandated in criminal forfeitures.²⁵ Because civil forfeiture actions treat the property owner as a bystander, the government can proceed directly against the offending property.²⁶ As a result, the government need not prove the culpability of the owner.²⁷ In effect, this imposes strict liability on owners whose property is used illegally, regardless of who used the property or whether anyone was charged with an offense.²⁸

Indeed, in civil forfeiture actions, the government only need establish probable cause that the property either facilitated a drug transaction or constitutes proceeds thereof.²⁹ The burden then shifts to the claimant to prove by a preponderance of the evidence that the property was not used illegally.³⁰ In contrast, criminal forfeitures require the government to prove beyond a reasonable doubt that the property was used illegally in the underlying offense.³¹ Generally, property may not be forfeited in criminal forfeitures until the defendant is convicted of the underlying crime.³²

Understandably, prosecutors prefer civil rather than criminal forfeiture due to the procedural advantages.³³ The lower burden of proof and lack of a culpability requirement have made civil forfeiture pursuant to _ 881 a powerful law enforcement weapon in the war against drugs.³⁴ Accordingly, the government commonly institutes civil forfeiture proceedings against a defendant's property in addition to the criminal trial of the defendant for the underlying drug charges.³⁵ Such parallel civil and criminal proceedings are an extremely effective method of depriving drug offenders of the economic benefits of their crimes.³⁶ These separate proceedings, however, raise the question of whether parallel proceedings violate the Fifth Amendment's proscription against multiple punishments for the same offense.³⁷

The Double Jeopardy Clause of the Fifth Amendment guarantees that no person "shall . . . be subject for the same offence to be twice put in jeopardy of life or limb."³⁸ The proscription against double jeopardy is one of the oldest ideas in western civilization³⁹ and is fundamental to our system of justice.⁴⁰ The Supreme Court has held that the Clause consists of the following three separate constitutional protections for defendants: (1) protection against a second prosecution for the same offense after conviction; (2) protection against a second prosecution for the same offense after acquittal; and (3) protection against multiple punishments for the same offense.⁴¹

The Double Jeopardy Clause preserves the finality of judicial decisions.⁴² By barring successive prosecutions after a defendant's acquittal or conviction, the Double Jeopardy Clause preserves a defendant's expectation of finality.⁴³ An unconstitutional addition to a sentence would occur, for example, when a judge imposes a fifteen year sentence under a statute permitting fifteen years to life, has second thoughts after the convict serves the time, and subsequently hails the defendant back to court to impose ten more years.⁴⁴ In preserving the right to finality, the clause protects the basic principles of our legal system, including the prevention of government oppression, the protection of innocent defendants from wrongful convictions, and the elimination of unfairness in punishing an individual twice for the same offense.⁴⁵

Under modern criminal and civil law, it is not uncommon for multiple charges to arise from the same act or series of acts.⁴⁶ Accordingly, protection under the Double Jeopardy Clause depends on whether the two offenses constitute the "same offense."⁴⁷ Determining whether multiple offenses constitute the same offense is important in multiple prosecutions for related acts,⁴⁸ such as those involved in parallel civil forfeitures and criminal proceedings.

To determine whether multiple prosecutions for a single act or series of acts violate the constitutional protection against being punished twice for the same offense, courts use the "statutory elements" test set forth in Blockburger v. United States.⁴⁹ Under the "statutory elements" test, when the same act or transaction constitutes a violation of two statutes, the test applied to determine if there are two offenses is whether each offense requires proof of an element that the other does not.⁵⁰ If each statutory violation requires proof of an element that the other does not, Blockburger's test is satisfied, and prosecution for both offenses is not barred by the Double Jeopardy Clause.⁵¹

The underlying protections afforded by the Double Jeopardy Clause serve as the background against which parallel criminal and civil forfeiture proceedings must be analyzed. In United States v. One Assortment of 89 Firearms,⁵² the Supreme Court articulated what appeared to be an inflexible rule that civil forfeitures do not constitute punishment for double jeopardy purposes.⁵³ The circuits began to question this rule, however, in light of several subsequent Supreme Court decisions. In United States v. Halper,⁵⁴ the Court held for the first time that a civil penalty could constitute punishment for double jeopardy purposes.⁵⁵ After Halper, the Court decided two closely related cases, Austin v. United States⁵⁶ and Department of Revenue v. Kurth Ranch.⁵⁷ In Austin, the Court held that civil forfeitures of facilitating property pursuant to _ 881(a)(4) and (a)(7) were subject to the limitations of the Eighth Amendment's Excessive Fines Clause.⁵⁸ In Kurth Ranch, the Court determined that a civil drug tax constituted double jeopardy when imposed with a criminal prosecution for the same offense.⁵⁹ Determining whether parallel civil forfeiture actions pursuant to _ 881 constitute punishment for double jeopardy purposes requires both close examination of the relationships between these four cases and analysis of the Court's rationale in each.

