|
The Supreme Court's June 24, 1996, ruling that the government can prosecute drug dealers on criminal charges while also seizing their property. In the 8-1 ruling, the court found that such treatment of those accused of drug crimes does not constitute double jeopardy.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES
v.
URSERY
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 95-345. Argued April 17, 1996-Decided June 24, 1996*
In No. 95-345, the Government instituted civil forfeiture proceedings
under 21 U. S. C. Section 881(a)(7) against respondent Ursery's
house, alleging that it had been used to facilitate illegal drug
transactions. Shortly before Ursery settled that claim, he was
indicted, and was later convicted, of manufacturing marijuana in
violation of Section 841(a)(1). In No. 95-346, the Government filed
a civil in rem complaint against various property seized from, or titled
to, respondents Arlt and Wren or Arlt's corporation, alleging that
each item was subject to forfeiture under 18 U. S. C. Section
981(a)(1)(A) because it was involved in money laundering violative
of Section 1956, and to forfeiture under 21 U. S. C. Section
881(a)(6) as the proceeds of a felonious drug transaction. Litigation
of the forfeiture action was deferred while Arlt and Wren were
prosecuted on drug and money-laundering charges under Section 846
and 18 U. S. C. Sections 371 and 1956. After their convictions, the
District Court granted the Government's motion for summary
judgment in the forfeiture proceeding. The Courts of Appeals
reversed Ursery's conviction and the forfeiture judgment against Arlt
and Wren, holding that the Double Jeopardy Clause prohibits the
Government from both punishing a defendant for a criminal offense
and forfeiting his property for that same offense in a separate civil
proceeding. The courts reasoned in part that Halper v. United States,
490 U. S. 435, and Austin v. United States, 509 U. S. 602, meant
that, as a categorical matter, civil forfeitures always constitute
"punishment" for double jeopardy purposes. This Court
consolidated the cases.
Held: In rem civil forfeitures are neither "punishment" nor criminal
for purposes of the Double Jeopardy Clause. Pp. 3-23.
(a) Congress long has authorized the Government to bring parallel
criminal actions and in rem civil forfeiture proceedings based upon
the same underlying events, see, e.g., The Palmyra, 12 Wheat. 1,
14-15, and this Court consistently has concluded that the Double
Jeopardy Clause does not apply to such forfeitures because they do
not impose punishment, see, e.g., Various Items of Personal
Property v. United States, 282 U. S. 577, 581; One Lot Emerald Cut
Stones v. United States, 409 U. S. 232, 235-236 (per curiam). In
its most recent case, United States v. One Assortment of 89
Firearms, 465 U. S. 354, the Court held that a forfeiture was not
barred by a prior criminal proceeding after applying a two-part test
asking, first, whether Congress intended the particular forfeiture to
be a remedial civil sanction or a criminal penalty, and, second,
whether the forfeiture proceedings are so punitive in fact as to
establish that they may not legitimately be viewed as civil in nature,
despite any congressional intent to establish a civil remedial
mechanism. Pp. 5-9.
(b) Though the 89 Firearms test was more refined, perhaps, than the
Court's Various Items analysis, the conclusion was the same in each
case: in rem civil forfeiture is a remedial civil sanction, distinct from
potentially punitive in personam civil penalties such as fines, and
does not constitute a punishment for double jeopardy purposes. See
Gore v. United States, 357 U. S. 386, 392. The Courts of Appeals
misread Halper, Austin, and Montana Dept. of Revenue v. Kurth
Ranch, 511 U. S. ___, as having abandoned this oft-affirmed rule.
None of those decisions purported to overrule Various Items,
Emerald Cut Stones, and 89 Firearms or to replace the Court's
traditional understanding. It would have been remarkable for the
Court both to have held unconstitutional a well-established practice,
and to have overruled a long line of precedent, without having even
suggested that it was doing so. Moreover, the cases in question did
not deal with the subject of this case: in rem civil forfeitures for
double jeopardy purposes. Halper involved in personam civil
penalties under the Double Jeopardy Clause. Kurth Ranch
considered a punitive state tax imposed on marijuana under that
Clause. And Austin dealt with civil forfeitures under the Eighth
Amendment's Excessive Fines Clause. Pp. 10-19.
(c) The forfeitures at issue are civil proceedings under the two-part
89 Firearms test. First, there is little doubt that Congress intended
proceedings under Sections 881 and 981 to be civil, since those
statutes' procedural enforcement mechanisms are themselves
distinctly civil in nature. See, e.g., 89 Firearms, 465 U. S., at 363.
Second, there is little evidence, much less the "clearest proof" that the
Court requires, see e.g., id., at 365, suggesting that forfeiture
proceedings under those sections are so punitive in form and effect as
to render them criminal despite Congress' intent to the contrary.
These statutes are, in most significant respects, indistinguishable
from those reviewed, and held not to be punitive, in Various Items,
Emerald Cut Stones, and 89 Firearms. That these are civil
proceedings is also supported by other factors that the Court has
found persuasive, including the considerations that (1) in rem civil
forfeiture has not historically been regarded as punishment; (2) there
is no requirement in the statutes at issue that the Government
demonstrate scienter in order to establish that the property is subject
to forfeiture; (3) though both statutes may serve a deterrent purpose,
this purpose may serve civil as well as criminal goals; and (4) the fact
that both are tied to criminal activity is insufficient in itself to render
them punitive. See, e.g., United States v. Ward, 448 U. S. 242,
247-248, n. 7, 249. Pp. 19-23.
No. 95-345, 59 F. 3d 568, and No. 95-346, 33 F. 3d 1210 and 56
F. 3d 41, reversed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER,
JJ., joined. KENNEDY, J., filed a concurring opinion. SCALIA,
J., filed an opinion concurring in the judgment, in which THOMAS,
J., joined. STEVENS, J., filed an opinion concurring in the
judgment in part and dissenting in part.
*Together with No. 95-346, United States v. $405,089.23 in United
States Currency et al., on certiorari to the United States Court of
Appeals for the Ninth Circuit.
NOTICE: This opinion is subject to formal revision before
publication in the preliminary print of the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Wash-ington, D.C. 20543, of any
typographical or other formal errors, in order that corrections may be
made before the preliminary print goes to press.
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]
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
In separate cases, the United States Court of Appeals for the Sixth
Circuit and the United States Court of Appeals for the Ninth Circuit
held that the Double Jeopardy Clause prohibits the Government from
both punishing a defendant for a criminal offense and forfeiting his
property for that same offense in a separate civil proceeding. We
consolidated those cases for our review, and now reverse. These
civil forfeitures (and civil forfeitures generally), we hold, do not
constitute "punishment" for purposes of the Double Jeopardy Clause.
No. 95-345: Michigan Police found marijuana growing adjacent to
respondent Guy Ursery's house, and discovered marijuana seeds,
stems, stalks, and a growlight within the house. The United States
instituted civil forfeiture proceedings against the house, alleging that
the property was subject to forfeiture under 84 Stat. 1276, as
amended, 21 U. S. C. Section 881(a)(7) because it had been used for
several years to facilitate the unlawful processing and distribution of
a controlled substance. Ursery ultimately paid the United States
$13,250 to settle the forfeiture claim in full. Shortly before the
settlement was consummated, Ursery was indicted for manufacturing
marijuana, in violation of Section 841(a)(1). A jury found him
guilty, and he was sentenced to 63 months in prison.
The Court of Appeals for the Sixth Circuit by a divided vote reversed
Ursery's criminal conviction, holding that the conviction violated the
Double Jeopardy Clause of the Fifth Amendment of the United States
Constitution. 59 F. 3d 568 (1995). The court based its conclusion
in part upon its belief that our decisions in United States v. Halper,
490 U. S. 435 (1989), and Austin v. United States, 509 U. S. 602
(1993), meant that any civil forfeiture under Section 881(a)(7)
constitutes punishment for purposes of the Double Jeopardy Clause.
