From: [c--ur--s] at [usenet.ins.cwru.edu]
Newsgroups: freenet.govt.hermes.opinions,courts.usa.federal.supreme
Subject: 95-345.ZX Misc.
Date: 24 Jun 1996 16:04:27 GMT
SUPREME COURT OF THE UNITED STATES
--------
Nos. 95-345 and 95-346
--------
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 Stevens, concurring in the judgment in part
and dissenting in part.
The question the Court poses is whether civil forfei-
tures constitute -punishment- for purposes of the Double
Jeopardy Clause. Because the numerous federal statutes
authorizing forfeitures cover such a wide variety of
situations, it is quite wrong to assume that there is only
one answer to that question. For purposes of analysis
it is useful to identify three different categories of
property that are subject to seizure: proceeds, contra-
band, and property that has played a part in the
commission of a crime. The facts of these two cases
illustrate the point.
In No. 95-346 the Government has forfeited
$405,089.23 in currency. Those funds are the proceeds
of unlawful activity. They are not property that re-
spondents have any right to retain. The forfeiture of
such proceeds, like the confiscation of money stolen from
a bank, does not punish respondents because it exacts
no price in liberty or lawfully derived property from
them. I agree that the forfeiture of such proceeds is not
punitive and therefore I concur in the Court's disposition
of No. 95-346.
None of the property seized in No. 95-345 constituted
proceeds of illegal activity. Indeed, the facts of that
case reveal a dramatically different situation. Respon-
dent Ursery cultivated marijuana in a heavily wooded
area not far from his home in Shiawassee County, Mich-
igan. The illegal substance was consumed by members
of his family, but there is no evidence, and no conten-
tion by the Government, that he sold any of it to third
parties. Acting on the basis of the incorrect assumption
that the marijuana plants were on respondent's property,
Michigan police officers executed a warrant to search
the premises. In his house they found marijuana seeds,
stems, stalks, and a growlight. I presume those items
were seized, and I have no difficulty concluding that
such a seizure does not constitute punishment because
respondent had no right to possess contraband. Accord-
ingly, I agree with the Court's opinion insofar as it
explains why the forfeiture of contraband does not
constitute punishment for double jeopardy purposes.
The critical question presented in No. 95-345 arose,
not out of the seizure of contraband by the Michigan
police, but rather out of the decision by the United
States Attorney to take respondent's home. There is no
evidence that the house had been purchased with the
proceeds of unlawful activity and the house itself was
surely not contraband. Nonetheless, 21 U. S. C.
881(a)(7) authorized the Government to seek forfeiture
of respondent's residence because it had been used to
facilitate the manufacture and distribution of mari-
juana. Respondent was then himself prosecuted for
and convicted of manufacturing marijuana. In my
opinion none of the reasons supporting the forfeiture of
proceeds or contraband provides a sufficient basis for
concluding that the confiscation of respondent's home
was not punitive.
The Government has advanced four arguments in
support of its position that the forfeiture of respondent's
home under 881(a)(7) followed by his prosecution under
841(a)(1) did not violate the Double Jeopardy Clause:
(1) the forfeiture was not punitive; (2) even if punitive,
it was not a -jeopardy-; (3) even if both the forfeiture
and the prosecution were jeopardies, they were not
based on the same offense under the rule of Blockburger
v. United States, 284 U. S. 299 (1932); and (4) in all
events, the two cases should be deemed to constitute a
single proceeding for double jeopardy purposes. Because
the Court addresses only the first of these arguments, I
shall begin by explaining why both reason and precedent
support the conclusion that the taking of respondent's
home was unmistakably punitive in character. I shall
then comment on the other three arguments.
I
In recent years, both Congress and the state legisla-
tures have armed their law enforcement authorities with
new powers to forfeit property that vastly exceed their
traditional tools. In response, this Court has reaf-
firmed the fundamental proposition that all forfeitures
must be accomplished within the constraints set by the
Constitution. See, e.g., Austin v. United States, 509
U. S. 602 (1993); United States v. James Daniel Good
Real Property, 510 U. S. 43 (1993). This Term the
Court has begun dismantling the protections it so
recently erected. In Bennis v. Michigan, 516 U. S. ___
(1996), the Court held that officials may confiscate an
innocent person's automobile. And today, for the first
time it upholds the forfeiture of a person's home. On
the way to its surprising conclusion that the owner is
not punished by the loss of his residence, the Court
repeatedly professes its adherence to tradition and time-
honored practice. As I discuss below, however, the
decision shows a stunning disregard not only for modern
precedents but for our older ones as well.