A. United States v. One Assortment of 89 Firearms:

In United States v. One Assortment of 89 Firearms,⁶⁰ the Supreme Court addressed the issue of whether a civil forfeiture action initiated after a criminal acquittal violated the Double Jeopardy Clause.⁶¹ Initially, a gun dealer was indicted, but later acquitted, of the criminal offense of selling firearms without a license.⁶² Following his acquittal, the government instituted a civil forfeiture action against the firearms seized from his home.⁶³ The gun dealer argued that double jeopardy barred the subsequent forfeiture action.⁶⁴

In a unanimous decision by Chief Justice Burger, the Court framed the issue as "whether a . . . forfeiture proceeding is intended to be, or by its nature necessarily is, criminal and punitive, or civil and remedial."⁶⁵ The Court determined that Congress had intended the forfeiture statute at issue to be a remedial, civil sanction rather than a criminal punishment.⁶⁶ In determining whether a forfeiture proceeding is criminal or civil, the Court in 89 Firearms relied on the test set forth in United States v. Ward, stating:

"Our inquiry in this regard has traditionally proceeded on two levels. First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention."⁶⁷

The Court noted that "'only the clearest proof' that the purpose and effect of the forfeiture are punitive will suffice to override Congress' manifest preference for a civil sanction."⁶⁸ Because the Court concluded that double jeopardy does not bar a civil, remedial forfeiture proceeding following an acquittal on related criminal charges,⁶⁹ the subsequent forfeiture proceeding against the firearms was permissible.⁷⁰

With its holding in 89 Firearms, the Court appeared to have settled the question whether civil forfeitures constituted punishment under the Double Jeopardy Clause. In 1989, however, the Court determined that civil penalties could be considered punishment for double jeopardy purposes in United States v. Halper.⁷¹

B. United States v. Halper: The Solely Remedial Test

In Halper, the Supreme Court considered whether a civil penalty that bore "no rational relation to the goal of compensating the government for its loss"⁷² constituted double jeopardy.⁷³ Halper, who managed a medical service provider, submitted inflated claims for reimbursement to an insurance company.⁷⁴ As a result, the insurance company overpaid the medical service provider, resulting in a $585 loss to the government.⁷⁵ Halper was convicted on sixty-five counts of violating the criminal false claims statute and sixteen counts of mail fraud for submitting inflated insurance claims.⁷⁶ As a result, Halper was sentenced to two years imprisonment and fined $5000.⁷⁷ The government then brought suit against Halper under the civil False Claims Act, seeking to recover $130,000 ($2000 per false claim).⁷⁸ The district court refused to impose the penalty, however, stating that it bore no "rational relation" to the government's actual loss or to the cost of legal fees and investigations of the respondent's false claims.⁷⁹

On direct appeal from the district court, the Supreme Court rejected the prosecution's argument that double jeopardy could not apply in a civil case.⁸⁰ The Court held that under the Double Jeopardy Clause, an individual who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction for the same conduct if the civil sanction is punitive, and not remedial, in nature. In other words, when analyzing parallel criminal and civil sanctions, if the civil sanction is punitive in nature, it violates the Double Jeopardy Clause's protection against multiple punishments for the same offense.⁸¹ The Court stated 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."⁸²

The Supreme Court's decision in Halper opened the door for defendants in civil cases to make double jeopardy challenges previously thought impossible as a result of the Court's holding in 89 Firearms. Four years later, the Court applied Halper's "solely remedial" test in Austin v. United States⁸³ when examining civil forfeiture in the context of the Eighth Amendment's Excessive Fines Clause.⁸⁴

C. Austin v. United States:

In Austin, the Supreme Court revisited the issue of whether a civil forfeiture constituted punishment, but this time in the context of the Excessive Fines Clause of the Eighth Amendment.⁸⁵ The defendant in Austin plead guilty to one count of violating drug laws and was sentenced to seven years imprisonment.⁸⁶ Subsequently, the government instituted a civil forfeiture action pursuant to _ 881(a)(7) against the individual's mobile home and auto body shop, asserting that they were facilitating property.⁸⁷ The defendant argued that the forfeiture violated the Eighth Amendment's protection against excessive fines.⁸⁸

Contrary to six of the seven circuit courts that had ruled on the issue,⁸⁹ the Supreme Court held that forfeiture of facilitating property pursuant to _ 881(a)(4) and (a)(7) was subject to the limitations of the Excessive Fines Clause of the Eighth Amendment,⁹⁰ despite the in rem nature of such actions.⁹¹ The Court analyzed the historical purposes behind in rem forfeitures, concluding that they "have been understood, at least in part, as punishment."⁹² The Court expressly relied on the analysis set forth in Halper, concluding that the forfeitures of facilitating property under _ 881(a)(4) and (a)(7) did not serve an entirely remedial purpose and therefore constituted punishment subject to limitation under the Eighth Amendment.⁹³ The Court in Austin, however, ruled only on the nature of forfeiture with respect to the Eighth Amendment's Excessive Fines Clause,⁹⁴ leaving open the question of whether forfeiture was subject to the Fifth Amendment's Double Jeopardy Clause.

