From: [c--ur--s] at [usenet.ins.cwru.edu]
Newsgroups: freenet.govt.hermes.opinions,courts.usa.federal.supreme
Subject: 95-345.ZC Concurring
Date: 24 Jun 1996 16:00:28 GMT

SUPREME COURT OF THE UNITED STATES
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Nos. 95-345 and 95-346
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UNITED STATES, PETITIONER
95-345               v.
GUY JEROME URSERY
on writ of certiorari to the united states court
of appeals for the sixth circuit

UNITED STATES, PETITIONER
95-346               v.
$405,089.23 IN UNITED STATES CURRENCY et al.
on writ of certiorari to the united states court
of appeals for the ninth circuit
[June 24, 1996]

  Justice Kennedy, concurring.
  I join the Court's opinion and add these further
observations.
  In Austin v. United States, 509 U. S. 602, 619-622
(1993), we described the civil in rem forfeiture provision
of 21 U. S. C. 881(a)(7) at issue here as punitive.  In
Libretti v. United States, 516 U. S. ___ (1995), we
reviewed 21 U. S. C. 853, which in almost identical
terms provides for criminal forfeiture of property
involved in or derived from drug crimes.  We held that
the -fundamental nature of criminal forfeiture- is
punishment.  516 U. S., at ___ (slip op. at 11).  Today
the Court holds that the civil in rem forfeitures here are
not punishment implicating the protections of the Double
Jeopardy Clause.  Ante, at 24-25.  I write to explain
why, in my view, our holding is consistent with both
Austin and Libretti.
  The Fifth Amendment provides that no person shall
-be subject for the same offence to be twice put in
jeopardy of life or limb.-  U. S. Const., Amdt. 5.  We
have interpreted the Double Jeopardy Clause to -pro-
tec[t] against a second prosecution for the same offense
after acquittal, against a second prosecution for the
same offense after conviction, and against multiple
punishments for the same offense.-  Justices of Boston
Municipal Court v. Lydon, 466 U. S. 294, 306-307
(1984); Jones v. Thomas, 491 U. S. 376, 380-381 (1989).
  Although there is language in our cases to the con-
trary, see One 1958 Plymouth Sedan v. Pennsylvania,
380 U. S. 693, 700 (1965); Boyd v. United States, 116
U. S. 616, 634 (1886), civil in rem forfeiture is not
punishment of the wrongdoer for his criminal offense. 
We made this clear in Various Items of Personal Prop-
erty v. United States, 282 U. S. 577 (1931), which the
Court is right to deem the seminal case in this area,
ante, at 5.
-[This] forfeiture proceeding . . . is in rem.  It is the
property which is proceeded against, and, by resort
to a legal fiction, held guilty and condemned as
though it were conscious instead of inanimate and
insentient.  In a criminal prosecution it is the
wrongdoer in person who is proceeded against, con-
victed and punished.  The forfeiture is no part of
the punishment for the criminal offense.  The
provision of the Fifth Amendment to the Constitu-
tion in respect of double jeopardy does not apply.- 
282 U. S., at 581 (citations omitted).
  Embracing the rule of Various Items, that the Double
Jeopardy Clause applies only to in personam punish-
ments of the wrongdoer and not in rem forfeitures, does
not imply that forfeiture inflicts no punishment.  Though
I have expressed my doubts about the view expressed in
Austin, 509 U. S., at 611-618, that throughout history
forfeitures have been intended to punish blameworthy
owners, id., at 629 (opinion concurring in part and con-
curring in judgment); Bennis v. Michigan, 516 U. S. ___,
___ (1996) (dissenting opinion) (slip op. at 1-2), I did not
there question the punitive nature of 881(a)(7), nor do
I now.  Under this statute, providing for the forfeiture
of real property used to facilitate a drug offense, only
the culpable stand to lose their property; no interest of
any owner is forfeited if he can show he did not know
of or consent to the crime.  Ibid.
  The key distinction is that the instrumentality-forfei-
ture statutes are not directed at those who carry out the
crimes, but at owners who are culpable for the criminal
misuse of the property.  See Austin, supra, at 619
(statutory -exemptions serve to focus the provisions on
the culpability of the owner-).  The theory is that the
property, whether or not illegal or dangerous in nature,
is hazardous in the hands of this owner because either
he uses it to commit crimes, or allows others do so.  The
owner can be held accountable for the misuse of the
property.  Cf. One 1958 Plymouth Sedan, supra, at 699
(-There is nothing even remotely criminal in possessing
an automobile.  It is only the alleged use to which this
particular automobile was put that subjects [the owner]
to its possible loss.-)  The same rationale is at work in
the statutory provisions enabling forfeiture of currency
-used or intended to be used- to facilitate a criminal
offense, 881(a)(6).  See also 18 U. S. C. 981(a)(1)(A)
(property involved in money-laundering transactions or
attempts in violation of 18 U. S. C. 1956).  Since the
punishment befalls any propertyholder who cannot claim
statutory innocence, whether or not he committed any
criminal acts, it is not a punishment for a person's