In the Court's view, the seminal case is Various Items
of Personal Property v. United States, 282 U. S. 577
(1931), which approved the forfeiture of an illegal
distillery by resort to the -legal fiction- that the distill-
ery rather than its owner was being punished -as
though it were conscious instead of inanimate and
insentient.- Id., at 581. Starting from that fanciful
premise, the Court was able to conclude that confiscat-
ing the property after the owner was prosecuted for the
underlying violations of the revenue laws did not offend
the Double Jeopardy Clause.
According to the Court, Various Items established a
categorical rule that the Double Jeopardy Clause was
-inapplicable to civil forfeiture actions.- Ante, at 6. The
Court asserts that this rule has received -remarkably
consistent- application and was -reaffirmed- by a pair of
cases in 1972 and 1984. Ante, at 10, 7. In reality,
however, shortly after its announcement, Various Items
simply disappeared from our jurisprudence. We cited
that case in only two decisions over the next seven
years, and never again in nearly six decades. Neither
of the two cases that supposedly -affirmed- Various
Items-One Lot Emerald Cut Stones v. United States,
409 U. S. 232 (1972) (per curiam), and United States v.
One Assortment of 89 Firearms, 465 U. S. 354 (1984)-
even mentioned it.
More important, neither of those cases endorsed the
asserted categorical rule that civil forfeitures never give
rise to double jeopardy rights. Instead, each carefully
considered the nature of the particular forfeiture at
issue, classifying it as either -punitive- or -remedial,-
before deciding whether it implicated double jeopardy.
Emerald Cut Stones concerned a customs statute that
authorized confiscation of certain merchandise, in that
case jewelry, that had been smuggled into the United
States. The Court explained that the purpose of the
statute was to remove such items from circulation, and
that the penalty amounted to a reasonable liquidated
damages award to reimburse the Government for the
costs of enforcement and investigation. In those re-
spects, therefore, it constituted a -remedial rather than
punitive sanctio[n].- 409 U. S., at 237. In 89 Firearms,
the Court explored in even greater detail the character
of a federal statute that forfeited unregistered firearms.
It reasoned that the sanction -further[ed] broad remedial
aims- in preventing commerce in such weapons, and also
covered a broader range of conduct than simply criminal
behavior. 465 U. S., at 364. For those reasons, it was
not properly characterized as a punitive sanction.
The majority, surprisingly, claims that Austin v.
United States, 509 U. S. 602 (1993), -expressly recog-
nized and approved- those decisions. Ante, at 18. But
the Court creates the appearance that we endorsed its
interpretation of 89 Firearms and Emerald Cut Stones
by quoting selectively from Austin. We actually stated
the following:
-The Double Jeopardy Clause has been held not to
apply in civil forfeiture proceedings, but only in
cases where the forfeiture could properly be charac-
terized as remedial. See United States v. One
Assortment of 89 Firearms, 465 U. S. 354, 364
(1984); One Lot Emerald Cut Stones v. United
States, 409 U. S. 232, 237 (1972); see generally
United States v. Halper, 490 U. S. 435, 446-449
(1989) (Double Jeopardy Clause prohibits second
sanction that may not be fairly characterized as
remedial).- 509 U. S., at 608, n. 4 (emphasis
added).
In reality, both cases rejected the monolithic view that
all in rem civil forfeitures should be treated the same,
and recognized the possibility that other types of
forfeitures that could not -properly be characterized as
remedial- might constitute -an additional penalty for the
commission of a criminal act.- 465 U. S., at 366.
That possibility was not merely speculative. The
Court had already decided that other constitutional
protections applied to forfeitures that had a punitive
element. In Boyd v. United States, 116 U. S. 616
(1886), the Court held that compulsory production of an
individual's private papers for use in a proceeding to
forfeit his property for alleged fraud against the revenue
laws violated both the Fourth Amendment and the Fifth
Amendment's Self-Incrimination Clause. As the Court
stated, -proceedings instituted for the purpose of declar-
ing the forfeiture of a man's property by reason of
offences committed by him, though they may be civil in
form, are in their nature criminal- and thus give rise to
these constitutional safeguards. Id., at 634.
We reaffirmed Boyd twice during the span of time
between our decisions in Various Items and 89 Firearms.