D. Department of Revenue v. Kurth Ranch:

In Department of Revenue v. Kurth Ranch,⁹⁵ the Court departed from Halper's "solely remedial" test when faced with a double jeopardy challenge to a Montana drug tax imposed after the conviction of several individuals.⁹⁶ In Kurth Ranch, six members of a family were convicted of cultivating and selling marijuana.⁹⁷ The state revenue department attempted to collect $900,000 in taxes on the possession of marijuana pursuant to Montana's Drug Tax Act.⁹⁸ The defendants claimed that the tax violated the Double Jeopardy Clause.⁹⁹

A divided Supreme Court held that the drug tax imposed on convicted drug dealers was punitive for double jeopardy purposes.¹⁰⁰ In its analysis, the Court determined that Halper's test for punishment could not be applied due to the differing objectives of tax statutes and civil penalties.¹⁰¹ The Court noted that tax statutes usually serve the nonpunitive purpose of raising revenue, whereas civil penalties typically serve punitive purposes.¹⁰² Although the Court did not apply Halper's test for punishment, it relied on the definition of punishment enunciated in Halper, stating that the drug tax constituted "a second punishment within the contemplation of a constitutional protection that has 'deep roots in our history and jurisprudence,' and therefore must be imposed during the first prosecution or not at all."¹⁰³ Based on the high tax assessment in proportion to the drugs' market value, the tax's deterrent effect, the fact that imposition of the tax was contingent on the commission of a crime, and the fact that the state sought to levy the tax on property that never was owned legally because the drugs constituted contraband, the Court concluded that the tax was punitive and thus barred by the Double Jeopardy Clause.¹⁰⁴

In light of the Court's findings in Halper, Austin, and Kurth Ranch, the circuits' application of the law regarding parallel criminal and civil proceedings pursuant to _ 881 was unpredictable. A pair of cases from the Ninth and Sixth Circuits presented the Supreme Court with the opportunity to resolve the split. In United States v. $405,089.23,¹⁰⁵ the Ninth Circuit determined that civil forfeiture of proceeds pursuant to _ 881(a)(6) constituted punishment for double jeopardy purposes.¹⁰⁶ In United States v. Ursery,¹⁰⁷ the Sixth Circuit held that civil forfeiture of facilitating property pursuant to _ 881(a)(4) and (a)(7) constituted punishment for double jeopardy purposes.¹⁰⁸ The Supreme Court granted certiorari for both cases which then were consolidated.¹⁰⁹

A. The Ninth Circuit Decision in United States v. $405,089.23: Forfeiture of Proceeds is Punishment

In $405,089.23, the government tried Charles Arlt and James Wren for conspiracy to aid and abet the manufacture of methamphetamine.¹¹⁰ The district court convicted both Arlt and Wren of the underlying criminal offenses.¹¹¹ Five days after the criminal indictments, the government filed an in rem complaint against a bank account, helicopter, shrimp boat, airplane, and numerous automobiles.¹¹² The government alleged that these properties were connected to the offenses charged in the parallel criminal cases and therefore were forfeitable as proceeds of illegal narcotics transactions under _ 881(a)(6).¹¹³ All parties agreed to defer the forfeiture litigation for the duration of the criminal prosecution.¹¹⁴ Subsequent to Arlt's and Wren's criminal convictions, however, the district court granted summary judgment in favor of the United States, finding that all of the assets were subject to forfeiture as proceeds of illegal narcotics activity.¹¹⁵ Arlt and Wren appealed, contending that the Double Jeopardy Clause barred the civil forfeiture action because they already had been prosecuted for criminal violations arising from the same acts.¹¹⁶

Guided primarily by Austin and Halper, the Ninth Circuit held that the Double Jeopardy Clause barred the subsequent civil forfeiture pursuant to _ 881(a)(6).¹¹⁷ The court first determined that the civil and criminal trials, although roughly contemporaneous, constituted "separate proceedings" for double jeopardy purposes.¹¹⁸ Although acknowledging that two other circuits had reached the opposite conclusion,¹¹⁹ the Court found that a "forfeiture case and a criminal prosecution would constitute the same proceeding only if they were brought in the same indictment and tried at the same time."¹²⁰

