Posts Tagged ‘double jeopardy clause’

Crime and Punishment … and Punishment: Civil Forfeiture and the Double Jeopardy Clause

By Steven L. Kessler | Article Posted 5/26/96

“Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .”

Once upon a time, oh, about 204 years ago, there was a group of English gentlemen who sat around a beautifully polished table in Philadelphia and crafted a document that was meant to capture and embody the essence of human rights, many of which were denied them under their former rulers. That document, the United States Constitution, seemed to many to say it all. But, those old Brits were unhappy with their masterpiece. They desired instead to attach thereto a list of ten specific rights and protections for which no citizen should want. Those “amendments” to the masterpiece were called the Bill of Rights.

About halfway down that top ten list, inserted in the Fifth Amendment, was a clause that struck many as unnecessary. Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . . A bit archaic? Perhaps. An essential part of a democratic society? Absolutely. If a person is twice subject to punishment for the same offense, double jeopardy protection attaches and the person is spared from the second prosecution. The clause prevents a second prosecution for the same offense — following a conviction or an acquittal — and multiple punishments for the same offense.

Double Jeopardy

The founding fathers were not the first to conceive of the concept of double jeopardy. While the concept of double jeopardy first emerged in the English common law nearly seven hundred years before its adoption in the Bill of Rights, its roots lie even deeper in antiquity. Known to the Greeks and Romans, the notion of double jeopardy is found in the Digest of Justinian promulgated in the year 533. There, the concept is expressed as “The governor should not permit the same person to be again accused of a crime of which he had been acquitted.” The canon law had also long recognized that even God does not punish twice for the same act.

These early civil and canon law roots from which the modern notion of double jeopardy grew became evident in the common law of England during the 12th century reign of King Henry I (1100-1135). Under Henry I’s rule, the need for double jeopardy protection was particularly important, because punishment upon a second conviction for almost any offense was death or mutilation. It appears, then, that the historical derivation of the Fifth Amendment phrase “in jeopardy of life or limb” is from a gruesomely literal source.

The doctrine gained a more secure foothold in the common law during the reign of King Henry II (1135-89), arising from the king’s close relationship to Thomas Becket, his Lord Chancellor and later Archbishop of Canterbury. Becket, using his high church office, challenged Henry II’s Clarendon Articles, which made the clergy, already subject to trial and punishment in ecclesiastical courts, subject also to being convened before lay judges. The controversy between the two erstwhile friends resulted in Becket’s murder, and his subsequent canonization. But in 1176, Henry II conceded St. Thomas’ point that “no man ought to be punished twice for the same offense,” thereby firmly fixing the notion of no double punishment in the common law.

The important aspect of the rule that for modern day purposes limits the sovereign’s power to prosecute did not become a feature of double jeopardy in England until the end of the 13th century. Previously, criminal prosecution frequently depended on suits by private persons. The practice of initiating criminal prosecution by private appeal was a survival of Anglo-Saxon law, and was not wholly abolished in England until 1819. During the 13th century, indictments by the Crown existed in parallel with private prosecutions. A judgment of acquittal or conviction in a suit brought by a private person barred that person’s further suit, and judgment on an indictment by the Crown barred further suit by the Crown. But double jeopardy principles did not prevent the Crown from bringing further suit in cases where a private person’s suit had resulted in an acquittal. By the 15th century, acquittal on a private appeal, after trial by jury, barred indictment by the Crown, and an acquittal on an indictment generally barred further prosecution for the same offense by appeal. Thus, the right of private appeal fell into disuse, and repeated prosecution for the same crime began to be eliminated.

The two English common law commentators who most influenced colonial American jurisprudence were Sir Edward Coke and Sir William Blackstone. Blackstone in his commentaries penned the oft-quoted statement: “The plea of autrefois acquit, for a former acquittal, is grounded on the universal maxim . . . that no man is to be brought into jeopardy of his life, more than once, for the same offense.”

During the 17th century, when Coke’s writings appeared, double jeopardy began to assume the outline of its present form. Yet even in the writings of Coke and Blackstone, the protection is narrower than in contemporary American doctrine. Coke believed that double jeopardy was not an absolute, but a conditional protection, depending upon the quality of the prior acquittal. Blackstone noted that the concept was limited to felonies, and that for the doctrine to apply there was a requirement for either a guilty verdict or an acquittal.

That double jeopardy in America is a more fundamental right than in England may be traced back to early colonial times. The Massachusetts Bay Colony extended its protection to all criminal prosecutions and to civil trespass as well. In New England’s first established code of laws, the Body of Liberties, the Massachusetts Bay Colony provided: “No man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse.” James Madison, who fathered the doctrine in the Bill of Rights (1791), proposed that it read: “No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense.” The Supreme Court later stated as a settled principle of the common law that no person may be twice punished in the same court on the same facts, for the same offense, or “as Coke has it, ‘Nemo debet bis puniri pro uno delicto.’ No one can be twice punished for the same crime or misdemeanor . . . .”

Civil Forfeiture

The tale of civil forfeiture has a different beginning, although its presence in today’s jurisprudence is creating quite a stir. Despite being relatively new to us, the concept of forfeiture was acknowledged even before the Greeks. In Exodus, chapter 21, verse 28, it is written: “If an ox gore a man or a woman that they die, then the ox shall be surely stoned, and his flesh shall not be eaten. But the owner of the ox shall be quit.” The perfect civil forfeiture? Not really. Here, unlike in a true civil forfeiture, the sovereign did not get the offending property or its value. Nor did society benefit by eating the ox. Rather, this was a social justice, probably to discourage revenge from the deceased’s family.

As our predecessors traveled through the generations, they adopted many of the Biblical practices. Revenge was the common thread. Rome had its Twelve Tables. The Greeks followed closely behind. And Britain had its common law. Indeed, at common law, civil forfeitures were in the nature of a deodand, the spiritual predecessors of forfeiture statutes”. Derived from the Latin phrase “Deo Dandum”, meaning “to be given to God”, the deodand itself originated in pre-Judeo-Christian practices. These practices, similar to the Talmud’s interpretation of the “goring ox” passage, reflect the view that the instrument of death is accused and that religious atonement is required. Property or its value was given to the Crown “with the belief that the king would provide money for masses to be said for the good of the dead man’s soul, or insure that the deodand was put to charitable uses.” For the kings, however, the motivation was hardly spiritual. It was pure, unadulterated greed.