Ursery, in the court's view, had therefore been "punished" in the
forfeiture proceeding against his property, and could not be
subsequently criminally tried for violation of 21 U. S. C. Section
841(a)(1).
No. 95-346: Following a jury trial, Charles Wesley Arlt and James
Wren were convicted of: conspiracy to aid and abet the manufacture
of methamphetamine, in violation of 21 U. S. C. Section 846;
conspiracy to launder monetary instruments, in violation of 18 U. S.
C. Section 371; and numerous counts of money laundering, in
violation of Section 1956. The District Court sentenced Arlt to life in
prison and a 10-year term of supervised release, and imposed a fine
of $250,000. Wren was sentenced to life imprisonment and a 5-year
term of supervised release.
Before the criminal trial had started, the United States had filed a civil
in rem complaint against various property seized from, or titled to,
Arlt and Wren, or Payback Mines, a corporation controlled by Arlt.
The complaint alleged that each piece of property was subject to
forfeiture both under 18 U. S. C. Section 981(a)(1)(A), which
provides that "[a]ny property . . . involved in a transaction or
attempted transaction in violation of" Section 1956 (the money-
laundering statute) "is subject to forfeiture to the United States"; and
under 21 U. S. C. Section 881(a)(6), which provides for the
forfeiture of (i) "[a]ll . . . things of value furnished or intended to be
furnished by any person in exchange for" illegal drugs, (ii) "all
proceeds traceable to such an exchange," and (iii) "all moneys,
negotiable instruments, and securities used or intended to be used to
facilitate" a federal drug felony. The parties agreed to defer litigation
of the forfeiture action during the criminal prosecution. More than a
year after the conclusion of the criminal trial, the District Court
granted the Government's motion for summary judgment in the civil
forfeiture proceeding.
Arlt and Wren appealed the decision in the forfeiture action, and the
Court of Appeals for the Ninth Circuit reversed, holding that the
forfeiture violated the Double Jeopardy Clause. 33 F. 3d 1210
(1994). The court's decision was based in part upon the same view
as that expressed by the Court of Appeals for the Sixth Circuit in
Ursery's case--that our decisions in Halper, supra, and Austin,
supra, meant that, as a categorical matter, forfeitures under Section
981(a)(1)(A) and Section 881(a)(6) always constitute "punishment."
We granted the Government's petition for certiorari in each of the
two cases, and we now reverse. 516 U. S. ___ (1996).
The Double Jeopardy Clause provides: "[N]or shall any person be
subject for the same offence to be twice put in jeopardy of life or
limb." U. S. Const., Amdt. 5. The Clause serves the function of
preventing both "successive punishments and . . . successive
prosecutions." United States v. Dixon, 509 U. S. 688, 696 (1993),
citing North Carolina v. Pearce, 395 U. S. 711 (1969). The
protection against multiple punishments prohibits the Government
from " `punishing twice, or attempting a second time to punish
criminally for the same offense.' " Witte v. United States, 515 U. S.
___, ___ (1995) (slip op., at 6) (emphasis omitted), quoting
Helvering v. Mitchell, 303 U. S. 391, 399 (1938).
In the decisions that we review, the Courts of Appeals held that the
civil forfeitures constituted "punishment," making them subject to the
prohibitions of the Double Jeopardy Clause. The Government
challenges that characterization of the forfeitures, arguing that the
courts were wrong to conclude that civil forfeitures are punitive for
double jeopardy purposes.1
Since the earliest years of this Nation, Congress has authorized the
Government to seek parallel in rem civil forfeiture actions and
criminal prosecutions based upon the same underlying events. See,
e.g., Act of July 31, 1789, ch. 5, Section 12, 1 Stat. 39 (goods
unloaded at night or without a permit subject to forfeiture and
persons unloading subject to criminal prosecution); Section 25, id.,
at 43 (persons convicted of buying or concealing illegally imported
goods subject to both monetary fine and in rem forfeiture of the
goods); Section 34, id., at 46 (imposing criminal penalty and in rem
forfeiture where person convicted of relanding goods entitled to
drawback); see also The Palmyra, 12 Wheat. 1, 14-15 (1827)
("Many cases exist, where there is both a forfeiture in rem and a
personal penalty"); cf. Calero-Toledo v. Pearson Yacht Leasing Co.,
416 U. S. 663, 683 (1974) (discussing adoption of forfeiture statutes
by early Congresses). And, in a long line of cases, this Court has
considered the application of the Double Jeopardy Clause to civil
forfeitures, consistently concluding that the Clause does not apply to
such actions because they do not impose punishment.
One of the first cases to consider the relationship between the Double
Jeopardy Clause and civil forfeiture was Various Items of Personal
Property v. United States, 282 U. S. 577 (1931). In Various Items,
the Waterloo Distilling Corporation had been ordered to forfeit a
distillery, warehouse, and denaturing plant, on the ground that the
corporation had conducted its distilling business in violation of
federal law. The Government conceded that the corporation had been
convicted of criminal violations prior to the initiation of the forfeiture
proceeding, and admitted that the criminal conviction had been based
upon "the transactions set forth . . . as a basis for the forfeiture."
Id., at 579. Considering the corporation's argument that the
forfeiture action violated the Double Jeopardy Clause, this Court
unanimously held that the Clause was inapplicable to civil forfeiture
actions:
"[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, convicted, and punished. The forfeiture is
no part of the punishment for the criminal offense. The provision of
the Fifth Amendment to the Constitution in respect of double
jeopardy does not apply." Id., at 581 (citations omitted; emphasis
added).
In reaching its conclusion, the Court drew a sharp distinction
between in rem civil forfeitures and in personam civil penalties such
as fines: Though the latter could, in some circumstances, be punitive,
the former could not. Ibid. Referring to a case that was decided the
same day as Various Items, the Court made its point absolutely clear:
"In United States v. La Franca, [282 U. S.] 568, we hold that, under
Section 5 of the Willis-Campbell Act, a civil action to recover taxes,
which in fact are penalties, is punitive in character and barred by a
prior conviction of the defendant for a criminal offense involving the
same transactions. This, however, is not that case, but a proceeding
in rem to forfeit property used in committing an offense." Id., at
580.
Had the Court in Various Items found that a civil forfeiture could
constitute a "punishment" under the Fifth Amendment, its holding
would have been quite remarkable. As that Court recognized, "[a]t
common law, in many cases, the right of forfeiture did not attach
until the offending person had been convicted and the record of
conviction produced." Ibid. In other words, at common law, not
only was it the case that a criminal conviction did not bar a civil
forfeiture, but, in fact, the civil forfeiture could not be instituted
unless a criminal conviction had already been obtained. Though this
Court had held that common-law rule inapplicable where the right of
forfeiture was "created by statute, in rem, cognizable on the revenue
side of the exchequer," The Palmyra, supra, at 14, it never had
suggested that the Constitution prohibited for statutory civil forfeiture
what was required for common-law civil forfeiture. For the Various
Items Court to have held that the forfeiture was prohibited by the
prior criminal proceeding would have been directly contrary to the
common-law rule, and would have called into question the
constitutionality of forfeiture statutes thought constitutional for over a
century. See United States v. Curtiss-Wright Export Corp., 299 U.
S. 304, 327-328 (1936) (Evidence of a longstanding legislative
practice "goes a long way in the direction of proving the presence of
unassailable grounds for the constitutionality of the practice").
Following its decision in Various Items, the Court did not consider
another double jeopardy case involving a civil forfeiture for 40 years.
Then, in One Lot Emerald Cut Stones v. United States, 409 U. S.
232 (1972) (per curiam), the Court's brief opinion reaffirmed the rule
of Various Items. In Emerald Cut Stones, after having been
acquitted of smuggling jewels into the United States, the owner of
the jewels intervened in a proceeding to forfeit them as contraband.