Applying Halper, the Ninth Circuit held that forfeiture of proceeds pursuant to _ 881(a)(6) constituted punishment for double jeopardy purposes.¹²¹ Although the court recognized that under the Supreme Court's analysis in 89 Firearms civil forfeitures did not constitute punishment in the double jeopardy context, it concluded that in Halper the Supreme Court had abandoned the two-prong analysis of 89 Firearms and essentially had "changed its collective mind."¹²² The court further held that in Austin the Supreme Court specifically had applied Halper's solely remedial test to determine whether forfeiture under __ 881(a)(4) and (a)(7) constituted punishment.¹²³ Because Austin had concluded that forfeiture of facilitating property constituted punishment for purposes of the Eighth Amendment, the Ninth Circuit held that it constituted punishment under the Double Jeopardy Clause as well.¹²⁴

B. The Sixth Circuit Decision in United States v. Ursery:

The Sixth Circuit employed a similar analysis in United States v. Ursery¹²⁵ when examining civil forfeiture of facilitating property pursuant to _ 881. In Ursery, police officers executing a search warrant found evidence that Guy Ursery was growing, processing, and consuming marijuana at or near his home.¹²⁶ Initially, the government brought a civil forfeiture action against Ursery's home as facilitating property pursuant to _ 881(a)(7),¹²⁷ which resulted in the entry of a consent judgment for $13,250.¹²⁸ Ursery later was criminally indicted and charged with one count of manufacturing marijuana.¹²⁹ The district court convicted and sentenced Ursery to sixty-three months imprisonment and four years of supervised release.¹³⁰ Ursery appealed the district court's decision, arguing that his criminal prosecution and punishment subsequent to the civil forfeiture proceeding violated the Double Jeopardy Clause of the Fifth Amendment.¹³¹

In reversing Ursery's conviction, the Sixth Circuit concluded that forfeiture of facilitating property pursuant to _ 881(a)(7) constituted punishment subject to the Fifth Amendment's Double Jeopardy Clause.¹³² Relying on Halper and Austin, the court held that "any civil forfeiture under 21 U.S.C. _ 881(a)(7) constitutes punishment for double jeopardy purposes."¹³³ The court further determined that Ursery's criminal conviction and the civil forfeiture of his property constituted punishment for the same offense.¹³⁴ Applying the "statutory elements" test articulated by the Supreme Court in Blockburger v. United States,¹³⁵ the court found that the criminal offense did not require any elements of proof beyond those required by the civil forfeiture action.¹³⁶ Because the two constituted the same offense for double jeopardy purposes, the subsequent civil forfeiture action was barred. Although the court recognized that the government can impose multiple punishments for the same offense if done within a single proceeding,¹³⁷ it declined to hold that the parallel civil and criminal actions at issue constituted a single, coordinated proceeding for double jeopardy purposes.¹³⁸

Led by Chief Justice Rehnquist, the majority in United States v. Ursery¹³⁹ relied on "a long line of cases . . . consistently concluding that the [Double Jeopardy] Clause does not apply to [civil forfeiture] actions because they do not impose punishment."¹⁴⁰ Although the Sixth and Ninth Circuits found that Halper, Austin, and Kurth Ranch created a new test for determining whether a civil sanction constitutes punishment under the Double Jeopardy Clause,¹⁴¹ the Supreme Court held that the circuits had misread those decisions.¹⁴² The Court stated that Halper, Austin, and Kurth Ranch could not be applied in Ursery because none of them concerned the issue in Ursery: whether in rem civil forfeitures violate the Double Jeopardy Clause.¹⁴³ Instead, the majority considered the forfeitures under the rationales set forth in Various Items of Personal Property v. United States,¹⁴⁴ One Lot Emerald Cut Stones v. United States,¹⁴⁵ and United States v. One Assortment of 89 Firearms,¹⁴⁶ each of which concluded that civil forfeitures do not constitute punishment for purposes of the Double Jeopardy Clause.¹⁴⁷

Using the two-prong analysis set forth in 89 Firearms,¹⁴⁸ the majority in Ursery determined that the civil forfeiture of facilitating property and proceeds under 18 U.S.C. _ 981(a)(1)(A) and 21 U.S.C. _ 881(a)(6) and (a)(7) did not constitute punishment under the Double Jeopardy Clause.¹⁴⁹ Under the first prong, the majority examined whether Congress intended the proceedings to be civil or criminal, concluding that Congress had intended the forfeiture of both facilitating property and proceeds to be civil in nature.¹⁵⁰ Applying the second prong of the 89 Firearms test, the majority examined the statute for the "clearest proof" that it was so punitive in purpose or effect as to negate Congress' intent.¹⁵¹ The Court found little evidence that forfeiture of proceeds and facilitating property pursuant to _ 881 was "so punitive in form and effect as to render them criminal despite Congress' intent to the contrary."¹⁵²

The majority also relied heavily on the classification by Various Items of civil forfeitures as in rem proceedings against property,¹⁵³ contrasting these types of proceedings with in personam proceedings against the individual.¹⁵⁴ The majority reasoned that in rem civil forfeitures could not be punitive because they are proceedings against property and not the individual.¹⁵⁵ The Court concluded that the civil forfeiture of both proceeds and facilitating property under _ 881 was not punitive for purposes of the Fifth Amendment Double Jeopardy Clause.¹⁵⁶