In One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S.
693 (1965), the Court unanimously repeated Boyd's
conclusion that -a forfeiture proceeding is quasi-criminal
in character- and -[i]ts object, like a criminal proceeding,
is to penalize for the commission of an offense against
the law.- The Court therefore held that the Fourth
Amendment applied to a proceeding to forfeit an automo-
bile used to transport illegally manufactured liquor. Id.,
at 700.
Even more significant is United States v. United States
Coin & Currency, 401 U. S. 715 (1971), in which the
Court again held that the Fifth Amendment applied to
forfeiture proceedings. Coin & Currency involved the
confiscation of gambling money under a statute, quite
similar to 21 U. S. C. 881, providing that -[i]t shall be
unlawful to have or possess any property intended for
use in violating the provisions of the internal revenue
laws . . . and no property right shall exist in any such
property.- Id., at 716 (citing 26 U. S. C. 7302). The
Court held that the Fifth Amendment barred the
Government's attempt to introduce evidence of the
defendant's failure to file required tax forms against him
in the forfeiture proceeding. Following Boyd, the Court
explained that the form of the proceeding as civil or
criminal could not have any bearing on the rights that
attached when the sanction was a penalty. -From the
relevant constitutional standpoint, there is no difference
between a man who `forfeits' $8,674 because he has used
the money in illegal gambling activities and a man who
pays a `criminal fine' of $8,674 as a result of the same
course of conduct.- 401 U. S., at 718. In each case, the
Court reasoned, the liability derives from the same
offense of the owner; hence, -the Fifth Amendment
applies with equal force.- Ibid.
Emerald Cut Stones expressly recognized the
continuing validity of Coin & Currency and One 1958
Plymouth Sedan. It distinguished the customs statute
in that case because the forfeiture did not depend on the
fact of a criminal offense or conviction. See 409 U. S.,
at 236, n. 6. See also United States v. Ward, 448 U. S.
242, 254 (1980) (discussing Boyd). That recognition is
critical. For whatever its connection to the Excessive
Fines Clause of the Eighth Amendment, the Double
Jeopardy Clause is part of the same Amendment as the
Self-Incrimination Clause, and ought to be interpreted in
pari materia. By confining its holding to civil forfei-
tures fairly characterized as remedial, and by distin-
guishing cases that had applied the Fifth Amendment to
other types of forfeitures, Emerald Cut Stones and 89
Firearms recognized the possibility that the Double
Jeopardy Clause might apply to certain punitive civil
forfeiture proceedings. One of the mysteries of the
Court's opinion is that although it claims that civil in
rem forfeiture cannot be understood as punishment, it
devotes Part II-C to examining the actual purposes of
the forfeiture in this case and -proving- that they are
not punitive. If the Court truly adhered to the logic of
its position, that entire section would be unnecessary.
Read properly, therefore, 89 Firearms and Emerald
Cut Stones are not inconsistent with, but set the stage
for the modern understanding of how the Double
Jeopardy Clause applies in nominally civil proceedings.
That understanding has been developed in a trio of
recent decisions: United States v. Halper, 490 U. S. 435
(1989), Austin v. United States, 509 U. S. 602 (1993),
and Department of Revenue of Mont. v. Kurth Ranch,
511 U. S. ___ (1994). The court of appeals found that
the combined effect of two of those decisions-Halper
and Austin-established the proposition that forfeitures
under 21 U. S. C. 881(a)(7) implicated double jeopardy.
This Court rejects that conclusion, asserting that none
of these cases changed the -oft-affirmed rule- of Various
Items. Ante, at 10.
It is the majority, however, that has -misread- Halper,
Austin, and Kurth Ranch by artificially cabining each to
a separate sphere, see ante, at 20, and treating the
three as if they concerned unrelated subjects. In fact,
all three were devoted to the common enterprise of
giving meaning to the idea of -punishment,- a concept
that plays a central role in the jurisprudence of both the
Excessive Fines Clause and the Double Jeopardy Clause.
Halper laid down a general rule for applying the Double
Jeopardy Clause to civil proceedings:
-[A] civil sanction that cannot fairly be said solely to
serve a remedial purpose, but rather can only be
explained as also serving either retributive or
deterrent purposes, is punishment, as we have come
to understand the term. . . . We therefore hold that
under 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.- 490 U. S., at 448-449.