We rejected the owner's double jeopardy challenge to the forfeiture,
holding that "[i]f for no other reason the forfeiture is not barred by
the Double Jeopardy Clause of the Fifth Amendment because it
involves neither two criminal trials nor two criminal punishments."
409 U. S., at 235. Noting that the forfeiture provisions had been
codified separately from parallel criminal provisions, the Court
determined that the forfeiture clearly was "a civil sanction." Id., at
236. The forfeitures were not criminal punishments because they did
not impose a second in personam penalty for the criminal defendant's
wrongdoing.
In our most recent decision considering whether a civil forfeiture
constitutes punishment under the Double Jeopardy Clause, we again
affirmed the rule of Various Items. In United States v. One
Assortment of 89 Firearms, 465 U. S. 354 (1984), the owner of the
defendant weapons was acquitted of charges of dealing firearms
without a license. The Government then brought a forfeiture action
against the firearms under 18 U. S. C. Section 924(d), alleging that
they were used or were intended to be used in violation of federal
law.
In another unanimous decision, we held that the forfeiture was not
barred by the prior criminal proceeding. We began our analysis by
stating the rule for our decision:
"Unless the forfeiture sanction was intended as punishment, so that
the proceeding is essentially criminal in character, the Double
Jeopardy Clause is not applicable. The question, then, is whether a
Section 924(d) forfeiture proceeding is intended to be, or by its
nature necessarily is, criminal and punitive, or civil and remedial."
89 Firearms, supra, at 362 (citations omitted).
Our inquiry proceeded in two stages. In the first stage, we looked to
Congress' intent, and concluded that "Congress designed forfeiture
under Section 924(d) as a remedial civil sanction." 465 U. S., at
363. This conclusion was based upon several findings. First,
noting that the forfeiture proceeding was in rem, we found it
significant that "actions in rem have traditionally been viewed as civil
proceedings, with jurisdiction dependent upon the seizure of a
physical object." 89 Firearms, id., at 363, citing, Calero-Toledo v.
Pearson Yacht Leasing Co., 416 U. S., at 684. Second, we found
that the forfeiture provision, because it reached both weapons used in
violation of federal law and those "intended to be used" in such a
manner, reached a broader range of conduct than its criminal
analogue. Third, we concluded that the civil forfeiture "further[ed]
broad remedial aims," including both "discouraging unregulated
commerce in firearms," and "removing from circulation firearms that
have been used or intended for use outside regulated channels of
commerce." 89 Firearms, supra, at 364.
In the second stage of our analysis, we looked to "`whether the
statutory scheme was so punitive either in purpose or effect as to
negate' Congress' intention to establish a civil remedial mechanism,"
465 U. S., at 365, quoting United States v. Ward, 448 U. S. 242,
248-249 (1980). Considering several factors that we had used
previously in order to determine whether a civil proceeding was so
punitive as to require application of the full panoply of constitutional
protections required in a criminal trial, see id., at 248, we found only
one of those factors to be present in the Section 924(d) forfeiture.
By itself, however, the fact that the behavior proscribed by the
forfeiture was already a crime proved insufficient to turn the
forfeiture into a punishment subject to the Double Jeopardy Clause.
Hence, we found that the petitioner had "failed to establish by the
`clearest proof' that Congress has provided a sanction so punitive as
to `transfor[m] what was clearly intended as a civil remedy into a
criminal penalty.'" 89 Firearms, supra, at 366, quoting Rex Trailer
Co. v. United States, 350 U. S. 148, 154 (1956). We concluded
our decision by restating that civil forfeiture is "not an additional
penalty for the commission of a criminal act, but rather is a separate
civil sanction, remedial in nature." 89 Firearms, supra, at 366.
Our cases reviewing civil forfeitures under the Double Jeopardy
Clause adhere to a remarkably consistent theme. Though the two-part
analytical construct employed in 89 Firearms was more refined,
perhaps, than that we had used over 50 years earlier in Various
Items, the conclusion was the same in each case: in rem civil
forfeiture is a remedial civil sanction, distinct from potentially
punitive in personam civil penalties such as fines, and does not
constitute a punishment under the Double Jeopardy Clause. See Gore
v. United States, 357 U. S. 386, 392 (1958) ("In applying a
provision like that of double jeopardy, which is rooted in history and
is not an evolving concept . . . a long course of adjudication in this
Court carries impressive authority").
In the case that we currently review, the Court of Appeals for the
Ninth Circuit recognized as much, concluding that after 89 Firearms,
"the law was clear that civil forfeitures did not constitute
`punishment' for double jeopardy purposes." 33 F. 3d, at 1218.
Nevertheless, that court read three of our decisions to have
"abandoned" 89 Firearms and the oft-affirmed rule of Various Items.
According to the Court of Appeals for the Ninth Circuit, through our
decisions in 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), we "changed [our]
collective mind," and "adopted a new test for determining whether a
nominally civil sanction constitutes `punishment' for double jeopardy
purposes." 33 F. 3d, at 1218-1219. The Court of Appeals for the
Sixth Circuit shared the view of the Ninth Circuit, though it did not
directly rely upon Kurth Ranch. We turn now to consider whether
Halper, Austin, and Kurth Ranch accomplished the radical
jurisprudential shift perceived by the Courts of Appeals.
In Halper, we considered "whether and under what circumstances a
civil penalty may constitute `punishment' for the purposes of double
jeopardy analysis." Halper, supra, at 436. Based upon his
submission of 65 inflated Medicare claims, each of which
overcharged the Government by $9, Halper was criminally convicted
of 65 counts of violating the false-claims statute, 18 U. S. C. Section
287 (1982 ed.), as well as of 16 counts of mail fraud, and was
sentenced to two years in prison and fined $5,000. Following that
criminal conviction, the Government successfully brought a civil
action against Halper under 31 U. S. C. Section 3729 (1982 ed. and
Supp. II). The District Court hearing the civil action determined that
Halper was liable to the Government for over $130,000 under
Section 3729, which then provided for liability in the amount of
$2,000 per violation, double the Government's actual damages, and
court costs. The court concluded that imposing the full civil penalty
would constitute a second punishment for Halper's already-punished
criminal offense, however, and therefore reduced Halper's liability to
double the actual damages suffered by the Government and the costs
of the civil action. The Government directly appealed that decision to
this Court.
This Court agreed with the District Court's analysis. We determined
that our precedent had established no absolute and irrebuttable rule
that a civil fine cannot be "punishment" under the Double Jeopardy
Clause. Though it was well established that "a civil remedy does not
rise to the level of `punishment' merely because Congress provided
for civil recovery in excess of the Government's actual damages," we
found that our case law did "not foreclose the possibility that in a
particular case a civil penalty... may be so extreme and so divorced
from the Government's damages and expenses as to constitute
punishment." 490 U. S., at 442. Emphasizing the case-specific
nature of our inquiry, id., at 448, we compared the size of the fine
imposed on Halper, $130,000, to the damages actually suffered by
the Government as a result of Halper's actions, estimated by the
District Court at $585. Noting that the fine was more than 220 times
greater than the Government's damages, we agreed with the District
Court that "Halper's $130,000 liability is sufficiently
disproportionate that the sanction constitutes a second punishment in
violation of double jeopardy." Id., at 452. We remanded to the
District Court so that it could hear evidence regarding the
Government's actual damages, and could then reduce Halper's
liability to a nonpunitive level. Ibid.
In Austin, we considered whether a civil forfeiture could violate the
Excessive Fines Clause of the Eighth Amendment to the
Constitution, which provides that "[e]xcessive bail shall not be
required, nor excessive fines imposed . . . ." U. S. Const., Amdt.