In his dissent in Ursery, Justice Stevens suggested that 89 Firearms and Emerald Cut Stones were not incompatible with Halper, Austin, and Kurth Ranch; rather, 89 Firearms and Emerald Cut Stones "set the stage for the modern understanding of how the Double Jeopardy Clause applies in nominally civil proceedings."¹⁵⁷ Justice Stevens argued that Halper's solely remedial test for punishment should have been applied to civil forfeitures brought pursuant to _ 881.¹⁵⁸ Although Justice Stevens concurred with the majority's judgment that the forfeiture of proceeds was not punitive,¹⁵⁹ he stated that with regard to the forfeiture of facilitating property, "[f]idelity to both reason and precedent dictates the conclusion that this forfeiture was 'punishment' for purposes of the Double Jeopardy Clause."¹⁶⁰

Although Ursery allows for the continued use of civil forfeitures in the government's war against drugs, the Court's rationale was inconsistent with applicable precedent. The majority failed to recognize and apply the general rule set forth in Halper: that a civil sanction must serve a solely remedial purpose in order to avoid invoking the protections of the Double Jeopardy Clause.¹⁶¹ In so doing, the Court accorded too much import to the "pedantic" distinction between in rem and in personam proceedings.¹⁶² Rather, the Court should have acknowledged that Halper's "solely remedial" test refined the two-prong analysis of 89 Firearms. The Court's decision severely weakened the Fifth Amendment proscription against double jeopardy.

A. The Court Should Have Applied Halper

The majority in Ursery refused to adopt the analysis employed by the Sixth and Ninth Circuits. The Court attempted to distinguish its prior decisions in Halper, Austin, and Kurth Ranch, declaring those cases inapplicable.¹⁶³ According to the majority in Ursery, none of those decisions discarded the Court's traditional understanding that civil forfeitures do not constitute punishment under the Double Jeopardy Clause.¹⁶⁴ Instead, the Court looked to 89 Firearms, Emerald Cut Stones, and Various Items as controlling precedent.¹⁶⁵ The majority's analysis, however, is incomplete.

1. Harmonizing 89 Firearms and Emerald Cut Stones with Halper

Contrary to the majority's assertion in Ursery, Emerald Cut Stones and 89 Firearms never endorsed a traditional understanding that civil forfeiture could not be punitive under the Double Jeopardy Clause. In fact, the Court in Emerald Cut Stones used an analysis similar to that in Halper.¹⁶⁶ The Court in Emerald Cut Stones analyzed the purposes of the forfeiture statute at issue, 19 U.S.C. _ 1497, in deciding whether Congress intended it to be remedial or punitive in nature.¹⁶⁷ Only after an examination of the character of the particular forfeiture statute at issue did the Court in Emerald Cut Stones conclude that it was remedial and did not constitute punishment.¹⁶⁸ Thus, the Court's holding in Emerald Cut Stones announced no broad rule that civil forfeitures could not be considered punitive in the double jeopardy context.

Similarly, the Court's decision in 89 Firearms is not inconsistent with Halper. The Court in 89 Firearms examined the "broad remedial aims" of the gun control forfeiture statute at issue¹⁶⁹ and determined that keeping firearms away from unlicensed dealers was a remedial goal.¹⁷⁰ Thus, the statute was not punitive.¹⁷¹ The Court concluded that the forfeiture statute was a remedial sanction and therefore was not barred by the Double Jeopardy Clause.¹⁷² This analysis bears a strong resemblance to the Halper test, which requires a solely remedial purpose. Because the similarities between the analyses of Halper, 89 Firearms, and Emerald Cut Stones indicate a closer relationship than the majority acknowledged,¹⁷³ the Court should have included Halper in its "long line of cases."¹⁷⁴

The Court's omission of Halper from its "long line of cases" was likely due to the policy implications involved. If the Court had held that the civil forfeiture of proceeds or facilitating property was punitive for double jeopardy purposes, it would have eliminated an extremely useful tool in the nation's war against drugs. This would have been a major setback to law enforcement agencies at all levels of government. The majority had to distinguish Halper to avoid applying its "solely remedial" test because the forfeiture of facilitating property under _ 881(a)(4) and (a)(7) likely would not have passed constitutional muster under that analysis.