In medieval times, the scope of forfeiture was absolute. Known as “forfeiture of estate”, it deprived the offender of all personal and real property. Subsequently, under the guise of redressing a loss caused by criminal activity, civil forfeiture became a premium source of revenue for the Crown in common law England. Centuries later, long after the religious purpose of the deodand had ended, the practice remained a source of revenue for the Crown and was further supported as a deterrent to negligence. The final justification, however, remained revenue, and lots of it. It was fundraising at its best. Things were so frustrating for the commoner, and lord alike, in merry old England that, bowing to their pressure, one of the concessions granted in the Magna Carta was the creation of what was called the “year and the day” rule. The king held real property for non-treasonous offenses of one year and a day, after which time the property would revert to a tenant’s lord. Personalty, however, would escheat to the Crown.

When the British left home and settled a New World called America, they brought with them many of their old, indeed despised, habits. Remarkably, too, when a custom, formerly distrusted, was seen from the opposite side of the fence for the first time, it looked much better. This was true with forfeiture. Although “forfeiture of estate” was abolished for federal offenses by the first Congress of the United States in 1790, and the Federal Constitution protected property through both the Due Process Clause and a specific limitation on the scope of forfeiture in the context of treason, the forfeiture tradition was maintained in the colonies through the maritime and customs laws, the reason why some of the more powerful federal forfeiture laws today are codified in the Admiralty laws. The founding of a new nation did little to change these ancient traditions. Almost immediately following the adoption of the Constitution, ships and cargo were made subject to forfeiture under federal law. Indeed, in justifying modern civil forfeiture statutes, the Supreme Court concluded that they were “too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced.” So much for thorough examination and constitutional analysis. Today’s civil forfeiture is truly quasi-criminal in nature, as is evident by the protections offered litigants is such proceedings.

The Lion and the Lamb

Which brings us to the present. As illustrated, double jeopardy and civil forfeiture were not born of the same parents. Yet, in the last twenty years, they have grown up, parallel, side by side, with little supervision. That unsupervised play, however, has come to an abrupt halt, and the courts have begun to oversee the courtship between these two powerful concepts. This article will discuss the relationship between these two doctrines, and the issues which may — or should — come before the courts in the near future.

Same Conduct

Any double jeopardy analysis must, of course, begin with a determination of whether the conduct underlying both prosecutions is the same. If the crime for which the defendant was prosecuted is different from the offense on which forfeiture was based, the later prosecution will be permitted to proceed. The test in place today is the “same elements” test. This test focuses on whether each offense contains an element not contained in the other. If not, they are the “same offense” and double jeopardy bars additional punishment. Under Blockburger and its progeny, if the second crime cannot be abstracted from the elements of the first, the second crime is a species of a lesser-included offense and satisfies the “same-element” test.

This test is not always a stressful one. In determining whether the cases involve the same offense, one court merely compared the indictment with the civil forfeiture notice, complaint of affidavit. Where the indictment charges many counts spanning criminal conduct over an extended time period, however, the process may be a bit more difficult. Presented with this scenario, the court in United States v. Plunk dismissed the counts which the government had reason to believe the defendant had committed at the time of the seizures and which were the basis for the administrative forfeitures. The defendant’s motion to dismiss was denied with respect to the remaining counts.

In City of Portland v. 1985 Porsche 944, a man was criminally prosecuted for soliciting a prostitute while in his Porsche. Subsequently, the city sought forfeiture of the car in a civil forfeiture proceeding. Using classic language and reasoning on the double jeopardy issue, the court held that the “city’s civil forfeiture complaint is based on precisely the same conduct that was addressed in the state’s criminal case, and it addresses identical violations of identical laws.” The court had no difficulty with the fact that the defendant was charged with solicitation by the state and the car was seized and prosecuted by the city, reasoning that the two proceedings could have been combined.

Jeopardy will not attach when a count is dismissed pursuant to a plea bargain. The courts have indicated that in such an instance, the defendant’s remedy is to seek enforcement of that plea bargain, a type of specific performance.

Two courts have addressed the issue of when jeopardy attaches in the civil forfeiture context. In United States v. Stanwood, the court held that the entry of final judgment is when jeopardy attaches in a civil forfeiture case. Accordingly, in Stanwood, since the defendant pled guilty before the entry of the forfeiture judgment, his criminal conviction was the first punishment and did not violate double jeopardy.

In United States v. Oakes, the facts were a bit different. On March 6, 1991, Petitioner pleaded guilty and simultaneously forfeited his interest in his family’s home, which was the subject of the civil forfeiture action, pursuant to the plea agreement. It is important to note, however, that the criminal indictment did not include a forfeiture count. In addition, neither of the criminal judgments referred to the forfeiture.

Subsequently, the court sentenced the Petitioner to six months alternative custody and three years probation. On August 28, 1991, the court entered its formal written sentencing judgment. On January 4, 1992, the Petitioner began serving his sentence. Five days later, a decree of forfeiture was entered against the real property, following the resolution of the third party claims of petitioner’s father.

Petitioner argued that punishment attached in the criminal context when he commenced serving his sentence on January 4, 1992. Because punishment was imposed in the civil action at the time he forfeited his interest in his real property pursuant to the plea agreement on March 6, 1991, Petitioner argued that the criminal sanction occurred after the civil sanction and constituted the second prohibited punishment.

The government took a different approach. Jeopardy in the criminal context attached when the court pronounced its sentence, while in the civil context it attached when the decree of forfeiture was entered. Thus, the government contended, because the decree was entered in the civil action on January 9, 1992, it was the second prohibited punishment.

The court found that punishment in the forfeiture proceeding — the first punishment — occurred at the time of the guilty plea. On that date, the court said, the Petitioner lost his interest to his real property. In response to the government’s argument that title to the real property was not perfected until later, the court stated: We are here concerned with the issue of when punishment was imposed, not when title was perfected. The Government’s argument therefore failed, because it presupposed the conclusion that punishment was not imposed until title was perfected. Yet, as the court found, clearly, Petitioner was punished when he forfeited his interest. This punishment was not abrogated by the fact that the Government subsequently had to address the interests of third parties claiming a right to the property.