8. Aware that Austin had sold two grams of cocaine the previous
day, police searched his mobile home and body shop. Their search
revealed small amounts of marijuana and cocaine, a handgun, drug
paraphernalia, and almost $5,000 in cash. Austin was charged with
one count of possessing cocaine with intent to distribute, to which he
pleaded guilty. The Government then initiated a civil forfeiture
proceeding against Austin's mobile home and auto shop, contending
that they had been "used" or were "intended for use" in the
commission of a drug offense. See 21 U. S. C. Sections 881(a)(4)
and (a)(7). Austin contested the forfeiture on the ground of the
Excessive Fines Clause, but the District Court and the Court of
Appeals held the forfeiture constitutional.
We limited our review to the question "whether the Excessive Fines
Clause of the Eighth Amendment applies to forfeitures of property
under 21 U. S. C. Sections 881(a)(4) and (a)(7)." Austin, supra, at
604. We began our analysis by rejecting the argument that the
Excessive Fines Clause was limited solely to criminal proceedings:
The relevant question was not whether a particular proceeding was
criminal or civil, we determined, but rather was whether forfeiture
under Sections 881 (a)(4) and (a)(7) constituted "punishment" for the
purposes of the Eighth Amendment. Austin, supra, at 610. In an
effort to answer that question, we briefly reviewed the history of civil
forfeiture both in this country and in England, see id., at 611-618,
taking a categorical approach that contrasted sharply with Halper's
case-specific approach to determining whether a civil penalty
constitutes punishment. Ultimately, we concluded that "forfeiture
under [Sections 881(a)(4) and (a)(7)] constitutes `payment to a
sovereign as punishment for some offense,' and, as such, is subject
to the limitations of the Eighth Amendment's Excessive Fines
Clause." Id., at 622.
In Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. ___
(1994), we considered whether a state tax imposed on marijuana was
invalid under the Double Jeopardy Clause when the taxpayer had
already been criminally convicted of owning the marijuana which
was taxed. We first established that the fact that Montana had labeled
the civil sanction a "tax" did not end our analysis. We then turned to
consider whether the tax was so punitive as to constitute a
punishment subject to the Double Jeopardy Clause. Several
differences between the marijuana tax imposed by Montana and the
typical revenue-raising tax were readily apparent. The Montana tax
was unique in that it was conditioned on the commission of a crime
and was imposed only after the taxpayer had been arrested: thus,
only a person charged with a criminal offense was subject to the tax.
We also noted that the taxpayer did not own or possess the taxed
marijuana at the time that the tax was imposed. From these
differences, we determined that the tax was motivated by a " `penal
and prohibitory intent rather than the gathering of revenue.' " Id., at
___ (slip op., at 16). Concluding that the Montana tax proceeding
"was the functional equivalent of a successive criminal prosecution,"
we affirmed the Court of Appeals' judgment barring the tax. Id., at
___ (slip op., at 17).
We think that the Court of Appeals for the Sixth Circuit and the Court
of Appeals for the Ninth Circuit misread Halper, Austin, and Kurth
Ranch. None of those decisions purported to overrule the well-
established teaching of Various Items, Emerald Cut Stones, and 89
Firearms. Halper involved not a civil forfeiture, but a civil penalty.
That its rule was limited to the latter context is clear from the decision
itself, from the historical distinction that we have drawn between civil
forfeiture and civil penalties, and from the practical difficulty of
applying Halper to a civil forfeiture.
In Halper, we emphasized that our decision was limited to the context
of civil penalties:
"What we announce now is a rule for the rare case, the case such as
the one before us, where a fixed-penalty provision subjects a prolific
but small-gauge offender to a sanction overwhelmingly
disproportionate to the damages he has caused. The rule is one of
reason: Where a defendant previously has sustained a criminal
penalty and the civil penalty sought in the subsequent proceeding
bears no rational relation to the goal of compensating the Government
for its loss, but rather appears to qualify as `punishment' in the plain
meaning of the word, then the defendant is entitled to an accounting
of the Government's damages and costs to determine if the penalty
sought in fact constitutes a second punishment." 490 U. S., at 449-
450 (emphasis added).
The narrow focus of Halper followed from the distinction that we
have drawn historically between civil forfeiture and civil penalties.
Since at least Various Items, we have distinguished civil penalties
such as fines from civil forfeiture proceedings that are in rem. While
a "civil action to recover . . . penalties, is punitive in character," and
much like a criminal prosecution in that "it is the wrongdoer in
person who is proceeded against... and punished," in an in rem
forfeiture proceeding, "it is the property which is proceeded against,
and by resort to a legal fiction, held guilty and condemned." Various
Items, 282 U. S., at 580-581. Thus, though for Double Jeopardy
purposes we have never balanced the value of property forfeited in a
particular case against the harm suffered by the Government in that
case, we have balanced the size of a particular civil penalty against
the Government's harm. See, e.g., Rex Trailer Co. v. United
States, 350 U. S. 148, 154 (1956) (fines not "so unreasonable or
excessive" as to transform a civil remedy into a criminal penalty);
United States ex rel. Marcus v. Hess, 317 U. S. 537 (1943) (fine of
$315,000 not so disproportionate to Government's harm of
$101,500 as to transform the fine into punishment). Indeed, the rule
set forth in Halper developed from the teaching of Rex Trailer and
Hess. See Halper, supra, at 445-447.
It is difficult to see how the rule of Halper could be applied to a civil
forfeiture. Civil penalties are designed as a rough form of "liquidated
damages" for the harms suffered by the Government as a result of a
defendant's conduct. See Rex Trailer, supra, at 153-154. The civil
penalty involved in Halper, for example, provided for a fixed
monetary penalty for each false claim count on which the defendant
was convicted in the criminal proceeding. Whether a "fixed-penalty
provision" that seeks to compensate the Government for harm it has
suffered is "so extreme" and "so divorced" from the penalty's
nonpunitive purpose of compensating the Government as to be a
punishment may be determined
by balancing the Government's harm against the size of the penalty.
Civil forfeitures, in contrast to civil penalties, are designed to do
more than simply compensate the Government. Forfeitures serve a
variety of purposes, but are designed primarily to confiscate property
used in violation of the law, and to require disgorgement of the fruits
of illegal conduct. Though it may be possible to quantify the value of
the property forfeited, it is virtually impossible to quantify, even
approximately, the nonpunitive purposes served by a particular civil
forfeiture. Hence, it is practically difficult to determine whether a
particular forfeiture bears no rational relationship to the nonpunitive
purposes of that forfeiture. Quite simply, the case-by-case balancing
test set forth in Halper, in which a court must compare the harm
suffered by the Government against the size of the penalty imposed,
is inapplicable to civil forfeiture.2
We recognized as much in Kurth Ranch. In that case, the Court
expressly disclaimed reliance upon Halper, finding that its case-
specific approach was impossible to apply outside the context of a
fixed civil-penalty provision. Reviewing the Montana marijuana tax,
we held that because "tax statutes serve a purpose quite different
from civil penalties, . . . Halper's method of determining whether the
exaction was remedial or punitive simply does not work in the case
of a tax statute." Kurth Ranch, supra, at ___ (slip op., at 17)
(internal quotation marks omitted); see also id., at ___ (slip op., at 2-
3) (REHNQUIST, C. J., dissenting) (Halper inapplicable outside of
" `fixed-penalty provision[s]' " that are meant "to recover the costs
incurred by the Government for bringing someone to book for some
violation of law"). This is not to say that there is no occasion for
analysis of the Government's harm. 89 Firearms makes clear the
relevance of an evaluation of the harms alleged. The point is simply
that Halper's case-specific approach is inapplicable to civil
forfeitures.