2. The Court's narrow construction of Halper

The majority in Ursery determined that the analysis in Halper was only appropriate for the "rare case" involving civil penalties such as fines.¹⁷⁵ Although the majority classified civil penalties as a form of liquidated damages compensating the government for harm caused by a defendant,¹⁷⁶ it determined that civil forfeitures "are designed primarily to confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct."¹⁷⁷ Due to these different objectives, the Court concluded that Halper could not be applied in the civil forfeiture context.¹⁷⁸

The Court's limitation of the analysis in Halper to civil penalties, however, was inappropriate. The majority misconstrued the Court's holding in Halper, merging the two rules it set forth.¹⁷⁹ Both the majority and Justice Stevens, in his dissent, agreed that Halper set forth a narrow rule for rare cases involving disproportionate civil penalties.¹⁸⁰ The majority, however, explicitly rejected the notion that Halper also set forth a general rule.¹⁸¹

As argued by Justice Stevens, Halper established a general rule 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.'"¹⁸² Although the majority in Ursery attempted to dismiss Halper's general rule as mere dictum, it did nothing to refute the fact that the Court in Austin expressly relied on this general rule.¹⁸³ As Justice Stevens noted in his dissent, "Austin expressly quoted Halper and followed its general rule that a sanction should be characterized as 'punishment' if it serves any punitive end."¹⁸⁴ It seems unlikely that the Court in Austin would have relied on what the majority in Ursery refers to as dictum. Contrary to the majority's opinion, the general rule set forth in Halper did exist, at least as far as the Court in Austin was concerned.¹⁸⁵

Furthermore, this general rule is applicable to all "civil sanctions,"¹⁸⁶ which, as the Court held in Kurth Ranch, includes civil forfeitures. In Halper, the Court "assess[ed] the character of the actual sanctions imposed on the individual" in determining "whether [the] particular civil sanction constitute[d] . . . punishment."¹⁸⁷ Subsequently, in Kurth Ranch, the Court expressly stated that "[criminal] fines, [civil] penalties, and [civil] forfeitures are readily characterized as sanctions."¹⁸⁸ Thus, although the Court in Halper examined the character of the sanctions, Kurth Ranch recognized that civil forfeitures constitute sanctions. Contrary to the majority's opinion in Ursery, therefore, Kurth Ranch extended Halper's analysis to include civil forfeitures as well as civil penalties.

By refusing to acknowledge the general rule in Halper, the Court in Ursery significantly lowered the threshold for characterizing civil statutes as remedial for double jeopardy purposes. Under the Halper test, which requires a solely remedial purpose, civil statutes are subject to a more rigorous analysis of whether they are indeed remedial in nature. Due to the majority's refusal to apply Halper, civil forfeiture statutes can have punitive aspects and yet be classified as remedial under the Double Jeopardy Clause.¹⁸⁹ In effect, because civil forfeiture statutes may be considered remedial while retaining punitive aspects, the government may circumvent the constitutional protections required in criminal proceedings. The lesser burden of proof in civil proceedings effectively is imported into the criminal realm.

B. The In Rem Fiction

In reaching its decision, the majority in Ursery relied heavily upon the distinction the Court made in Various Items between in rem civil forfeitures and in personam civil penalties.¹⁹⁰ Because the majority determined that civil forfeitures are in rem actions against property, such proceedings could not be deemed punishment for purposes of the Double Jeopardy Clause.¹⁹¹ The Court, however, placed too much importance on this distinction.

The difference between in rem civil forfeitures and in personam civil penalties is merely a "pedantic distinction."¹⁹² In Austin,¹⁹³ the Court made clear that it would give little weight to this distinction, declaring 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."¹⁹⁴ The primary purpose behind creation of the in rem fiction was to expand judicial jurisdiction over property in situations where the courts lacked in personam jurisdiction over individuals, not to create immunity from double jeopardy review.¹⁹⁵ Thus, the majority in Ursery went too far in relying upon this distinction to deny claimants double jeopardy protection.

Further, the Court in Austin expressly stated that "forfeiture proceedings historically have been understood as imposing punishment despite their in rem nature."¹⁹⁶ In Austin, the Court recognized that the in rem fiction rested on the idea that the owner was negligent in allowing his property to be involved in a crime.¹⁹⁷ The Court explained that "'such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by the forfeiture.'"¹⁹⁸ The Court realized that despite the civil forfeiture's in rem nature, the owner was being punished. Although the Court in Austin recognized that the in rem proceedings at issue were against the property and not the person, it refused to use this distinction as a reason to deny the defendants constitutional protections.¹⁹⁹ If the Court in Austin refused to rely on the in rem nature of the proceeding, the majority in Ursery should have done the same.

The majority's reliance on the distinction between in rem and in personam proceedings has, in Justice Stevens' words, "cut deeply into a guarantee deemed fundamental by the Founders."²⁰⁰ To underscore his point Justice Stevens, in his dissent, compared the circumstances under which Various Items and 89 Firearms were decided with those of Ursery.²⁰¹ Various Items involved the forfeiture of a Prohibition era distillery that served no other purpose than to manufacture illegal alcohol,²⁰² and 89 Firearms involved the forfeiture of firearms sold without a license.²⁰³ In contrast, Ursery involved a forfeiture action against an individual's home that served as a family residence.²⁰⁴ Justice Stevens asked what the Court's reaction would have been if Congress had authorized the forfeiture of all homes where alcohol was consumed in 1931.²⁰⁵ Under the Court's analysis in Ursery, Justice Stevens feared that merely labeling the statute "civil" or "in rem" may have been enough to avoid characterizing it as punitive for double jeopardy purposes.²⁰⁶

Justice Stevens' comments raise an important issue concerning forfeitures of facilitating property: Where do officials draw the line as to what facilitates a drug transaction? If someone uses a car to travel to the bank to withdraw money for use in a later drug transaction, does the car constitute facilitating property? If an individual uses a road map on a computer Internet program to locate where a drug transaction will occur, does the computer facilitate the drug transaction? Although courts never might face these particular circumstances, the hypothetical situations posited serve to highlight the potential for abuse by officials.