Finally, the court found that, at the time of the plea, the Government considered Petitioner’s interest forfeited. “This court, however, cannot allow the Government to, in essence, change its mind three years after the civil action was closed. If, in 1991, the Government took the position that Petitioner forfeited his interest pursuant to his plea agreement on March 6, 1991, than it cannot now attempt to argue that nothing was lost on that date.” Lots of equity here.


The question giving the courts the most difficulty in this double jeopardy analysis is whether the civil forfeiture of assets constitutes punishment. The answer for many courts is a resounding: It depends. Some courts have decided the issue based upon a comparison of the type of property involved in the forfeiture action with the value of the property in relation to the damage caused by the underlying crime. Kind of intertwining an Eighth Amendment excessiveness analysis with the double jeopardy test. Others have compared the statutes themselves, arguing that any civil sanction, such as civil forfeiture, 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.”

For the answer to the question, however, one should turn to two recent Supreme Court opinions, Austin v. United States and Department of Revenue of Montana v. Kurth Ranch. In Austin, the Supreme Court focused its analysis on the punitive effect of the forfeiture upon the property owner rather than on the civil or criminal nature of the provision. Using an exhaustive review of English and American law and the historical understanding of forfeiture as support, the Court held that forfeitures are inherently punitive, thereby constituting punishment for purposes of the Excessive Fines Clause of the Eighth Amendment. The Court refused to conclude that forfeitures pursuant to section 881(a)(7) and (a)(4) served solely remedial purposes. Rather, they also had deterrent and retributive goals. The critical question, the Court observed, is whether the forfeiture can be defined as solely remedial, not whether the forfeiture is solely punitive. The Court rejected the notion that the multiple part test from Kennedy v. Mendoza-Martinez must be used, finding that such a test was limited solely to determine whether constitutional protections incident to a criminal trial must be applied to a civil action. It thereby set, for the first time, a Constitutional limitation on the government’s power and authority to seize and forfeit property.

Justice Blackmun questioned the use of forfeiture’s legal fiction as a matter of constitutional law:

If forfeiture had been understood not to punish the owner, there would have been no reason to reserve the case of a truly innocent owner. Indeed, it is only on the assumption that forfeiture serves in part to punish that the Court’s past reservation of that question makes sense.

The Court concluded:

[E]ven though this Court has rejected the “innocence” of the owner as a common-law defense to forfeiture, it consistently has recognized that forfeiture serves, at least in part, to punish the owner. See Peisch v. Ware, 4 Cranch, at 364 (“the act punishes the owner with a forfeiture of the goods”); Dobbins’s Distillery, 96 U.S., at 404 (“the acts of violation as to the penal consequences to the property are to be considered just the same as if they were the acts of the owner”); Goldsmith-Grant Co., 254 U.S., at 511 (“‘such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by the forfeiture'”). More recently, we have noted that forfeiture serves “punitive and deterrent purposes,” Calero-Toledo, 416 U.S., at 686, and “imposes an economic penalty,” id., at 687. We conclude, therefore, that forfeiture generally and statutory in rem forfeiture in particular historically have been understood, at least in part, as punishment.

In its statutory analysis, the Court discussed Halper positively, but, unlike in Halper, the Court held that forfeiture statutes were not designed to serve remedial goals with only an occasional punitive affect. Instead, the Court held that forfeiture statutes were designed to be, and are, punitive.

The Court left for lower court interpretation the formulation of a test to be used in determining the excessiveness and disproportionate nature of a forfeiture. In his concurrence, however, Justice Scalia said that the “relevant inquiry for an excessive forfeiture under 881 is the relationship of the property to the offense: Was it close enough to render the property, under traditional standards, ‘guilty’ and hence forfeitable?” It remains to be seen if this becomes the test used by the courts, or if some hybrid balancing of the value and use of the property becomes the norm. The latter would be preferable. The “taint” theory, discussed above, retains potential for disproportionate forfeitures. There must be some provision to enable a court to do “the right thing” rather than merely follow the cold black letter language of a statute. As has been illustrated with the federal sentencing guidelines, rigidity does not work well in our judicial system. “Justice” is the result everyone desires, not fund-raising.

In his concurrence, Justice Scalia also questioned the Court’s focus on the culpability of the property owner in determining whether forfeiture is punitive. Following an extensive discussion of the differences between in rem and in personam forfeiture as they relate to the punishment, Justice Scalia raised an interesting point:

If the Court is correct that culpability of the owner is essential, then there is no difference (except perhaps the burden of proof) between the traditional in rem forfeiture and the traditional in personam forfeiture.

According to Justice Scalia, the offense of which the owner/claimant has been convicted is not relevant to the forfeiture.

Section 881 requires only that the Government show probable cause that the subject property was used for the prohibited purpose. The burden then shifts to the property owner to show, by a preponderance of the evidence, that the use was made without his “knowledge, consent, or willful blindness,” 21 U.S.C. 881(a)(4)(C), see also (a)(7), or that the property was not so used. See 881(d) (incorporating 19 U.S.C. 1615). Unlike monetary fines, statutory in rem forfeitures have traditionally been fixed, not by determining the appropriate value of the penalty in relation to the committed offense, but by determining what property has been “tainted” by unlawful use, to which issue the value of the property is irrelevant. Scales used to measure out unlawful drug sales, for example, are confiscable whether made of the purest gold or the basest metal. But an in rem forfeiture goes beyond the traditional limits that the Eighth Amendment permits if it applies to property that cannot properly be regarded as an instrumentality of the offense — the building, for example, in which an isolated drug sale happens to occur. Such a confiscation would be an excessive fine. The question is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.

Although leaving his answer for another time, Justice Anthony Kennedy was also troubled by the issue of whether forfeiture would be permitted when the property owner committed no wrong of any sort, intentional or negligent. “That for me would raise a serious question.” Justice Kennedy also reserved judgment on whether an in rem forfeiture would always amount to an intended punishment of the owner of the forfeited property.