In the past seven years, we have applied that same rule
to three types of sanctions: civil penalties, civil forfei-
tures, and taxes.
The first was the subject of Halper itself. The
defendant had been convicted for submitting 65 false
claims for reimbursement (seeking $12 for each, when
the actual services rendered entitled him to only $3) to
a Medicare provider, and sentenced to imprisonment for
2 years and a $5,000 fine. The Government then
brought a civil action against him for the same offenses.
The penalty for violating the civil false-claims statute
consisted of double the Government's damages plus court
costs and a fixed fine of $2,000 per false claim. See id.,
at 438. Accordingly, the Government sought a penalty
of $130,000, although the defendant's fraud had caused
an actual loss of only $585. Applying the definition of
-punishment- given above, the Court first held that the
fixed $2,000 fine served a remedial purpose because it
was designed to compensate the Government -roughly-
for the costs of law enforcement and investigation. Id.,
at 445. Despite finding that the fine was not by nature
punitive, the Court went on to consider whether the
sanction -as applied in the individual case,- id., at 448,
amounted to punishment. It answered that question in
the affirmative, for the applied sanction created a
-tremendous disparity- with the amount of harm the
defendant actually caused. Id., at 452. The Court
explained that, as a rule, a fixed penalty that would
otherwise serve remedial ends could still punish the
defendant if the imposed amount was out of all propor-
tion to the damage done.
The second category of sanctions-civil forfeitures-was
the subject of Austin. In that case, the Government
sought to forfeit the petitioner's mobile home and auto
body shop as instrumentalities of the drug trade under
21 U. S. C. 881(a)(4) and (a)(7) because he had sold
cocaine there. Applying Halper's definition of punish-
ment, see 509 U. S., at 610, 621, we held that
881(a)(4) and (a)(7) must be considered to qualify as
such, partly because forfeitures have historically been
understood as punishment and more importantly because
no remedial purpose underlay the sanction the statute
created. Merely compensating the Government for its
costs, as in Halper, could not justify the forfeiture
scheme because -[t]he value of the conveyances and real
property forfeitable under 881(a)(4) and (a)(7) . . . can
vary so dramatically that any relationship between the
Government's actual costs and the amount of the
sanction is merely coincidental.- 509 U. S., at 622, n.
14. Accordingly, we held that any forfeiture was subject
to the constraints of the Excessive Fines Clause of the
Eighth Amendment.
The Court expends a great deal of effort attempting to
distinguish Austin away as purely an excessive fines
case. The Court states, for example, that it is -difficult
to see- how one would apply the -rule of Halper- to a
civil forfeiture such as was present in Austin. Ante, at
15. But the Court conflates the two different rules that
Halper announced. As discussed above, Austin expressly
quoted Halper and followed its general rule that a
sanction should be characterized as -punishment- if it
serves any punitive end. See 509 U. S., at 610, 621. It
relegated to a footnote Halper's narrower rule-the one
for the -rare case,- which requires an accounting of the
Government's damages and costs-because it had already
decided that the statute was of a punitive character.
509 U. S., at 622, n. 14. That approach was perfectly
appropriate. There is no need to determine whether a
statute that is punitive by design has a punitive effect
when applied in the individual case. Halper is entirely
consistent with Austin, because it determined first that
the sanction there generally did not have a punitive
character before it considered whether some applications
might be punitive nonetheless.
The majority implies that Austin's -categorical ap-
proach- is somehow suspect as an application of double
jeopardy jurisprudence, ante, at 18, but Kurth Ranch
definitively refutes that suggestion. The sanction there
was a tax imposed on marijuana and applied to a
taxpayer who had already been prosecuted for ownership
of the drugs sought to be taxed. Again applying
Halper's definition of punishment, see 511 U. S., at ___
(slip op., at 9-10), we considered the nature of the tax,
focusing on several unusual features that distinguished
it from ordinary revenue-raising provisions, and conclud-
ed that it was motivated by a -penal and prohibitory
intent.- Id., at ___ (slip op., at 14). On that basis, we
held that imposition of the tax after criminal prosecution
of the taxpayer violated double jeopardy. The approach
taken was thus identical to that followed in Austin. By
considering and rejecting each of the asserted -remedial-
interests served by the sanction, we reasoned that the
tax had an -unmistakable punitive character- that
rendered it punishment in all of its applications. 511
U. S., at ___ (slip op., at 16).
The claim that Halper's -case-by-case- method is -im-
possible to apply- to forfeitures or taxes, ante, at 17,
thus misses the point. It is true that since fixed
penalties can serve only one remedial end (compensa-
tion), it is easy to determine whether a particular fine
is punitive in application. Forfeitures and taxes,
generally speaking, may have a number of remedial
rationales. But to decide if a sanction is punitive, one
need only examine each claimed remedial interest and
determine whether the sanction actually promotes it.