C. Ursery "Stands Austin on Its Head"²⁰⁷

In Ursery, the majority discredited the circuit courts' reliance on Austin, because "[it] was decided solely under the Excessive Fines Clause of the Eighth Amendment . . . which we never have understood as parallel to, or even related to, the Double Jeopardy Clause of the Fifth Amendment."²⁰⁸ The majority narrowly construed the Court's holding in Austin, determining that the only effect of Austin was to subject the forfeiture of facilitating property to the limitations of the Excessive Fines Clause of the Eighth Amendment,²⁰⁹ not the Double Jeopardy Clause.²¹⁰

The majority's contention that the Fifth and Eighth Amendments never have been understood as being "parallel" to each other, however, misses the point. The Sixth and Ninth Circuits did not find that the Fifth and Eighth Amendments were parallel to each other in their entirety, only that the definition of the word "punishment" within the two Amendments was parallel.²¹¹ As Justice Stevens observed, "[i]t 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."²¹² Justice Stevens further noted that it would "make little sense" to find that civil forfeiture may be punishment under the Excessive Fines Clause but not under the Double Jeopardy Clause.²¹³ Indeed, for the Framers of the Constitution to use the word "punishment" in the context of the Fifth Amendment and to use the same word just three amendments later, meaning something entirely different, makes no sense at all.²¹⁴

The majority in Ursery also determined that the approaches in Austin and Halper were "wholly distinct" due to the different purposes of the respective analyses under the Eighth Amendment Excessive Fines Clause and the Fifth Amendment Double Jeopardy Clause.²¹⁵ The majority maintained that analysis of a civil sanction under the Excessive Fines Clause asks whether a sanction is "so large as to be 'excessive,'" and analysis in the double jeopardy context asks whether the sanction has any remedial goals.²¹⁶ Concluding that Austin's holding applied only to the Excessive Fines Clause of the Eighth Amendment, the majority held that Austin could not be applied in the double jeopardy context.²¹⁷

The majority, however, failed to recognize that Austin expressly relied on the rule in Halper that a sanction is classified as punishment if it serves any punitive ends.²¹⁸ In Austin, the Court quoted Halper, stating "'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.'"²¹⁹ The Court in Austin applied the general analysis in Halper, concluding that the forfeiture of facilitating property did not "serve[] solely a remedial purpose."²²⁰ This analysis is identical to that used in Halper, and nowhere in Austin does the Court state or imply that it is "wholly distinct."

If the majority believed that the forfeiture of facilitating property did not constitute "punishment" for double jeopardy purposes, perhaps it should have overruled Austin. Contrary to the majority's assertion in Ursery, Austin applied Halper's analysis to the identical statute under review in Ursery,²²¹ concluding that it was punishment for Eighth Amendment purposes.²²² Thus at least in Austin, the Court understood the definition of "punishment" to be identical for purposes of the Fifth and Eighth Amendments. As Justice Stevens stated in his dissent in Ursery, the majority has "ignore[d] the fact that Austin reached the opposite conclusion as to the identical statute under review here."²²³

Civil forfeitures of proceeds and facilitating property pursuant to _ 881 have proven to be an effective tool in the nation's war against drugs, giving law enforcement agencies an edge against suspects and defendants. It has become common practice for the government to institute parallel criminal proceedings based on drug charges and civil forfeiture proceedings against property owned by the same defendant.²²⁴ Because of the usefulness of these parallel civil forfeiture proceedings, the Court's decision in Ursery likely was driven by policy, rather than dictated by precedent. Had the Court found the civil forfeiture statutes unconstitutional in Ursery, it would have invalidated an extremely effective law enforcement tool used in the war against drugs. Additionally, such a ruling would have raised doubts as to the constitutionality of similar statutes at all levels of government.²²⁵ Due to these considerations, the Court chose to find that neither of the forfeitures constituted punishment,²²⁶ thereby undercutting the Fifth Amendment's protection against double jeopardy, "a guarantee deemed fundamental by the Founders."²²⁷