Interestingly, before Austin was announced, the Northern District of New York struck down, as a violation of the Eighth Amendment, a forfeiture of a family residence for a seven gram marijuana sale, worth $45, on the premises and possession of another six ounces of marijuana inside the home. Analyzing the facts before it using the three-prong test set down by the Second Circuit in United States v. 38 Whalers Cove Drive, the court in United States v. Real Property at 835 Seventh Street, Rensselear, N.Y., deemed the forfeiture of the claimant’s $69,778 equity in the home “clearly disproportionate”, bordering on “aberrational”, and in excess of any legitimate civil purpose for the forfeiture. Since, under the statute, the law required forfeiture of all or nothing, the court felt it better to err on the side of protecting the owner’s constitutional rights and dismiss the forfeiture action than to overcompensate the government for implementing the drug laws.

In 835 Seventh Street, it is important to note several things. First, this case involved the forfeiture of the claimant’s home. Thus, the fact that the court disallowed the entire forfeiture may have had something to do with a homestead-type analysis.

In addition, the court used as part of its analysis the federal sentencing guidelines and the range, especially relating to fines, subject to which the defendant would have been in the underlying criminal case. Because of the discrepancy between this range and the penalty of forfeiture, the court dismissed the government’s forfeiture action. The tests used by the district court may be a starting point for the test left open by the Austin court.

It appears, then, that the Supreme Court has overcome its adolescent fixation that civil forfeiture is remedial in nature. Laughable as it was, the extensive history of this flawed “fictitious” rationale was anything but humorous. It remains to be seen what direction the state courts will take in interpreting their own constitutions.

As a reflection of the far-reaching impact Austin is likely to have, on January 7, 1994, the Justice Department issued a 63-page memorandum, ostensibly to “provide guidance and uniformity in responding to excessiveness challenges” stemming from Austin and Alexander. The memorandum is important, not just for its content but for its tone as well. The courts and defense bar should use it to gain insight into the mindset of the government prosecutors and prepare to counter their arguments.

The Courts deal with this Dilemma

So, at least to the majority of the Supreme Court justices, civil forfeiture is punishment. That being the case, the issue seems relatively clear. Or so one might think. However, with fact patterns varying and courts clearly inclined to forfeit a defendant’s property and keep a steady flow of money into law enforcement coffers, the picture has been clouded by a mixture of other arguments.

First, one must understand the history of the often violent clash between civil forfeiture and double jeopardy. The Supreme Court itself twice has rejected double jeopardy challenges to civil forfeiture actions. Each time, the Court analyzed the relevant forfeiture statutes and concluded that the forfeiture served a remedial function, not a criminal punishment, and consequently did not violate double jeopardy. In United States v. One Assortment of 89 Firearms, the forfeiture of firearms following owner’s acquittal of dealing firearms without a license was found to be remedial because it removed dangerous or illegal items from society. In One Lot Emerald Cut Stones v. United States, the Court held that forfeiture of emeralds and a ring following owner’s acquittal of smuggling was remedial because it was similar to a “reasonable form of liquidated damages”. The remedial purposes identified by the Supreme Court were (1) controlling or preventing the circulation of regulated or forbidden merchandise, and (2) reimbursing the government for the expenses of investigation and enforcement. Clearly, these decisions were result oriented.

United States v. Halper

But more recent Supreme Court and circuit courts decisions have counseled that a civil forfeiture constitutes punishment and thereby triggers the protection of the Double Jeopardy Clause. In United States v. Halper, the Supreme Court addressed what it characterized as an unresolved problem: “whether and under what circumstances a civil penalty may constitute punishment for purposes of the Double Jeopardy Clause [of the Fifth Amendment].” In Halper, a civil defendant alleged that he could not be prosecuted for a “civil” violation of the federal False Claims Act after he had already been criminally prosecuted for the same conduct as a criminal offense under 18 U.S.C. section 287. The Supreme Court agreed.

In reaching its conclusion, the Court declined to follow the contention of the government that “punishment” in the relevant sense is melted out only in criminal proceedings, and that whether proceedings are criminal or civil is a matter of statutory construction.” The Court distinguished a prior opinion to the effect as not dealing with the “‘humane’ interests safeguarded by the Double Jeopardy Clause.” After reviewing its prior precedent, the Court drew the following line:

[I]t follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose but rather can be explained only as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.

The Court did not hold that remedial civil sanctions which “carry the sting of punishment” are therefore criminal. Rather, the Halper opinion stated “merely that in determining whether a particular civil sanction constitutes criminal punishment, it is the purposes actually served by the sanction in question not the underlying nature of the proceeding giving rise to the sanction, that must be evaluated.” In the case before it — a subsequent civil suit in which the civil financial sanction bore no rational relation to the government’s losses — the Court held that the “civil” sanction imposed criminal punishment for purposes of triggering the Double Jeopardy Clause of the Fifth Amendment.

The Supreme Court returned to the borderline between civil and criminal law in Browning-Ferris Indus.v. Kelco Disposal, a case which asked whether the Excessive Fines Clause of the Eighth Amendment applied to punitive damage awards in state civil actions. While the Browning-Ferris opinion answered this question in the negative, its reasoning shed further light on the dividing line between civil and criminal actions under the Constitution.

According to the Browning-Ferris opinion, although punitive damages are clearly punitive and serve public interests other than that of compensating tort victims, they are pursued by private parties, not government entities. Of course, punitive damage awards are enforced by the states. But, according to the Supreme Court:

Here the government of Vermont has not taken positive step to punish, as it most obviously does in the criminal context, nor has it used the civil court to extract large payments or forfeitures for the purpose of raising revenue or disabling some individual.

The Browning-Ferris opinion went on to distinguish the Halper case as one involving the Government’s effort to exact punishment in a civil action, whereas the plaintiff in Browning-Ferris was a private party who would obtain the punitive award.

The upshot of these two opinions was that if the government-initiated sanctions are punitive in purpose or effect, they are criminal within the meaning of the Fifth Amendment. Moreover, Halper in particular signaled a shift away from the deferential position the Court had taken earlier toward legislative characterizations of statutes as being civil or criminal. When applied to the proposed application of “civil” forfeiture beyond an area justified by a taint rationale, Halper clearly illustrated that the sanction imposed would be punitive in effect, as it bears no relation to government losses, and Browning-Ferris suggested that this would be a government-initiated “forfeiture[] for the purpose of raising revenue or disabling some individual.” If such a disabling forfeiture is sufficiently punitive to trigger the constitutional protections of the Double Jeopardy Clause of the Fifth Amendment or the Excessive Fines Clause of the Eighth Amendment, it likewise triggers the Due Process Clause of the Fifth Amendment and the incorporated criminal process rights thereunder.