Many of our cases have followed just such an approach,
regardless of whether any nonpunitive purpose can be
-quantif[ied],- ante, at 16. See, e.g., Austin; One 1958
Plymouth Sedan. The majority itself embarks on such
an inquiry in Part II-C of its opinion. Furthermore,
even in the context of forfeitures and taxes, nothing
prevents a court from deciding that although a sanction
is designed to be remedial, its application in a particular
case is so extreme as to constitute punishment. Austin,
509 U. S., at 608, n. 4.
In reaching the conclusion that the civil forfeiture at
issue yielded punishment, the Austin Court surveyed the
history of civil forfeitures at some length. That history
is replete with expressions of the idea that forfeitures
constitute punishment. But it was not necessary in
Austin, strictly speaking, to decide that all in rem forfei-
tures are punitive. As Justice Scalia emphasized in
his separate opinion, it was only necessary to character-
ize the specific -in rem forfeiture in this case.- 509
U. S., at 626 (concurring in part and concurring in judg-
ment). The punitive nature of 881(a)(4) and (a)(7) was
accepted by every Member of the Austin Court. The
majority offered several reasons for its holding. The
applicable provisions expressly provided an -innocent
owner- defense, indicating that culpability was a require-
ment for forfeiture. Further, the provisions tied forfei-
ture directly to the commission of narcotics offenses.
Id., at 620. Finally, the legislative history indicated
that the provisions were necessary because traditional
criminal sanctions were -`inadequate to deter or pun-
ish.'- Ibid. (quoting S. Rep. No. 98-225, p. 191 (1983)).
In sum, it was unanimously agreed that -[s]tatutory for-
feitures under 881(a) are certainly payment (in kind),
to a sovereign as punishment for an offense.- 509 U. S.,
at 626-627 (Scalia, J., concurring in part and concur-
ring in judgment) (emphasis in original).
Remarkably, the Court today stands Austin on its
head-a decision rendered only three years ago, with
unanimity on the pertinent points-and concludes that
881(a)(7) is remedial rather than punitive in character.
Every reason Austin gave for treating 881(a)(7) as
punitive-the Court rejects or ignores. Every reason the
Court provides for treating 881(a)(7) as remedial-
Austin rebuffed. The Court claims that its conclusion is
consistent with decisions reviewing statutes -indistin-
guishable- -in most significant respects- from 881(a)(7),
ante, at 20, but ignores the fact that Austin reached the
opposite conclusion as to the identical statute under
review here.
First, the Court supposes that forfeiture of respond-
ent's house is remedial in nature because it was an
instrumentality of a drug crime. It is perfectly conceiv-
able that certain kinds of instruments used in the
commission of crimes could be forfeited for remedial
purposes. Items whose principal use is illegal-for
example, the distillery in Various Items-might be thus
forfeitable. But it is difficult to understand how a house
in which marijuana was found helped to substantially
-facilitate- a narcotics offense, or how forfeiture of that
house will meaningfully thwart the drug trade. In
Austin, we rejected the argument that a mobile home
and body shop were -instruments- of drug trafficking
simply because marijuana was sold out of them. I see
no basis for a distinction here.
Second, the Court claims that the statute serves the
purpose of deterrence, which helps to show that it is
remedial rather than punitive in character. Ante, at 24.
That statement cannot be squared with our precedents.
Halper expressly held, and Austin and Kurth Ranch
reaffirmed, 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- for purposes of the
Double Jeopardy Clause. 490 U. S., at 448. -`Retribu-
tion and deterrence are not legitimate nonpunitive
governmental objectives.'- Ibid. (emphasis added)
(quoting Bell v. Wolfish, 441 U. S. 520, 539, n. 20
(1979)). To say otherwise is to renounce Halper's
central holding. If deterrence is a legitimate remedial
rationale -distinct from- any punitive purpose, ante, at
23, then the $130,000 fine in Halper could not be
condemned as excessive because it plainly served a
powerful deterrent function. It was a premise of the
Court's analysis in that case that deterrence could not
justify a penal sanction. As in Bennis v. Michigan,
where the Court first announced this new view of
deterrence, it simply ignores Halper without explanation
or comment. See 516 U. S., at ___ (slip op., at 12)
(Stevens, J., dissenting).