Because the Court in Ursery held that civil forfeitures pursuant to _ 881 do not constitute punishment for double jeopardy purposes, it is likely that individuals facing drug charges now will be forced to defend themselves in two separate proceedings. Consequently, the government obtains a tactical advantage over defendants.²²⁸ Essentially, the government can use the civil trial as a test run for its criminal case against a defendant. Additionally, prosecutors can hone their trial strategies and perfect their presentation of evidence through successive trials.²²⁹ The government also may pursue a subsequent civil forfeiture action out of dissatisfaction with the outcome of the criminal prosecution. In more extreme instances, the government may use the threat of a parallel civil forfeiture action as leverage against criminal defendants. This may be used to encourage plea bargaining or guilty pleas in return for the government's promise not to pursue civil forfeiture actions against the family home or other valuable properties.²³⁰ These advantages and the potential for abuse-created as a result of Ursery-leave defendants in a vulnerable position.

Defendants also face the burdensome task of defending themselves in two separate proceedings. Defendants risk losing twice to the government and are forced to spend twice as much time and money on their defense. This burden is magnified for defendants who lack the economic resources necessary for extensive litigation. Not only are parallel proceedings an onerous burden, but they also diminish defendants' likelihood of success.

By excluding Halper from its "long line of cases," the Court in Ursery effectively gave its stamp of approval to all but the most poorly drafted civil forfeiture statutes. Without Halper's solely remedial test, 89 Firearms' two-prong test provides few obstacles to civil forfeiture statutes.²³¹ Congress merely has to exhibit an intent for the proceedings to be civil while being careful not to provide the courts with the "clearest proof" that the statute is punitive.²³² Civil forfeitures rarely will constitute punishment under this type of examination.²³³

Because civil forfeiture statutes are, for all practical purposes, immune from attack under 89 Firearms, it seems pointless for legislators to draft criminal forfeiture statutes. After Ursery, prosecutors can go forward with parallel civil forfeiture proceedings without concern for double jeopardy implications. The Court's holding in Ursery makes criminal forfeiture statutes unnecessary²³⁴ because the government may avail itself of the more favorable burden of proof in civil proceedings.

It seems more logical to conclude that Halper was not stating the rule for the rare case, but instead was refining the two-part analysis the Court set forth in 89 Firearms.²³⁵ Without Halper, the test in 89 Firearms creates extremely difficult burdens for claimants to overcome, and imposes relatively insubstantial hurdles for the government. As a result, all but the most poorly drafted statutes will pass 89 Firearms' two-prong test without judicial analysis of the statute's actual character. Including Halper within the majority's "long line of cases" would give more substantive meaning to the analysis of 89 Firearms and would level the playing field between defendants and the government.²³⁶

Under the first prong of 89 Firearms, the government need show only that Congress intended the civil forfeiture statute to be remedial.²³⁷ The majority in Ursery merely determined that the labels and procedures of _ 881(a)(4), (a)(6), and (a)(7) had a civil appearance, thus passing this prong.²³⁸ In contrast, the Court in 89 Firearms considered three factors in examining the civil forfeiture statute under this prong: (1) the procedural mechanisms of the statute;²³⁹ (2) the scope of the statute;²⁴⁰ and (3) the remedial aims furthered by the statute.²⁴¹ Under the third consideration, the Court in 89 Firearms examined the "broad remedial aims" of the statute before concluding that the forfeiture was a remedial civil statute.²⁴²

The analysis in 89 Firearms concerning the character of the statute is similar to the Court's inquiry in Halper.²⁴³ It is likely that the Court in Halper intended for its solely remedial test to refine the third factor within the first prong of 89 Firearms, examining the remedial aims furthered by a particular statute. This interpretation is supported by the Court's decisions in Austin and Kurth Ranch, which both suggest that Halper's analysis should be applied to civil forfeitures. If Halper were to be included in the 89 Firearms analytical framework as precedent indicates it should, the first prong would be the most logical place.

Including Halper within the third prong of 89 Firearms gives Halper more substantive meaning. Rather than merely examining labels and procedures provided by Congress, courts will examine the actual character of the statute at issue. The government will have the burden of proving the solely remedial character of a statute, without relying merely on the labels and procedures attached by Congress.

The Supreme Court's decision in Ursery severely weakened the Fifth Amendment protection against double jeopardy. Although precedent dictated otherwise, the Court concluded that the forfeiture of facilitating property under _ 881 (a)(4) and (a)(7) did not constitute punishment for purposes of the Double Jeopardy Clause. By narrowly construing the issues of relevant cases, the Court decided that facilitating the nation's war against drugs justified sacrificing the protections afforded to defendants by the Fifth Amendment. Consequently, drug offenders may face parallel criminal and civil forfeiture proceedings without the protections afforded by the Fifth Amendment. The government may use these parallel proceedings to obtain tactical advantages over defendants, thereby diminishing defendants' likelihood of success. The burden of defending themselves in parallel proceedings will remain on defendants unless the Court revisits the issue and re-establishes double jeopardy protections as mandated by the Constitution.