criminal wrongdoing.
  Forfeiture, then, punishes an owner by taking property
involved in a crime, and it may happen that the owner
is also the wrongdoer charged with a criminal offense. 
But the forfeiture is not a second in personam punish-
ment for the offense, which is all the Double Jeopardy
Clause prohibits.  See ante, at 8 (-The forfeitures
were not criminal punishments because they did not
impose a second in personam penalty for the criminal
defendant's wrongdoing.-); One Lot Emerald Cut Stones
v. United States, 409 U. S. 232, 235 (1972) (per curiam)
(-the forfeiture is not barred by the Double Jeop-
ardy Clause of the Fifth Amendment because it in-
volves neither two criminal trials nor two criminal
punishments-).
  Civil in rem forfeiture has long been understood as
independent of criminal punishments.  In The Palmyra,
12 Wheat. 1 (1827), we rejected a claim that a libel in
rem required a conviction for the criminal offense
charged in the libel.  Distinguishing forfeitures of a
felon's goods and chattels, which required proof of a con-
viction, we noted that the statutory in rem -offence is
attached primarily to the thing,- and that often in rem
forfeiture was imposed in the absence of any in per-
sonam penalty.  Id., at 14.  Examining American and
English statutes, we concluded, -the practice has been,
and so this Court understand[s] the law to be, that the
proceeding in rem stands independent of, and wholly
unaffected by any criminal proceeding in personam.- 
Id., at 15.
  Distinguishing between in rem and in personam
punishments does not depend upon, or revive, the fiction
alive in Various Items, supra, at 581, but condemned in
Austin, supra, at 615, n. 9, that the property is pun-
ished as if it were a sentient being capable of moral
choice.  It is the owner who feels the pain and receives
the stigma of the forfeiture, not the property.  See
United States v. United States Coin & Currency, 401
U. S. 715, 718 (1971).  The distinction simply recognizes
that Congress, in order to quiet title to forfeitable
property in one proceeding, has structured the forfeiture
action as a proceeding against the property, not against
a particular defendant.  Indeed, the Government will
often file a forfeiture complaint without any knowledge
of who the owner is.  See ante, at 24.  True, the for-
feiture statutes require proof of a violation of a drug
trafficking or other offense, but the purpose of this
predicate showing is just to establish that the property
was used in a crime.  In contrast to criminal forfeiture,
see 21 U. S. C. 853(a), civil in rem forfeiture actions do
not require a showing that the owner who stands to lose
his property interest has committed a criminal offense. 
See 21 U. S. C. 881(a)(6) (-any violation of this sub-
chapter-); 881(a)(7) (-a violation of this subchapter-); 18
U. S. C. 981(a)(1)(A) (-a transaction or attempted
transaction in violation of- 18 U. S. C. 1956).  The
offenses committed by Ursery, Arlt, and Wren were
proffered as evidence that the property was used in a
crime, but this does not make forfeiture a punishment
for those offenses.  See United States v. One Assortment
of 89 Firearms, 465 U. S. 354, 366 (1984) (civil forfeiture
is -not an additional penalty for the commission of a
criminal act-).
  For this reason, Justice Stevens' attempt, post, at
22-23, to rely on the same-elements test of Blockburger
v. United States, 284 U. S. 299, 304 (1932), is unavail-
ing.  Blockburger is a misfit in this context; it compares
the elements of two offenses charged against a defend-
ant.  The forfeiture cause of action is not charging a
second offense of the person; it is a proceeding against
the property in which proof of a criminal violation by
any person will suffice, provided that some knowledge of
or consent to the crime on the part of the property
owner is also established.
  In Part II-C of its opinion, the Court conducts the
two-part inquiry established in 89 Firearms, supra, at
362-366, as to whether, first, Congress intended the
proceedings to be civil, and, second, the forfeitures are
so punitive as to be criminal in nature and therefore
subject to the Double Jeopardy Clause.  Ante, at 20. 
The test was imported by the 89 Firearms Court from
cases involving civil in personam penalties.  See 465
U. S., at 362 (citing Helvering v. Mitchell, 303 U. S. 391,
398-399 (1938), and United States v. Ward, 448 U. S.
242, 248 (1980)).  In the context of this case and the
precedents bearing upon it, I am not sure the test adds
much to the clear rule of Various Items that civil in rem
forfeiture of property involved in a crime is not punish-
ment subject to the Double Jeopardy Clause.  As to the
first prong of the test, any in rem proceeding is civil. 
As to the second prong, so long as forfeiture hinges on
the property's use in a crime, there will always be the
remedial purpose the Court identifies of preventing prop-
erty owners from allowing their goods to be used for il-
legal purposes, ante, at 22.  I acknowledge 89 Firearms
to be precedent, however, and, because the Court's
application of the test is consistent with Various Items,
I join its opinion in full.