For good measure, the Court also rejects two consider-
ations that persuaded the majority in Austin to find 21
U. S. C. 881(a)(7) a punitive statute. The Court first
asserts that the statute contains no scienter requirement
and property may be forfeited summarily if no one files
claim to it. Ante, at 24 (citing 19 U. S. C. 1609).
Property that is not claimed, however, is considered
abandoned; it proves nothing that the Government is
able to forfeit property that no one owns. Any time the
Government seeks to forfeit claimed property, it must
prove that the claimant is culpable, for the statute
contains an express -innocent owner- exception. Today
the Court finds the structure of the statute irrelevant,
but Austin said that the exemption for innocent owners
-makes [the statute] look more like punishment.- 509
U. S., at 619. In United States v. United States Coin &
Currency, 401 U. S. 715 (1971), the Court found a
forfeiture statute punitive on the basis of discretionary
authority granted to the Secretary of the Treasury to
remit property to innocent owners that was provided by
a different statute.
Finally, the Court announces that the fact that the
statute is -tied to criminal activity- is insufficient to
render it punitive. Ante, at 24. Austin expressly relied
on Congress' decision to -tie forfeiture directly to the
commission of drug offenses- as evidence that it was
intended to be punitive. 509 U. S., at 620.
The recurrent theme of the Court's opinion is that
there is some mystical difference between in rem and in
personam proceedings, such that only the latter can give
rise to double jeopardy concerns. The Court claims that
-[s]ince at least Various Items,- we have drawn this
distinction for purposes of applying relevant constitution-
al provisions. Ante, at 14-15. That statement, however,
is incorrect. We have repeatedly rejected the idea that
the nature of the court's jurisdiction has any bearing on
the constitutional protections that apply at a proceeding
before it. -From the relevant constitutional standpoint,
there is no difference between a man who `forfeits'
$8,674 because he has used the money in illegal gam-
bling activities and a man who pays a `criminal fine' of
$8,674 as a result of the same course of conduct.- Coin
& Currency, 401 U. S., at 718. See also One 1958
Plymouth Sedan, 380 U. S., at 701, n. 11; Boyd, 116
U. S., at 638. Most recently, in our application of
Halper's definition of punishment, we stated 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.- Austin, 509 U. S., at 615,
n. 9.
The notion that the label attached to the proceeding
is dispositive runs contrary to the trend of our recent
cases. In Halper we stated that -the labels `criminal'
and `civil' are not of paramount importance- in deter-
mining whether a proceeding punishes an individual.
490 U. S., at 447. In Kurth Ranch we held that the
Double Jeopardy Clause applies to punitive proceedings
even if they are labeled a tax. Indeed, in reaching that
conclusion, we followed a 1931 decision that noted that
a tax statute might be considered punitive for double
jeopardy purposes. It is thus far too late in the day
to contend that the label placed on a punitive proceeding
determines whether it is covered by the Double Jeopardy
Clause.
The pedantic distinction between in rem and in
personam actions is ultimately only a cover for the real
basis for the Court's decision: the idea that the property,
not the owner, is being -punished- for offenses of which
it is -guilty.- Although the Court prefers not to rely on
this notorious fiction too blatantly, its repeated citations
to Various Items make clear that the Court believes
respondent's home was -guilty- of the drug offenses with
which he was charged. See ante, at 15. On that ratio-
nale, of course, the case is easy. The owner of the
property is not being punished when the Government
confiscates it, just the property. The same sleight-of-
hand would have worked in Austin, too: The owner of
the property is not being excessively fined, just the prop-
erty itself. Despite the Government's heavy reliance on
that fiction in Austin, we did not allow it to stand in
the way of our holding that the seizure of property may
punish the owner.
Even if the point had not been settled by prior
decisions, common sense would dictate the result in this
case. There is simply no rational basis for characteriz-
ing the seizure of this respondent's home as anything
other than punishment for his crime. The house was
neither proceeds nor contraband and its value had no
relation to the Government's authority to seize it.
Under the controlling statute an essential predicate for
the forfeiture was proof that respondent had used the
property in connection with the commission of a crime.