In Halper, the Court concluded:

[U]nder the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.

The Court cautioned against widespread application of its holding, noting that this was “a rule for the rare case” where the civil sanction was “overwhelmingly disproportionate to the damages … caused.”

After Halper, none of those who requested double jeopardy protection met with success. One court summarily concluded that Halper simply did not apply to forfeiture proceedings. In United States v. McCaslin, the court found no double jeopardy violation where the defendant was required to forfeit a $30,000 equity interest in property that was used to cultivate marijuana. The court noted that “Halper has no application to the very ancient practice by which instrumentalities of a crime may be declared forfeit to the government.” But McCaslin clearly has been overruled by the Supreme Court in Austin. Finding civil forfeiture to be punishment, the Court held that the government’s power to forfeit was limited by the Excessive Fines Clause of the Eighth Amendment. The key was that the instant forfeitures operated at least “in part” as punishment. Repeatedly citing Halper, the Court also limited One Assortment of 89 Firearms and One Lot Emerald Cut Stones, citing those cases as instances where the forfeitures were “purely remedial”.

Separate Proceedings

The prohibition against multiple punishments is only triggered where the government seeks to impose the punishments in separate proceedings. After Austin was decided, but still seeking that “just” resolution whereby all the property would be forfeited, two courts innovatively side-stepped Austin. In United States v. Millan, the government indicted the defendants on counts including conspiracy and criminal forfeiture relating to a heroin distribution ring. Subsequently, the government filed a civil forfeiture action based upon the same conduct and offenses. Two of the defendants then settled with the government in return for the release of a portion of the seized property.

Before trial, two of the defendants filed a motion to dismiss the superseding indictment on double jeopardy grounds, relying on Halper. The Second Circuit rejected this challenge and held that the settlement agreement “was part of a single coordinated prosecution of persons involved in alleged criminal activity”. Therefore, there was not a “separate” prosecution for double jeopardy liability.

Shortly after Millan, the Eleventh Circuit echoed the Second Circuit’s reasoning and held that parallel civil forfeiture proceedings did not constitute “separate proceedings” for double jeopardy purposes. In United States v. 18755 N. Bay Road, the court relied upon the “simultaneousness” of the civil and criminal proceedings as “falling within the contours of a single, coordinated prosecution”. The courts in Millan and 18755 North Bay Road reasoned that the parallel proceeds were really a “single action”, distinct only in procedure.

But if decisions from the Seventh and Ninth Circuits are any indication, this battle is far from over. In United States v. Torres, the Seventh Circuit strongly suggested that the government should seek forfeiture and criminal sanctions in a single proceeding to avoid a double jeopardy problem. In Torres, the defendants purchased $60,000 of cocaine from undercover agents. The government filed separate but parallel criminal and administrative forfeiture proceedings against Torres and the money, respectively. Torres pled guilty in the criminal case but did not file a claim in the forfeiture proceeding. In his appeal from a sentence of 73 months in the criminal case, he argued that the forfeiture, which occurred first, was a former jeopardy which barred the subsequent sentence of imprisonment.

The Seventh Circuit upheld Torres’ plea and sentence. In dictum, however, the court said that the government “would do well to seek imprisonment, fines and forfeiture in one proceeding”. “The nomenclature ‘civil’ does not carry much weight” anymore, the court said. The court stated that cumulative punishments imposed in a single proceeding are permissible, encouraging the government to seek both imprisonment and forfeiture in the same indictment.

The court saw the Supreme Court’s decision in Department of Revenue of Montana v. Kurth Ranch as dispositive. In Kurth Ranch, the Court held that the imposition of a drug tax upon person arrested and convicted for drug offenses relating to the same illegal conduct violates the Fifth Amendment prohibition on successive punishment for the same offense, counting as a separate jeopardy for purposes of double jeopardy. The Court found that “[t]he proceeding Montana initiated to collect a tax on the possession of drugs was the functional equivalent of a successive criminal prosecution that placed the Kurths in jeopardy a second time ‘for the same offense.'” Using the framework of Halper to determine whether the Montana tax could be fairly characterized as punishment within the meaning of the double jeopardy prohibition, the Supreme Court recognized that governments may and often do tax unlawful activities. Additionally, the Supreme Court acknowledged that “neither a high rate of taxation nor an obvious deterrent purpose automatically makes this tax a from of punishment.”

However, the Supreme Court found four factors to be of great significance:

(1) the high rate of tax, being a multiple of the value of the property being taxed; (2) the deterrent, rather than revenue-raising, purpose for the statute; (3) the fact that the tax hinges on the commission of a crime and is exacted only after the taxpayer has been arrested for the precise conduct that gives rise to the tax obligation in the first place; and (4) the fact that the tax is levied on goods that the taxpayer neither owns nor possesses when the tax is imposed, since the state already has destroyed the contraband goods at the time the tax is assessed.

As in Halper, the Kurth Ranch Court rejected the government’s argument that it was merely attempting to raise revenue for the remedial purpose of defraying the costs of prosecuting drug criminals. Here, the state had made no showing that there was any such relationship, and it was obvious from the statutory scheme that “the formula by which Montana computed the tax assessment would have been the same regardless of the amount of the state’s damages and, indeed, regardless of whether it suffered any harm at all.”

The Court explained that Montana could have chosen to levy this tax, to exact a punishment on the Kurths, without violating their legal rights. What Montana did wrong, said the Court, was to levy this punitive tax as a second punishment or the same offense for which the Kurths earlier had been indicted and convicted.

But the Supreme Court said that “Montana no doubt could collect its tax on the possession of marijuana, for example, if it had not previously punished the taxpayer for the same offense, or indeed, if it had assessed the tax in the same proceeding that resulted in his conviction.” To the Torres court, however, the Supreme Court’s decision in Kurth Ranch, decided after both Millan and 18755 North Bay Road, would have required different results in the “single action” cases. “Civil and criminal proceedings are not only docketed separately but also tried separately, and under the double jeopardy clause separate trials are anathema.”