In the cases that we review, the Courts of Appeals did not find
Halper difficult to apply to civil forfeiture because they concluded
that its case-by-case balancing approach had been supplanted in
Austin by a categorical approach that found a civil sanction to be
punitive if it could not "fairly be said solely to serve a remedial
purpose." See Austin, 509 U. S., at 610; see also Halper, supra, at
448. But Austin, it must be remembered, did not involve the Double
Jeopardy Clause at all. Austin was decided solely under the
Excessive Fines Clause of the Eighth Amendment, a constitutional
provision which we never have understood as parallel to, or even
related to, the Double Jeopardy Clause of the Fifth Amendment. The
only discussion of the Double Jeopardy Clause contained in Austin
appears in a footnote that acknowledges our decisions holding that
"[t]he Double Jeopardy Clause has been held not to apply in civil
forfeiture proceedings... where the forfeiture could properly be
characterized as remedial." Austin, supra, at 608, n. 4. And in
Austin we expressly recognized and approved our decisions in One
Lot Emerald Cut Stones v. United States, 409 U. S. 232 (1972), and
United States v. One Assortment of 89 Firearms, 465 U. S. 354
(1984). See Austin, supra, at 608, n. 4.
We acknowledged in Austin that our categorical approach under the
Excessive Fines Clause was wholly distinct from the case-by-case
approach of Halper, and we explained that the difference in approach
was based in a significant difference between the purposes of our
analysis under each constitutional provision. See Austin, supra, at
622, n. 14. It is unnecessary in a case under the Excessive Fines
Clause to inquire at a preliminary stage whether the civil sanction
imposed in that particular case is totally inconsistent with any
remedial goal. Because the second stage of inquiry under the
Excessive Fines Clause asks whether the particular sanction in
question is so large as to be "excessive," see Austin, 509 U. S., at
622-623 (declining to establish criteria for excessiveness), a
preliminary-stage inquiry that focused on the disproportionality of a
particular sanction would be duplicative of the excessiveness analysis
that would follow. See id., at 622, n. 14 ("[I]t appears to make little
practical difference whether the Excessive Fines Clause applies to all
forfeitures . . . or only to those that cannot be characterized as purely
remedial," because the Excessive Fines Clause "prohibits only the
imposition of `excessive' fines, and a fine that serves purely remedial
purposes cannot be considered `excessive' in any event").
Forfeitures effected under 21 U. S. C. Sections 881(a)(4) and (a)(7)
are subject to review for excessiveness under the Eighth Amendment
after Austin; this does not mean, however, that those forfeitures are
so punitive as to constitute punishment for the purposes of double
jeopardy. The holding of Austin was limited to the Excessive Fines
Clause of the Eighth Amendment, and we decline to import the
analysis of Austin into our double jeopardy jurisprudence.
In sum, nothing in Halper, Kurth Ranch, or Austin, purported to
replace our traditional understanding that civil forfeiture does not
constitute punishment for the purpose of the Double Jeopardy
Clause. Congress long has authorized the Government to bring
parallel criminal proceedings and civil forfeiture proceedings, and
this Court consistently has found civil forfeitures not to constitute
punishment under the Double Jeopardy Clause. It would have been
quite remarkable for this Court both to have held unconstitutional a
well-established practice, and to have overruled a long line of
precedent, without having even suggested that it was doing so.
Halper dealt with in personam civil penalties under the Double
Jeopardy Clause; Kurth Ranch with a tax proceeding under the
Double Jeopardy Clause; and Austin with civil forfeitures under the
Excessive Fines Clause. None of those cases dealt with the subject
of this case: in rem civil forfeitures for purposes of the Double
Jeopardy Clause.
We turn now to consider the forfeitures in these cases under the
teaching of Various Items, Emerald Cut Stones, and 89 Firearms.
Because it provides a useful analytical tool, we conduct our inquiry
within the framework of the two-part test used in 89 Firearms. First,
we ask whether Congress intended proceedings under 21 U. S. C.
Section 881, and 18 U. S. C. Section 981, to be criminal or civil.
Second, we turn to consider whether the proceedings are so punitive
in fact as to "persuade us that the forfeiture proceeding[s] may not
legitimately be viewed as civil in nature," despite Congress' intent.
89 Firearms, 465 U. S., at 366.
There is little doubt that Congress intended these forfeitures to be
civil proceedings. As was the case in 89 Firearms, "Congress' intent
in this regard is most clearly demonstrated by the procedural
mechanisms it established for enforcing forfeitures under the
statute[s]." 465 U. S., at 363. Both 21 U. S. C. Section 881 and
18 U. S. C. Section 981, which is entitled "Civil forfeiture," provide
that the laws "relating to the seizure, summary and judicial forfeiture,
and condemnation of property for violation of the customs laws . . .
shall apply to seizures and forfeitures incurred" under Section 881
and Section 981. See 21 U. S. C. Section 881(d); 18 U. S. C.
Section 981(d). Because forfeiture proceedings under the customs
laws are in rem, see 19 U. S. C. Section 1602 et seq., it is clear that
Congress intended that a forfeiture under Section 881 or Section 981,
like the forfeiture reviewed in 89 Firearms, would be a proceeding in
rem. Congress specifically structured these forfeitures to be
impersonal by targeting the property itself. "In contrast to the in
personam nature of criminal actions, actions in rem have traditionally
been viewed as civil proceedings, with jurisdiction dependent upon
seizure of a physical object." 89 Firearms, 465 U. S., at 363, citing
Calero-Toledo, 416 U. S., at 684.
Other procedural mechanisms governing forfeitures under Section
981 and Section 881 also indicate that Congress intended such
proceedings to be civil. Forfeitures under either statute are governed
by 19 U. S. C. Section 1607, which provides that actual notice of the
impending forfeiture is unnecessary when the Government cannot
identify any party with an interest in the seized article, and by Section
1609, which provides that seized property is subject to forfeiture
through a summary administrative procedure if no party files a claim
to the property. And 19 U. S. C. Section 1615, which governs the
burden of proof in forfeiture proceedings under Section 881 and
Section 981, provides that once the Government has shown probable
cause that the property is subject to forfeiture, then "the burden of
proof shall lie upon [the] claimant." In sum, "[b]y creating such
distinctly civil procedures for forfeitures under [Section 881 and
Section 981], Congress has `indicate[d] clearly that it intended a
civil, not a criminal sanction.'" 89 Firearms, supra, at 363, quoting
Helvering v. Mitchell, 303 U. S., at 402.3
Moving to the second stage of our analysis, we find that there is little
evidence, much less the " `clearest proof' " that we require, see 89
Firearms, supra, at 365, quoting Ward, 448 U. S., at 249,
suggesting that forfeiture proceedings under 21 U. S. C. Sections
881(a)(6) and (a)(7), and 19 U. S. C. Section 981(a)(1)(A), are so
punitive in form and effect as to render them criminal despite
Congress' intent to the contrary. The statutes involved in this case
are, in most significant respects, indistinguishable from those
reviewed, and held not to be punitive, in Various Items, Emerald Cut
Stones, and 89 Firearms.
Most significant is that Section 981(a)(1)(A), and Sections 881(a)(6)
and (a)(7), while perhaps having certain punitive aspects, serve
important nonpunitive goals. Title 21 U. S. C. Section 881(a)(7),
under which Ursery's property was forfeited, provides for the
forfeiture of "all real property . . . which is used or intended to be
used, in any manner or part, to commit, or to facilitate the
commission of" a federal drug felony. Requiring the forfeiture of
property used to commit federal narcotics violations encourages
property owners to take care in managing their property and ensures
that they will not permit that property to be used for illegal purposes.
See Bennis v. Michigan, 516 U. S. ___, ___ (1996) (slip op., at
10) ("Forfeiture of property prevents illegal uses... by imposing an
economic penalty, thereby rendering illegal behavior unprofitable");
89 Firearms, supra, at 364 (forfeiture "discourages unregulated
commerce in firearms"); Calero-Toledo, supra, at 687-688. In many
circumstances, the forfeiture may abate a nuisance. See, e.g., United
States v. 141st Street Corp., 911 F. 2d 870 (CA2 1990) (forfeiting
apartment building used to sell crack cocaine); see also Bennis,
supra, at ___ (slip op., at 10) (affirming application of Michigan
statute abating car as a nuisance; forfeiture "prevent[s] further illicit
use of" property); cf. 89 Firearms, supra, at 364 (forfeiture
"remov[ed] from circulation firearms that have been used or intended
for use" illegally); Emerald Cut Stones, 409 U. S., at 237 (forfeiture
"prevented forbidden merchandise from circulating in the United
States").