The forfeiture of this property was unquestionably -a
penalty that had absolutely no correlation to any dam-
ages sustained by society or to the cost of enforcing the
law.- United States v. Ward, 448 U. S., at 254. As we
unanimously recognized in Halper, formalistic distinc-
tions that obscure the obvious practical consequences of
governmental action disserve the -`humane interests'-
protected by the Double Jeopardy Clause. 490 U. S., at
447, quoting United States ex rel. Marcus v. Hess, 317
U. S. 537, 554 (1943) (Frankfurter, J., concurring).
Fidelity to both reason and precedent dictates the con-
clusion that this forfeiture was -punishment- for pur-
poses of the Double Jeopardy Clause.
II
The Government also argues that the word -jeopardy-
refers only to a criminal proceeding, and that our cases
precluding two punishments for the same offense apply
only to situations in which the first punishment was
imposed after conviction of a crime. In this case the
civil forfeiture proceeding antedated the filing of the
criminal charge. Since the civil case was not a -jeop-
ardy,- the argument runs, the criminal case was the
first, rather than the second, jeopardy. This argument
is foreclosed by our decisions in Halper and Kurth
Ranch.
Although the point was not expressly mentioned in
either case, both holdings necessarily rested on the
assumption that the civil proceeding in which the second
punishment was imposed was a -jeopardy- within the
meaning of the Fifth Amendment. Otherwise there
would have been no basis for concluding that the defen-
dants had been -twice put in jeopardy- as the text of the
Clause forbids. The prohibition against two such pro-
ceedings cannot depend on the order in which they are
filed. Cf. Kurth Ranch, 511 U. S., at ___ (slip op., at 7)
(Scalia, J., dissenting) (-if there is a constitutional
prohibition on multiple punishments, the order of
punishment cannot possibly make any difference-).
III
The Government's third argument is that the civil
forfeiture and the criminal proceeding did not involve
the same offense. The Government relies principally on
Blockburger v. United States, 284 U. S. 299 (1932), in
which we held that for double jeopardy purposes two
statutes define different offenses if -each provision
requires proof of a fact which the other does not.- Id.,
at 304. The application of that test would avoid any
double jeopardy objection to a forfeiture followed by a
prosecution-or a prosecution followed by a forfeit-
ure-whenever the seizure could be supported without
proof that the defendant committed a crime and the
conviction did not require proof that the forfeited
property had been used illegally.
Thus, if instead of forfeiting Ursery's home the Gov-
ernment had decided to forfeit his neighbor's property
where the marijuana was grown, the Blockburger rule
would avoid any double jeopardy objection to either the
forfeiture or respondent's prosecution. In that scenario,
the forfeiture could be supported without proof that
Ursery violated the law and Ursery could be convicted
without proof that he harvested the marijuana on prop-
erty owned by someone else.
The rule does, however, bar this conviction because
the elements that the Government was required to
allege and prove to sustain the forfeiture of Ursery's
home under 881(a)(7) included each of the elements of
the offense for which he was later convicted. As in
Illinois v. Vitale, 447 U. S. 410 (1980), and Harris v.
Oklahoma, 433 U. S. 682 (1977) (per curiam), the fact
that the -greater- offense (here, the forfeiture) could
have been proved by means of a different -lesser- offense
does not negate the fact that in this instance it was
proved by resort to the same elements as the criminal
offense. This conclusion also accords with our oft-repeat-
ed understanding of the relationship between a civil
forfeiture and the underlying offense. See, e.g., One
1958 Plymouth Sedan, 380 U. S., at 701 (-the forfeiture
is clearly a penalty for the criminal offense-); Boyd, 116
U. S., at 634 (describing sanction as -proceedings
instituted for the purpose of declaring the forfeiture of
a man's property by reason of offences committed by
him-). Accordingly, under the analysis we unanimously
applied most recently in Rutledge v. United States, 517
U. S. ___ (1996), the criminal charge was a lesser-
included offense of the forfeiture and therefore constitut-
ed a second jeopardy.
Justice Kennedy joins the Court's opinion and there-
fore ought to agree with the majority that civil forfei-
tures do not constitute punishment for purposes of the
Double Jeopardy Clause. In fact, however, he recog-
nizes that -[f]orfeiture . . . punishes an owner by taking
property involved in a crime.- Ante, at 3. His real
objection is that a forfeiture does not punish for the
same offense as the underlying criminal conviction.