Under the government’s theory, and under the reasoning in Millan, because the tax assessment proceeding and the criminal prosecution were pending at the same time, they constituted part of single coordinated prosecution. However, the Supreme Court in Kurth Ranch concluded that the four proceedings involved in that case — a criminal prosecution, a civil forfeiture, a civil tax assessment and a bankruptcy proceeding — were not part of a single coordinated prosecution, but instead were four separate proceedings. Had the Supreme Court utilized the Millan analysis, the Court would have held that the Montana tax was not barred by double jeopardy.

Unfortunately for the defendant in Torres, he never made a claim for the $60,000 and consequently did not become a party to the forfeiture. As the forfeiture action proceeded without opposition, jeopardy did not attach. “If Torres lacked an interest in the cash, its forfeiture did not impose any penalty on him, and again the argument derived from Kurth Ranch fails. . . . Torres is not entitled to escape time in prison just because the forfeiture may have penalized one of his confederates in crime, even his best friend.” The moral of this story is easy: Object to all forfeiture proceedings and file timely claims and answers.


Speaking of waiver, in United States v. Morgan, the Second Circuit in April 1995 held that the waiver of a double jeopardy argument must be voluntary, knowing and intelligent, shown to have been done “with awareness of its consequences.” The presumption is against the waiver of such a constitutional right. In that case, the defendant conceded knowledge that a criminal investigation was pending against him when he signed a stipulation waiving the government’s right “to bring other actions.” Because the settlement did not contain language expressly stating that the defendant would be barred from asserting double jeopardy as a defense in future criminal proceedings, the court held that it could not operate as an effective waiver of his constitutional right. Were the rule otherwise, the court held, the government, when entering into a civil settlement, “could safely prevent any double jeopardy defense being raised in a later criminal proceeding simply by advising the putative defendant of the existence of a criminal investigation against him. We reject the notion that a constitutional right may be waived in such an implied fashion.”

It should be noted, however, that, as illustrated, the fact that the double jeopardy protection is of constitutional magnitude does not mean that it cannot be waived. Indeed, as the Supreme Court found, double jeopardy is a personal constitutional right that can be waived. Where there is an opportunity to oppose the action and the defendant decides to forego that opportunity, there is no functional equivalent of a successive prosecution for the same offense. As such, no determination of personal culpability has occurred. Therefore, without risk of determination of guilt, jeopardy does not attach.

Notable in this area are the cases dealing with administrative forfeiture proceedings. Where a petitioner defaulted or failed to file a claim in the administrative proceedings, usually he has not in any way demonstrated that he has been punished with respect to the forfeiture, a finding which is essential to a claim of a double jeopardy violation. For a court to determine whether the civil proceeding constituted a punishment, one would have to quantify the value of petitioner’s interest in the seized property to determine whether the forfeiture lacked any remedial character. A default in the administrative case would result in petitioner losing his standing to make such a claim and to proceed further.

The Ninth Circuit Chimes In: United States v. $405,089.23 U.S. Currency

In the wake of the Torres decision, and in what may prove to be a sign of a most significant shift in analysis, the Ninth Circuit found that the Double Jeopardy Clause mandated the dismissal of a civil forfeiture proceeding that had been instituted less than one week after a grand jury indictment that resulted in the defendants’ convictions. In United States v. $405,089.23 U.S. Currency, the government seized defendants’ cash and stayed the forfeiture proceeding pending the disposition of the parallel criminal case. Eight months after the defendants’ convictions for conspiracy and money laundering, the government moved for summary judgment in the forfeiture proceeding, relying entirely on the criminal convictions and supporting documentation. The district court granted the motion, stating that defendants’ convictions, standing alone, were sufficient to demonstrate probable cause for the forfeiture.

The Ninth Circuit reversed. “The forfeiture complaint in this case was based on precisely the same conduct addressed in the claimants’ criminal case, and it sought to forfeit title to the claimants’ property on the basis of precisely the same violations of the same statutes.” “We are not willing to whitewash the double jeopardy violation in this case by affording constitutional significance to the label of ‘single, coordinated prosecution.'”

The circuit court also made it clear that the civil forfeiture proceeding and the criminal action did not constitute a “single, coordinated prosecution”, as alleged by the government. “We fail to see how two separate actions, one civil and one criminal, instituted at different times, tried at different times before different fact-finders, presided over by different district judges, and resolved by separate judgments, constitute the same ‘proceeding’.” Where the government chooses to proceed against claimants on two separate fronts in parallel proceedings, the government gains a significant advantage in having the civil forfeiture action heard before the criminal trial. “We believe that such a coordinated manipulative prosecution strategy heightens, rather than diminishes, the concern that the government is forcing an individual to ‘run the gauntlet’ more than once.” The Double Jeopardy Clause, at its most fundamental level, protects an accused from being forced to defend himself against repeated attempts to exact one or more punishments for the same offense.

The court’s analysis involved a two-pronged test: (1) whether the civil forfeiture action and the claimant’s criminal prosecution constituted “separate proceedings” and (2) whether forfeiture under 18 U.S.C. 881(a)(6) and 18 U.S.C. 981(a)(1)(A) constitutes “punishment”. The court found that each action seeks to impose “punishment” and each constitutes a “separate proceeding”. The court cited as support the Supreme Court’s 1977 decision in Jeffers v. United States, in which the Court held that parallel prosecutions for conspiracy and continuing criminal enterprise, both of which were part of what could be categorized as a single and coordinated, albeit criminal, prosecution, were barred by the Double Jeopardy Clause. Even more so, the Ninth Circuit said, “we can discern no reason why two proceedings should be deemed one when one of the proceedings involves a criminal prosecution and the other a civil forfeiture action. . . . [A] civil forfeiture action which is brought and tried separately from a criminal prosecution and is based upon the same offense constitutes a separate ‘proceeding'”.

As to the issue of punishment, the court had no trouble finding Austin conclusive as to the issue of “punishment”. “[T]he only fair reading of the Court’s decision in Austin is that it resolves the “punishment” issue with respect to forfeiture cases for purposes of the Double Jeopardy Clause [of the Fifth Amendment] as well as the Excessive Fines Clause [of the Eighth Amendment]. In short, if a forfeiture constitutes punishment under the Halper criteria, it constitutes punishment for both clauses.