The forfeiture of the property claimed by Arlt and Wren took place
pursuant to 18 U. S. C. Section 981(a)(1)(A), and 21 U. S. C.
Section 881(a)(6). Section 981(a)(1)(A) provides for the forfeiture
of "any property" involved in illegal money-laundering transactions.
Section 881(a)(6) provides for the forfeiture of "[a]ll . . . things of
value furnished or intended to be furnished by any person in
exchange for" illegal drugs; "all proceeds traceable to such an
exchange"; and "all moneys, negotiable instruments, and securities
used or intended to be used to facilitate" a federal drug felony. The
same remedial purposes served by Section 881(a)(7) are served by
Section 881(a)(6) and Section 981(a)(1)(A). Only one point merits
separate discussion. To the extent that Section 881(a)(6) applies to
"proceeds" of illegal drug activity, it serves the additional
nonpunitive goal of ensuring that persons do not profit from their
illegal acts.
Other considerations that we have found relevant to the question
whether a proceeding is criminal also tend to support a conclusion
that Section 981(a)(1)(A) and Sections 881 (a)(6) and (a)(7) are civil
proceedings. See Ward, supra, at 247-248, n. 7, 249 (listing
relevant factors and noting that they are neither exhaustive nor
dispositive). First, in light of our decisions in Various Items,
Emerald Cut Stones, and 89 Firearms, and the long tradition of
federal statutes providing for a forfeiture proceeding following a
criminal prosecution, it is absolutely clear that in rem civil forfeiture
has not historically been regarded as punishment, as we have
understood that term under the Double Jeopardy Clause. Second,
there is no requirement in the statutes that we currently review that
the Government demonstrate scienter in order to establish that the
property is subject to forfeiture; indeed, the property may be subject
to forfeiture even if no party files a claim to it and the Government
never shows any connection between the property and a particular
person. See 19 U. S. C. Section 1609. Though both Section 881(a)
and Section 981(a) contain an "innocent owner" exception, we do not
think that such a provision, without more indication of an intent to
punish, is relevant to the question whether a statute is punitive under
the Double Jeopardy Clause. Third, though both statutes may fairly
be said to serve the purpose of deterrence, we long have held that this
purpose may serve civil as well as criminal goals. See, e.g., 89
Firearms, supra, at 364; Calero-Toledo, supra, at 677-678. We
recently reaffirmed this conclusion in Bennis v. Michigan, supra, at
___ (slip. op., at 10), where we held that "forfeiture . . . serves a
deterrent purpose distinct from any punitive purpose." Finally,
though both statutes are tied to criminal activity, as was the case in 89
Firearms, this fact is insufficient to render the statutes punitive. See
89 Firearms, 465 U. S., at 365-366. It is well settled that "Congress
may impose both a criminal and a civil sanction in respect to the same
act or omission," Helvering, 303 U. S., at 399. By itself, the fact
that a forfeiture statute has some connection to a criminal violation is
far from the "clearest proof" necessary to show that a proceeding is
criminal.
We hold that these in rem civil forfeitures are neither "punishment"
nor criminal for purposes of the Double Jeopardy Clause. The
judgments of the Court of Appeals for the Sixth Circuit, in No. 95-
345, and of the Court of Appeals for the Ninth Circuit, in No. 95-
346, are accordingly reversed.
It is so ordered.
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 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. Section
881(a)(7) at issue here as punitive. In Libretti v. United States, 516
U. S. ___ (1995), we reviewed 21 U. S. C. Section 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 "protec[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 contrary, 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 Property 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, convicted and punished. The forfeiture is
no part of the punishment for the criminal offense. The provision of
the Fifth Amendment to the Constitution 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 punishments 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 concurring 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 Section
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-forfeiture 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, Section 881(a)(6). See
also 18 U. S. C. Section 981(a)(1)(A) (property involved in money-
laundering transactions or attempts in violation of 18 U. S. C.
Section 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 punishment 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 Jeopardy
Clause of the Fifth Amendment because it involves 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 conviction, 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 personam 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 punished 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
forfeiture 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. Section 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. Section 881(a)(6) ("any violation of this subchapter");
Section 881(a)(7) ("a violation of this subchapter"); 18 U. S. C.
Section 981(a)(1)(A) ("a transaction or attempted transaction in
violation of" 18 U. S. C. Section 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 unavailing. Blockburger is a misfit in this
context; it compares the elements of two offenses charged against a
defendant. 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 punishment 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 property owners from allowing
their goods to be used for illegal 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.
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 SCALIA, with whom JUSTICE THOMAS joins,
concurring in the judgment.
In my view, the Double Jeopardy Clause prohibits successive
prosecution, not successive punishment. See Department of
Revenue of Mont. v. Kurth Ranch, 511 U. S. ___, ___ (1994) (slip
op., at 1-4, 8) (SCALIA, J., dissenting). Civil forfeiture
proceedings of the sort at issue here are not criminal prosecutions,
even under the standard of Kennedy v. Mendoza-Martinez, 372 U.
S. 144, 164 (1963), and United States v. Ward, 448 U. S. 242,
248-251 (1980).
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 forfeitures 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, contraband, 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 respondents 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. Respondent Ursery cultivated marijuana in a
heavily wooded area not far from his home in Shiawassee County,
Michigan. The illegal substance was consumed by members of his
family, but there is no evidence, and no contention 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.
Accordingly, 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. Section 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
marijuana.1 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 Section
881(a)(7) followed by his prosecution under Section 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.
In recent years, both Congress and the state legislatures have armed
their law enforcement authorities with new powers to forfeit property
that vastly exceed their traditional tools.2 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 distillery 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 confiscating 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 respects, 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 recognized 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 characterized 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
declaring 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 automobile 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. Section 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. Section 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.3 By confining its holding to civil
forfeitures fairly characterized as remedial, and by distinguishing
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. Section 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 forfeitures, 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 proportion
to the damage done.4
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. Sections
881(a)(4) and (a)(7) because he had sold cocaine there. Applying
Halper's definition of punishment, see 509 U. S., at 610, 621, we
held that Sections 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 Sections 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.5
The majority implies that Austin's "categorical approach" 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
concluded that it was motivated by a "penal and prohibitory intent."
Id., at ___ (slip op., at 14).6 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 "impossible 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
(compensation), 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. 4.7
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.8 But it was not necessary in
Austin, strictly speaking, to decide that all in rem forfeitures are
punitive. As JUSTICE SCALIA emphasized in his separate opinion,
it was only necessary to characterize the specific "in rem forfeiture in
this case." 509 U. S., at 626 (concurring in part and concurring in
judgment). The punitive nature of Sections 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 requirement for forfeiture. Further, the provisions tied forfeiture
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 punish.'" Ibid. (quoting S. Rep. No. 98-225, p. 191
(1983)). In sum, it was unanimously agreed that "[s]tatutory
forfeitures under Section 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 concurring in judgment)
(emphasis in original).9
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 Section 881(a)(7) is remedial rather than
punitive in character. Every reason Austin gave for treating Section
881(a)(7) as punitive--the Court rejects or ignores. Every reason the
Court provides for treating Section 881(a)(7) as remedial--Austin
rebuffed. The Court claims that its conclusion is consistent with
decisions reviewing statutes "indistinguishable" "in most significant
respects" from Section 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 respondent's house is
remedial in nature because it was an instrumentality of a drug crime.
It is perfectly conceivable 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.10
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. "`Retribution 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 considerations that
persuaded the majority in Austin to find 21 U. S. C. Section
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.
