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U.S. Supreme Court Upholds Civil Forfeiture in Two Drug Cases



Two U.S. Courts of Appeals had ruled that dual proceedings of criminal prosecution and forfeiture, a cornerstone of the government's approach to narcotics crimes, is a violation of the Fifth Amendment prohibition against multiple punishments for the same crime. But on June 24 the Supreme Court ruled that the combination of prosecution and civil forfeiture does not violate the constitutional bar against double jeopardy, giving Federal prosecutors a major victory in the battle over law enforcement power (U.S. v. Ursery, No. 95-345, --U.S.--, 116 S.Ct. 2135, 1996WL340815, 59CrL2191, (June 24, 1996); Linda Greenhouse, "Justices uphold civil forfeiture as anti-drug tool," New York Times, June 25, 1996, p. A1; The Bureau of National Affairs, "Opinions of the U.S. Supreme Court,"59 The Criminal Law Reporter p.2187, June 26, 1996).

The main question is whether civil forfeiture qualifies as a "punishment." The high court ruled that the forfeiture proceedings were civil, therefore remedial in nature and were not so punitive as to qualify as punishment under the Double Jeopardy Clause. In his majority opinion, Chief Justice William H. Rehnquist said that the Federal forfeiture statutes in drug cases, "while perhaps having certain punitive aspects, serves important nonpunitive goals," specifically ensuring "that property ... [will] not used for illegal activities" and "that person[s] do not profit from their illegal acts."

In U.S. v. $405,089.23 in U.S. Currency, the government obtained forfeiture of the cash and property of the defendants, Charles Arlt and James Wren, who had been convicted of running a major methamphetamine ring in California. Federal prosecutors used the law known as Title 21 U.S.C. Section 881, which provides for the forfeiture of all "things of value" used or intended for use in a drug transaction, as well as, "all proceeds traceable to such an exchange." The Justices ruled unanimously that the forfeitures did not amount to double jeopardy. Justice John Paul Stevens said in a separate opinion that the defendants did not have "any right to retain" proceeds of illegal activities.

The Justices in an 8-1 decision overturned the Sixth Circuit decision of double jeopardy in U.S. v. Ursery which involved a Michigan man, Guy Jerome Ursery, who forfeited the value of his house because he had processed marijuana there. The government used another provision of Section 881, which provides for the forfeiture of "all real property" that is "used or intended to be used, in any manner or part, to commit, or to facilitate the commission of," a Federal drug offense. Judge Stevens cast the dissenting vote saying that the forfeiture was punitive because "there is no evidence that the house had been purchased with the proceeds of unlawful activity, and that the house itself was surely not contraband."

Forfeiture reform advocates had relied on Austin v. United States (1993), in which the Court concluded that the forfeitures were punishment under the Eighth Amendment subject to the prohibition against excessive punishment. But Chief Justice Rehnquist explained that such forfeitures are not so punitive as to constitute punishment under the Fifth Amendment. Rehnquist stated that the excessive fines prohibition of the Eighth Amendment is not "parallel to, or even related to, the Double Jeopardy Clause of the Fifth Amendment." He added, "we decline to import the analysis of Austin into our double jeopardy jurisprudence."

In a concurring judgement, Justices Thomas and Scalia wrote that double jeopardy "prohibits successive prosecution, not successive punishment." But the Fifth Amendment text that reads that no person " shall be subject for the same offence to be twice put in jeopardy of life or limb" has been interpreted as applying to multiple prosecutions as well as multiple punishments in previous Supreme Court decisions.

In the case against Mr. Arlt and Mr. Wren, the defendants were convicted before the forfeiture decision and the U.S. Court Of Appeals for the Ninth Circuit overturned the forfeiture as a violation of the Fifth Amendment. In Mr. Ursery's case, the U.S. Court of Appeals for the Sixth Circuit overturned the criminal conviction as a second punishment for the same crime because the forfeiture had preceded the conviction. The two decisions had jeopardized hundreds of convictions and forfeitures, depending on which proceeding came second in any case.

Civil forfeiture is an attractive tool for the government because it does not require a high burden of proof and, in fact, does not require a criminal conviction.