Interestingly, the $405,089.23 court rebuked the Fifth Circuit’s decision in United States v. Tilley. In Tilley, the Fifth Circuit ruled that a prior civil forfeiture of “proceeds” was not punishment under Halper and, consequently, did not preclude a subsequent prosecution based upon the same underlying offense. Tilley involved the forfeiture of proceeds of drug trafficking pursuant to 21 U.S.C. 881(a)(6). The court focused on the relationship of the confiscated property to the underlying criminal activity, emphasizing that the property was the proceeds of illegal activity. The court drew a sharp distinction between the mobile home involved in Austin and the drug profits involved in Tilley, concluding that the forfeiture of the proceeds of drug sales can never be excessive in view of the enormous costs involved in prosecuting narcotics trafficking and the fact that drug proceeds are by definition proportional to the criminal activity.

Tilley’s reasoning, if adopted, would refute any double jeopardy challenge where the object of forfeiture constituted proceeds of illegal activity. A double jeopardy challenge has a greater chance of succeeding when (1) the forfeiture is directed against either unreported funds or against property used in connection with illegal activity and (2) the value of the property is overwhelmingly disproportionate to the damage caused by the underlying crime.

However, although the Fifth Circuit held that the forfeiture of proceeds was entirely remedial and thus not punishment, the court observed that if the prior proceeding had involved punishment, double jeopardy would have applied and would have barred the pending criminal trial. The court clearly implied that it would have found the criminal action barred by double jeopardy if the forfeiture had not involved proceeds. “We should make clear, however, that the sanction in Halper did not involve the proceeds from the crimes charged and the fact that the property forfeited in today’s case constitutes unlawful proceeds is crucial to our analysis.” Two Illinois district courts have followed the Fifth Circuit’s analysis, as have the Fourth Circuit and the Circuit of the District of Columbia.

The $405,089.23 court took exception to Tilley. The Ninth Circuit found that the Austin court explicitly refused to apply Tilley’s “case-by-case” approach. Instead, the Austin court adopted a “categorical approach to ‘punishment’ determinations in the forfeiture context”, requiring a reviewing court to look “to the entire scope of the statute which the government seeks to employ, rather than to the characteristics of the specific property the government seeks to forfeit.” Since the Austin court did not distinguish between drug proceeds and non-drug proceeds, the Ninth Circuit found, any determination of whether forfeiture constitutes punishment must look to the broader punitive purposes of the forfeiture statute as a whole. Having little difficulty classifying the instant proceeding as punitive under the Austin test, the court held that “[b]ecause the government is attempting to exact this form of ‘punishment’ in a proceeding separate from the claimants’ criminal trials, this action is barred by the Double Jeopardy Clause”.

Finally, distressed by the government’s litigation strategy, the court admonished the government for not seeking all of its remedies in one proceeding. By proceeding with the criminal case first, the government could then argue for summary judgment in the forfeiture proceeding; if it lost the criminal case, the government could still seek forfeiture of the property under the more permissive standards of civil forfeiture. “Such a coordinated manipulative prosecution strategy”, observed the court, “heightens rather than diminishes the concern that the government is forcing an individual to ‘run the gauntlet’ more than once.” Now, the court said, the government must choose “whether to include a criminal forfeiture count in the indictment (and thus forego the favorable burdens it would face in the civil forfeiture proceeding) or to pursue only the civil forfeiture action (and thus forego the opportunity to prosecute the claimants criminally).” A far cry from McCaslin. What a difference three years make. At least two district courts have applied $405,089.23 retroactively to cases pending at the time of the decision.

Speaking of McCaslin, the reader should make note of a remarkable decision from the Western District of Washington. In United States v. McCaslin, a distant relative of the Ninth Circuit’s 1991 decision, the district judge vacated the defendant’s conviction and sentence for a conspiracy and the manufacture and distribution of marijuana under 28 U.S.C. 2255, because the defendant previously forfeited his home as part of a consent judgment following the filing of a civil forfeiture under 21 U.S.C. 881(a)(7). Relying heavily upon Kurth Ranch, this vacatur highlights the importance of Kurth Ranch and the difficulty the government will have should the circuit and district courts follow this trend. In fact, in the month of September 1994 alone, no fewer than four courts in the Ninth Circuit addressed the concept of civil forfeiture and double jeopardy, all of which decided in favor of the claimant. Another extraordinary opinion against the government was handed down in October 1994. At least four other courts have followed the lead of $405,089.23. This string of setbacks, coupled with new leadership in Washington on the executive level, should prompt the government to take a good look at its strategy before the courts completely whitewash their civil forfeiture prosecutions.

That being said, however, the conflict among the circuits remains. In United States v. Smith, a criminal defendant offered to concede in a parallel civil forfeiture action against property allegedly involved in the same offense. The court found that this act did not raise a double jeopardy bar to continuing the criminal prosecution. The court acknowledged that Austin supports the proposition that civil drug forfeiture counts as “punishment” for purposes of double jeopardy analysis. It also found that Halper and Kurth Ranch hold that a civil forfeiture would trigger the Double Jeopardy Clause’s prohibition of successive punishments, even if Congress intended to permit imposition of multiple punishments in a single proceeding. However, stating that it was “constrained” by its circuit’s conclusion that parallel criminal and civil proceedings count as a single prosecution, the court denied the defendant’s motion for dismissal of the indictment.

Notably, the government, realizing it was on very shaky ground, attempted to take the “punishment” out of the forfeiture action by removing the “facilitation” theory from its forfeiture complaint and relying solely on a proceeds theory.

Similarly, in United States v. One Parcel of Real Property located at 13143 S.W. 15th Lane, Dade County, Miami, the court held that “despite the result that the Austin holding would seem to dictate in this case, the Supreme Court’s finding that civil forfeiture under 21 U.S.C. 881(a)(7) constitutes punishment does not end the inquiry, for the Eleventh Circuit has also spoken on this precise issue.” Does this mean that a circuit court decision takes precedent over a Supreme Court decision which, admittedly, would require a different result? Apparently in the Eleventh Circuit it does. The district court, clearly pained by so doing, held that despite the logic of the both the Austin court and the Ninth Circuit, “since the Eleventh Circuit’s [pre-Kurth Ranch] decision is binding, this court is constrained to find that the criminal prosecution and the civil forfeiture proceedings involving [defendant’s] same conduct constitute a single, coordinated proceeding for the purposes of double jeopardy analysis.”