Section 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 620.11
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 constitutional
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 gambling 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 638.12 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. 9.13
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
determining 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.14 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 rationale, 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 property 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.15
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 characterizing 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 damages 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
distinctions 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 conclusion that this forfeiture was "punishment" for
purposes of the Double Jeopardy Clause.16
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 "jeopardy," 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 defendants
had been "twice put in jeopardy" as the text of the Clause forbids.
The prohibition against two such proceedings 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").
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 forfeiture--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 Government 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 property 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 Section 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-repeated 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 constituted a second jeopardy.
JUSTICE KENNEDY joins the Court's opinion and therefore ought
to agree with the majority that civil forfeitures do not constitute
punishment for purposes of the Double Jeopardy Clause. In fact,
however, he recognizes 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 punishes for the
misuse of property. Ibid. It might be true that some forfeiture
statutes are best described as creating 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. Section 881(a)(7)
(subjecting to forfeiture "[a]ll real property . . . which is used . . . to
commit . . . a violation 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 knowledge or consent of that owner." Ibid. (emphasis added).
In Austin, we held that the exemption revealed a "congressional
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 proportionality of a
forfeiture be measured by the relationship 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.
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.17 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 warranted 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).18 If, as we have already determined, the "civil"
forfeitures pursuant to Section 881(a)(7) are in fact punitive, a single
judgment encompassing the entire punishment for the defendant's
offense is precisely what the Double Jeopardy Clause requires.
Congress' decision to create novel and additional penalties should not
be permitted to eviscerate the protection against governmental
overreaching embodied in the Double Jeopardy Clause. That
protection has far deeper roots than the relatively recent enactments
that have so dramatically expanded the sovereign's power to forfeit
private property.
One final example may illustrate the depth of my concern 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 manufacture 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. Consider how drastic the remedy
would have been if Congress 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.
ENDNOTES FOR CHIEF JUSTICE REHNQUIST
1 The Government raises three other challenges to the decisions that
we review. First, focusing on the decision of the Court of Appeals
for the Sixth Circuit in No. 95-345, the Government contends that
the Double Jeopardy Clause applies only to prohibit a punishment
imposed following a "jeopardy," and that a civil forfeiture, regardless
whether it is a "punishment," is not a "jeopardy." Thus, because
Ursery had not been placed in "jeopardy" in the civil forfeiture
proceeding against his house, the Double Jeopardy Clause was
inapplicable to his criminal prosecution. Second, the Government
argues that the civil forfeiture of property is not the same offense as a
criminal prosecution, and therefore that the double jeopardy
protection against multiple punishments for the same offense is not at
issue here. Finally, the Government argues that a civil forfeiture
action that is parallel and contemporaneous with a criminal
prosecution should be deemed to constitute a single proceeding
within the meaning of the Double Jeopardy Clause.
Because we conclude that the civil forfeitures involved in these cases
do not constitute punishment under the Double Jeopardy Clause, see
infra, at ___, we do not address those three arguments in this
decision.
2 JUSTICE STEVENS' dissent is grounded in the different
interpretation that he gives Halper. He finds that Halper announced
"two different rules": a general rule, applicable to all civil sanctions,
useful for determining whether a sanction is "of a punitive character";
and a "narrower rule," similar to our understanding of the case, that
requires "an accounting of the Government's damages and costs."
Post at 12. JUSTICE STEVENS faults us in this case for failing to
apply the "general rule" of Halper.
The problem with JUSTICE STEVENS' interpretation of Halper, of
course, and therefore with his entire argument, is that Halper did not
announce two rules. Nowhere in Halper does the Court set forth two
distinct rules or purport to apply a two-step analysis. JUSTICE
STEVENS finds his "general rule" in a dictum from Halper: " `[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.' " Post, at 10,
quoting United States v. Halper, 490 U. S. 435, 448 (1989). But
the discussion immediately following that dictum makes clear that it
states not a new and separate test for whether a sanction is a
punishment, but rather only a rephrasing of JUSTICE STEVENS'
"narrower" rule, i.e., the rule requiring an "accounting of the
Government's damages and costs." Id., at 449.
"We therefore hold that under the Double Jeopardy Clause a
defendant who already has been punished . . . 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.
"We acknowledge that this inquiry will not be an exact pursuit. In
our decided cases we have noted that the precise amount of the
Government's damages and costs may prove to be difficult, if not
impossible, to ascertain.... [I]t would be difficult if not impossible in
many cases for a court to determine the precise dollar figure at which
a civil sanction has accomplished its remedial purpose of making the
Government whole, but beyond which the sanction takes on the
quality of punishment." Id., at 448-449 (emphasis added); see also
id., at 449-451.
The "general rule" discovered by JUSTICE STEVENS in Halper
would supplant, not mimic, see post at 14, the rule of 89 Firearms,
and Emerald Cut Stones. Whether a particular sanction "cannot fairly
be said solely to serve a remedial purpose" is an inquiry radically
different from that we have traditionally employed in order to
determine whether, as a categorical matter, a civil sanction is subject
to the Double Jeopardy Clause. Yet nowhere in Halper does the
Court purport to make such a sweeping change in the law, instead
emphasizing repeatedly the narrow scope of its decision. Halper,
supra, at 449 (announcing rule for "the rare case"). If the "general
rule" of JUSTICE STEVENS were applied literally, then virtually
every sanction would be declared to be a punishment: it is hard to
imagine a sanction that has no punitive aspect whatsoever. JUSTICE
STEVENS' interpretation of Halper is both contrary to the decision
itself and would create an unworkable rule inconsistent with well-
established precedent.
3 JUSTICE STEVENS mischaracterizes our holding. We do not
hold that in rem civil forfeiture is per se exempt from the scope of the
Double Jeopardy Clause. See post at 5-9. Similarly, we do not rest
our conclusion in this case upon the long-recognized fiction that a
forfeiture in rem punishes only malfeasant property rather than a
particular person. See post, at 18-21. That a forfeiture is designated
as civil by Congress and proceeds in rem establishes a presumption
that it is not subject to double jeopardy. See, e.g., United States v.
One Assortment of 89 Firearms, 465 U. S. 354, 363 (1984).
Nevertheless, where the "clearest proof" indicates that an in rem civil
forfeiture is "so punitive either in purpose or effect" as to be
equivalent to a criminal proceeding, that forfeiture may be subject to
the Double Jeopardy Clause. Id., at 365.
ENDNOTES FOR JUSTICE STEVENS CONCURRING
1 The contraband found on the premises was evidence that the
building had been used to facilitate the commission of a violation of
Title 21 punishable by more than one year's imprisonment. To
justify that forfeiture, the Government assumed the burden of
proving (a) that respondent had committed such an offense, and (b)
that the property had played some part in it. The statute provides as
follows:
"Section 881. Forfeitures
"(a) Subject property
"The following shall be subject to forfeiture to the United States and
no property right shall exist in them:
"(7) All real property, including any right, title, and interest
(including any leasehold interest) in the whole of any lot or tract of
land and any appurtenances or improvements, which is used, or
intended to be used, in any manner or part, to commit, or to facilitate
the commission of, a violation of this subchapter punishable by more
than one year's imprisonment, except that no property shall be
forfeited under this paragraph, to the extent of an interest of an
owner, by reason of any act or omission established by that owner to
have been committed or omitted without the knowledge or consent of
that owner." Section 881(a)(7).
2 JUSTICE THOMAS has expressed his concern about both the
unusual scope and the novelty of the very statute used to carry out the
forfeiture in this case:
"I am disturbed by the breadth of new civil forfeiture statutes such as
21 U. S. C. Section 881(a)(7), which subjects to forfeiture all real
property that is used, or intended to be used, in the commission, or
even the facilitation, of a federal drug offense. As JUSTICE
O'CONNOR points out . . . since the Civil War we have upheld
statutes allowing for the civil forfeiture of real property. A strong
argument can be made, however, that Section 881(a)(7) is so broad
that it differs not only in degree, but in kind, from its historical
antecedents.... Indeed, it is unclear whether the central theory behind
in rem forfeiture, the fiction `that the thing is primarily considered the
offender,' J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.