Justice Kennedy theorizes that civil forfeiture pun-
ishes for the misuse of property. Ibid. It might be true
that some forfeiture statutes are best described as creat-
ing a sanction for misuse, as opposed to (but perhaps in
addition to) a sanction for the substantive criminal
offense. But, again, this statute is not structured that
way. Section 881(a)(7) incorporates the criminal offense
itself as the predicate for the forfeiture. See 21
U. S. C. 881(a)(7) (subjecting to forfeiture -[a]ll real
property . . . which is used . . . to commit . . . a viola-
tion of this subchapter punishable by more than one
year's imprisonment-). Furthermore, the innocent owner
exemption in the same subsection provides that -no
property shall be forfeited under this paragraph . . . by
reason of any act or omission established by that owner
to have been committed or omitted without the knowl-
edge or consent of that owner.- Ibid. (emphasis added).
In Austin, we held that the exemption revealed a -con-
gressional intent to punish only those involved in drug
trafficking- because -`the traditional criminal sanctions
. . . are inadequate to deter or punish the enormously
profitable trade in dangerous drugs.'- 509 U. S., at
619, 620 (quoting S. Rep. No. 98-225, p. 191 (1983)).
See also 509 U. S., at 628 (Scalia, J., concurring in
part and concurring in judgment) (suggesting that pro-
portionality of a forfeiture be measured by the relation-
ship of the property to the underlying offense). Again,
these statements accord with common sense: forfeiting
respondent's house punished him for the same narcotics
violations as his criminal conviction.
IV
The final argument advanced by the Government is
that the forfeiture and the criminal conviction should be
treated as having occurred in the same proceeding
because both were commenced before a final judgment
was entered in either. Emphasizing the fact that the
Double Jeopardy Clause, and particularly the prohibition
against multiple punishments for the same offense,
protects the defendant's legitimate expectation of finality
in the original sentence, the Government maintains that
such an expectation could not arise until after one
proceeding was completed. Moreover, it argues, the civil
and criminal sanctions -cannot be (and never have been)
joined together in a single trial under our system of
justice.- Brief for United States 55.
This argument is unpersuasive because it is simply
inaccurate to describe two separate proceedings as
one. I also cannot agree with the Government's view
that there is any procedural obstacle to including a
punitive forfeiture in the final judgment entered in a
criminal case. The sentencing proceeding does not
commence until after the defendant has been found
guilty, and I do not see why that proceeding should not
encompass all of the punitive sanctions that are war-
ranted by the conviction. Indeed, a draft of a proposed
amendment to the Federal Rules of Criminal Procedure
envisions precisely that procedure. See Fed. Rule Crim.
Proc. 32(d)(2) (eff. Dec. 1, 1996). If, as we have al-
ready determined, the -civil- forfeitures pursuant to
881(a)(7) are in fact punitive, a single judgment encom-
passing the entire punishment for the defendant's of-
fense is precisely what the Double Jeopardy Clause
requires. Congress' decision to create novel and addi-
tional penalties should not be permitted to eviscerate
the protection against governmental overreaching em-
bodied in the Double Jeopardy Clause. That protection
has far deeper roots than the relatively recent enact-
ments that have so dramatically expanded the sov-
ereign's power to forfeit private property.
* * *
One final example may illustrate the depth of my con-
cern that the Court's treatment of our cases has cut
deeply into a guarantee deemed fundamental by the
Founders. The Court relies heavily on a few early
decisions that involved the forfeiture of vessels whose
entire mission was unlawful and on the Prohibition-era
precedent sustaining the forfeiture of a distillery-a
property that served no purpose other than the manu-
facture of illegal spirits. Notably none of those early
cases involved the forfeiture of a home as a form of
punishment for misconduct that occurred therein. Con-
sider how drastic the remedy would have been if Con-
gress in 1931 had authorized the forfeiture of every
home in which alcoholic beverages were consumed.
Under the Court's reasoning, I fear that the label -civil,-
or perhaps -in rem,- would have been sufficient to avoid
characterizing such forfeitures as -punitive- for purposes
of the Double Jeopardy Clause. Our recent decisions in
Halper, Austin, and Kurth Ranch, dictate a far different
conclusion. I remain persuaded that those cases were
correctly decided and should be followed today.
Accordingly, I respectfully dissent from the judgment
in No. 95-345.