But, in Massachusetts, a district court judge held that, although a forfeiture claimant’s offer to concede was patently a ploy to raise a double jeopardy bar to his prosecution in a parallel criminal action, the court did not have the authority under the forfeiture statute to grant a stay on that ground. Accordingly, the subsequent criminal prosecution was barred.

Double Jeopardy Adventures in Texas

With the trend against the government’s “separate prosecution” argument is just now beginning to take shape with the Double Jeopardy issues are making their way through the courts, of note is what has happened with respect to this issue in Texas. In three post-Austin cases, the District Courts in the Lone Star State addressed the nature of the forfeiture statute. In Ward v. State, the court observed that the fact that forfeiture actions are governed by the civil rules of procedure and that the state’s burden of proof is the preponderance of the evidence is not dispositive in this regard. “The labels ‘criminal’ and ‘civil’ are not of paramount importance. It is commonly understood that civil proceedings may advance punitive as well as remedial goals…”. The court, however, found the state statute to be civil in nature, pointing to the fact that forfeited assets are used for law enforcement purposes, and drug abuse and chemical dependency treatment programs, both of which it cited as “clearly remedial”. In apparent dictum, however, the court said that were the statute punitive, the “relatively modest value of [a radar and $2,165 in cash] is [not] ‘overwhelmingly disproportionate to the damage’ appellant has caused”, referring to the 78 pounds of marijuana seized from the defendant. Inexplicably, however, although the court looked to Halper for guidance, it did not even cite the Supreme Court’s decision in Austin.

In Johnson v. State, however, the same court, five months later, rethought its analysis in Ward, acknowledging that while “we believe the purpose of the statute is remedial, we acknowledge it may not be solely remedial”. Accordingly, the court applied the disproportionality analysis of Halper and Austin, and determined that prosecution for the charged offenses did note subject the defendant to double jeopardy. Interestingly, however, the court, in a footnote, distinguished Kurth Ranch, finding that since Kurth Ranch involved a tax statute rather than a forfeiture provision, the Texas court was not bound by the Supreme Court’s analysis therein. Query if this narrow — and, we believe, incorrect — reading of Kurth Ranch will prevail in future litigation.

It took the defense one more try, but finally, on July 21, 1994, the same litigants as in Johnson achieved a result more in tuned with Austin and Kurth Ranch. In Fant v. State, the state Court of Appeals held that double jeopardy barred the defendant’s trial for possession of a controlled substance after the state had obtained a forfeiture judgment arising from the same underlying criminal activity. Calling the statutory labels “civil” and “criminal” a “distinction without a difference”, the court analyzed the Supreme Court opinions and found that the Court’s language, especially in Kurth Ranch, “clearly indicates that . . . forfeitures are punishment.” The Fant court focused on three factors in making its determination: the history of forfeiture, the statutory innocent owner defense and the fact that the it focused on the culpability of the owner, and the fact that the innocent owner defense revealed legislative intent to punish only those involved in drug trafficking. All three, coupled with the fact that Texas’ forfeiture provision is codified in the state Code of Criminal Procedure, led the court to its conclusion. However, the court made sure to note, as the Supreme Court did in Kurth Ranch, that the state could proceed against an individual both criminally and via civil forfeiture proceedings so long as it did so in the same proceeding. Ironically, the court did not even bother to discuss Ward or Johnson, except to cite them as contrary to its holding.

If upheld, the Fant decision would mean that the state Legislature would have to change forfeitures from a civil to a criminal proceeding with higher standards of proof, or law enforcement would have to pick and choose more carefully which drug forfeitures it would prosecute in lieu of a criminal prosecution. This would be a major blow to many counties in the state which have made forfeiture a cash cow in their fight against drug-related criminal activity. It also might set a trend for other states with statutory schemes similar to that in Texas. First, however, the Texas courts must design uniformity among themselves.


As the Ninth Circuit has realized, it is no longer possible to distinguish Austin’s Eighth Amendment analysis from Halper’s double jeopardy review using a strict reading of the two clauses. Both apply to all cases, not just criminal prosecutions. With the Supreme Court structuring its double jeopardy analysis to include “multiple punishment” as well as multiple prosecution, the old arcane reasoning logically falls apart if it rejects a double jeopardy analysis in the forfeiture context simply because forfeiture is civil punishment. In addition, distinguishing between Halper’s fines and Austin’s forfeitures would undermine previous decisions suggesting that actions which are civil in form cannot constitute double jeopardy unless the amount extracted is significant. Indeed, these arguments would seem to contradict much of Austin’s holding to conclude that civil forfeiture is punishment for Eighth Amendment purposes but not for cases brought pursuant to the double jeopardy clause of the Fifth Amendment.

Also, based upon Kurth Ranch and the cases upon which it relies, criminal fines, civil penalties, civil forfeitures and taxes should now all be subject to both Eighth Amendment excessiveness limitations and Fifth Amendment double jeopardy prohibitions. Justice Scalia may well be right that other Fifth and Sixth Amendment protections afforded to criminal defendants may be grafted onto certain “civil” proceedings for forfeitures, penalties and taxes.

It appears, then, that we have come full circle since the Supreme Court’s first major double jeopardy opinion more than 100 years ago in Coffey v. United States. There, the Court held that an in rem forfeiture action against the property instituted following an acquittal on criminal charges relating to the removal and concealing of distilled spirits constituted a penalty after the acquittal and was barred under double jeopardy.

But forfeiture is not an offense; it is a consequence; indeed, a punishment. Even if the courts use the same elements test, the focus in these cases will be on the offense underlying the forfeiture action. So long as both actions stem from and are based upon the same set of facts, jeopardy should attach. But, as a wise man once said, the future is uncertain. It remains to be seen how far this debate will go. We await Supreme Court review and guidance.

Steven L. Kessler is an attorney in New York City and author of Civil and Criminal Forfeiture: Federal and State Practice (Clark Boardman Callaghan 1993 and 1995 Supp.), a three-volume treatise on the forfeiture and RICO statutes in all 50 states and the District of Columbia and the major federal forfeiture provisions, all with interpretive case law and analysis.

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