S. 505, 511 (1921), can fully justify the immense scope of Section
881(a)(7). Under this provision, `large tracts of land [and any
improvements thereon] which have no connection with crime other
than being the location where a drug transaction occurred,' Brief for
Respondents 20, are subject to forfeiture. It is difficult to see how
such real property is necessarily in any sense `guilty' of an offense,
as could reasonably be argued of, for example, the distillery in
Dobbins's Distillery v. United States, 96 U. S. 395 (1878), or the
pirate vessel in Harmony v. United States, 2 How. 210 (1844).
Given that current practice under Section 881(a)(7) appears to be far
removed from the legal fiction upon which the civil forfeiture
doctrine is based, it may be necessary--in an appropriate case--to
reevaluate our generally deferential approach to legislative judgments
in this area of civil forfeiture." United States v. James Daniel Good
Real Property, 510 U. S. 43, 81-82 (1993) (opinion concurring in
part and dissenting in part) (footnotes omitted).
3 If anything, the Double Jeopardy Clause ought to apply to a
broader set of proceedings than the Self-Incrimination Clause. While
the latter applies only in a "criminal case," the former concerns any
type of "jeopardy," presumably a larger class of situations. See U.
S. Const., Amdt. 5.
4 The Court stated the full rule as follows: "Where a defendant
previously has sustained a criminal penalty and the civil penalty
sought in the subsequent proceeding bears no rational relation to the
goal of compensating the Government for its loss, but rather appears
to qualify as `punishment' in the plain meaning of the word, then the
defendant is entitled to an accounting of the Government's damages
and costs to determine if the penalty sought in fact constitutes a
second punishment." United States v. Halper, 490 U. S. 435, 449-
450 (1989).
5 Even if Austin had not followed Halper's rule for defining
punishment, it would make little sense to say that forfeiture might be
punishment "for the purposes of" the Excessive Fines Clause but not
the Double Jeopardy Clause. It is difficult to imagine why the
Framers of the two amendments would have required a particular
sanction not to be excessive, but would have allowed it to be
imposed multiple times for the same offense.
6 Specifically, the tax was conditioned on the commission of a crime,
511 U. S., at ___ (slip op., at 13), and it was levied on goods that
the taxpayer did not own or possess at the time of imposition, id., at
___ (slip op., at 15-16).
7 It is true, as the Court asserts, that a fine will only be considered
"excessive" if it is disproportionate to any remedial goal. But Austin
established that a forfeiture can also be excessive, although it could
serve multiple remedial goals. Hence, I do not understand why the
Court maintains that Austin did not prove that forfeitures are
punitive. In order to count as a "fine" in the first place, a forfeiture
must be capable of being punitive. A penalty that is not a "fine"
cannot violate the Excessive Fines Clause, no matter how
"excessive." See Browning-Ferris Industries of Vt., Inc. v. Kelco
Disposal, Inc., 492 U. S. 257 (1989).
8 See, e.g., Peisch v. Ware, 4 Cranch 347, 364 (1808) (Marshall,
C. J.) ("[T]he act punishes the owner with a forfeiture of the
goods"); J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.
S. 505, 510-511 (1921) (the owner of an automobile confiscated for
its use in transporting liquor during Prohibition is "`properly
punished by such forfeiture'") (quoting 1 W. Blackstone,
Commentaries *301).
9 Just this Term, we have reiterated this conclusion. See Libretti v.
United States, 516 U. S. ___, ___ (1995) (slip op., at 9-10) ("[T]he
in rem civil forfeiture authorized by 21 U. S. C. Sections 881(a)(4)
and (a)(7) is punitive in nature").
10 The Court also speculates that nuisance abatement may provide a
remedial interest. Ante, at 23. The abatement theory was
questionable enough in Bennis v. Michigan, 516 U. S. ___ (1996),
where under the State's theory the same acts might or might not turn
an ordinary automobile into a nuisance, depending on the
neighborhood in which the car happened to be parked. See id., at
___, n. 9 (slip op., at 7, n. 9) (STEVENS, J., dissenting). Here,
there is no argument that Ursery's home constituted some kind of a
nuisance.
11 Apparently recognizing the difficulty of reconciling its analysis of
Section 881(a)(7) with Austin's, the Court admits that the statute
"perhaps ha[s] certain punitive aspects," but finds them outweighed
by its "important nonpunitive goals." Ante, at 22. Again, that
approach simply repudiates Halper, which defined as punishment for
purposes of the Double Jeopardy Clause any sanction that "cannot
fairly be said solely to serve a remedial purpose." 490 U. S., at 448
(emphasis added).
12 "[A]lthough the owner of goods, sought to be forfeited by a
proceeding in rem, is not the nominal party, he is, nevertheless, the
substantial party to the suit; he certainly is so, after making claim and
defence; and, in a case like the present, he is entitled to all the
privileges which appertain to a person who is prosecuted for a
forfeiture of his property by reason of committing a criminal
offence." Boyd, 116 U. S., at 638.
13 The Court suggests that the decision in Emerald Cut Stones rested
on the fact that the second penalty was "in personam," ante, at 8, but
the opinion of the Court did not even mention that term. In 89
Firearms, the Court discussed the fact that the forfeiture was in rem,
but only for the rather obvious point that Congress intended the
proceeding to be "civil."
14 "That case, United States v. La Franca, 282 U. S. 568 (1931),
observed that the words `tax' and `penalty' `are not interchangeable,
one for the other' and that `if an exaction be clearly a penalty it cannot
be converted into a tax by the simple expedient of calling it such.'
Id., at 572. See also Lipke v. Lederer, 259 U. S. 557, 561 (1922)
(`The mere use of the word "tax" in an act primarily designed to
define and suppress crime is not enough to show that within the true
intendment of the term a tax was laid')." Department of Revenue of
Mont. v. Kurth Ranch, 511 U. S. ___, ___, n. 15 (slip op., at ___,
n. 15) (1994).
15 Long ago the Court cast doubt on this fiction:
"But where the owner of the property has been admitted as a
claimant, we cannot see the force of this distinction; nor can we
assent to the proposition that the proceeding is not, in effect, a
proceeding against the owner of the property, as well as against the
goods; for it is his breach of the laws which has to be proved to
establish the forfeiture, and it is his property which is sought to be
forfeited . . . . In the words of a great judge, `Goods, as goods,
cannot offend, forfeit, unlade, pay duties, or the like, but men whose
goods they are.'*
"*Vaughan, C. J., in Sheppard v. Gosnold, Vaugh. 159, 172,
approved by Ch. Baron Parker in Mitchell qui tam v. Torup, Parker,
227, 236." Boyd v. United States, 116 U. S. 616, 637, and n.
(1886).
16 As I have emphasized, the determination that 21 U. S. C. Section
881(a)(7) is a punitive statute is perfectly consistent with a
conclusion that other types of sanctions are remedial. For example, I
would expect that many types of administrative licensing sanctions
are remedial in the relevant sense of our cases. See Comment,
Administrative Driver's License Suspension: A Remedial Tool That
is Not in Jeopardy, 45 Am. U. L. Rev. 1151 (1996) (arguing that
suspension of a driver's license after conviction for drunk driving is
a remedial sanction under the logic of Halper, Austin, and Kurth
Ranch).
17 In Kurth Ranch we explicitly noted that the tax assessment and the
prosecution were "separate legal proceedings." 511 U. S., at ___,
(slip op., at 4).
18 According to the Rule, once there is a finding that property is
subject to a criminal forfeiture, the court may enter a preliminary
forfeiture order. The order also authorizes the Attorney General to
seize the property, conduct any necessary discovery, and begin
proceedings to protect the rights of third parties. The order of
forfeiture becomes a part of the sentence and is included in the
judgment.
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