Go directly to jail, do not pass go, do not keep house.

• Author: Costigan, Matthew
• Position: Supreme Court Review

1. INTRODUCTION

   In United States v. Ursery,(1) the Supreme Court reviewed two cases from the Sixth and Ninth Circuit Courts of Appeal. Both appellate courts held that the Double jeopardy Clause of the Fifth Amendment(2) prohibited the Government from both criminally punishing a defendant and forfeiting the defendant's property for the same offense in parallel, but separate, proceedings.(3) With one Justice dissenting,(4) the Court reversed both decisions, holding that civil forfeitures generally, and the forfeitures at issue in particular, do not constitute "punishment" for purposes of the Double jeopardy Clause.(5)

   According to the Supreme Court, the purpose of the Double jeopardy Clause is to protect against multiple punishments by prohibiting the Government from punishing, or attempting to punish, twice for the same offense.(6) While the Sixth and Ninth Circuits held that the civil forfeitures in the cases before them constituted "punishment" subject to double jeopardy prohibition, the Government challenged that characterization of the forfeitures.(7) This Note argues that the Court's ruling and agreement with the Government was not only a surprising result given the direction in which the Court has headed in recent years, but a regrettable one as well. While not a reversal of precedent, the Court abandoned the common sense path it had forged in three of its recent cases. The Court reverted to an old test for determination of whether the Double jeopardy Clause applies to civil forfeitures, and arguably reached the wrong result when applying that test. This Note concludes that the Court mistakenly passed on the opportunity to fashion a more just and meaningful test for deter mining when the Double jeopardy Clause should prohibit civil forfeitures.

   H. BACKGROUND

   The Fifth Amendment to the United States Constitution states in relevant part that "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb."(8) As the Supreme Court has stated, the Double jeopardy Clause protects against three abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.(9)

   The Federal Government has long been able to expropriate personal property used in the commission of crimes.(10) In today's world, civil forfeiture statutes provide law enforcement with a powerful tool against criminal activity,(11) and have been strongly employed in the war on drug use and dealing. For most of the Supreme Court's history, the Double jeopardy Clause applied only to "criminal" punishments.(12) In recent years, however, beginning with United States v. Halper,(13) the Court has shown a willingness to look beyond the "civil" label of a sanction to the underlying intent, thus throwing into uncertainty the traditional understanding that the Double jeopardy Clause does not apply to civil forfeitures.

   A. PRE-HALPER

   One of the early cases in which the Supreme Court considered the Double jeopardy Clause in the context of forfeiture of property was in In re Various Items of Personal Property.(14) In Various Items, the United States sought to forfeit the distillery, warehouse, and denaturing plant of a distilling corporation on the ground that the corporation violated [sections] 600(a) of the Revenue Act of 191815 by defrauding the government of taxes imposed on the spirits distilled on the premises.(16) The Court addressed the issue of whether a criminal conviction of a conspiracy to violate [sections] 600 (a) barred the forfeiture proceeding.(17) According to the Court, where the right of forfeiture is in rem and created by statute, it is the property that is primarily considered the offender, or, in other words, the offense attaches to the property.(18) By resort to a legal fiction, the proceeding is against the property, which is held guilty and condemned.(19) By contrast, in a criminal prosecution the proceeding is against the wrongdoer in personam.(20) The Court thus distinguished a proceeding in rem to forfeit property used to commit an offense from a civil action to recover taxes.(21) Because the latter is in fact a penalty and punitive in character, it is barred by a prior conviction of a defendant for a criminal offense involving the same transactions.(22) The Court held the forfeiture proceedings before it to be in rem, and thus not part of the punishment for the criminal offense.(23) Accordingly, the Court found inapplicable the double jeopardy provisions of the Fifth Amendment.(24)

   The Court did not address the double jeopardy implications of in rem civil forfeitures again for over forty years until One Lot Emerald Cut Stones v. United States.(25) In Emerald Cut Stones, the defendant entered the country without declaring to United States Customs contraband of one "lot" of emerald cut stones and one ring.(26) After acquittal on a criminal smuggling charge,(27) the United States government brought an action under both 18 U.S.C. [sections] 545 and 19 U.S.C. [sections] 1497(28) seeking forfeiture of the contraband.(29) Addressing the double jeopardy issue, the Court held that the Double jeopardy Clause did not bar the forfeiture because it constituted neither a second criminal trial nor a second criminal punishment.(30) Quoting from Helvering v. Mitchell,(31) the Court stated that "Congress may impose both a criminal and a civil sanction in respect to the same act or omission; for the double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense."(32) According to the Court, the question of whether a given sanction is civil or criminal is one of statutory construction.(33) The Court characterized forfeitures under [sections] 1497 as remedial rather than punitive sanctions, for they prevented forbidden merchandise from circulating in the country and provided a reasonable form of reimbursing the Government for investigation and enforcement expenses.(34) Thus, the Court determined that forfeiture of the emeralds was a civil sanction and not so unreasonable or excessive as to transform its clear civil intent into a criminal penalty.(35) Given the civil and remedial nature of the forfeiture, the Court declared that it was not barred by the criminal acquittal.(36)

   A little more than a decade after Emerald Cut Stones, the Court decided United States v. One Assortment of 89 Firearms.(37) The issue in 89 Firearms was whether a gun owner's acquittal on criminal firearms charges precluded a subsequent in rem forfeiture proceeding against those firearms.(38) Following acquittal for dealing in firearms without a license, the defendant in 89 Firearms faced forfeiture, pursuant to 18 U.S.C. [sections] 924(d),(39) of the seized firearms.(40) As an initial matter, the Court stated that under Mitchell, at the very least, an acquittal of a criminal charge did not automatically bar forfeiture of goods involved in the alleged criminal activity, or other civil penalties.(41) Turning to the applicability of the Double jeopardy Clause, the Court stated that unless Congress intended the forfeiture statute as punishment, or by its nature the statute necessarily was punitive, so that the proceeding was essentially criminal in character, the prohibition did not apply.(42)

   The Court reiterated that a civil or criminal determination begins as a matter of statutory interpretation.(43) Citing United States v. Ward,(44) the Court noted that this determination has two levels.(45) The first level involves an inquiry into whether Congress indicated either expressly or impliedly a preference for a criminal or a civil label in establishing the statutory penalty.(46) If the intent was for a criminal sanction, the inquiry need go no further, because a second prosecution would clearly violate the Double jeopardy Clause.(47) Where Congress has indicated an intention to establish a civil penalty, however, the second level asks whether the statutory scheme is so punitive either in purpose or effect as to negate that intention.(48)

   After a determination that Congress designed [sections] 924(d) as a remedial civil sanction, the 89 Firearms Court turned to the second prong of the Ward test.(49) In so doing, the Court examined a list of considerations established in Kennedy v. Mendoza-Martinez(50) to aid in determining whether the statute's purpose or effect negated [sections] 924(d)'s civil intent.(51) The Court found that only one factor--the fact that the proscribed behavior was already a crime--lent any support to the view that the statute imposed a criminal penalty.(52) This slight overlap of criminal and civil characteristics, however, failed to persuade the Court that a clearly designed civil remedy had been transformed into a criminal penalty.(53) The Court thus concluded that the Double jeopardy Clause did not bar the non-criminal forfeiture.(54)

   B. HALPER AND BEYOND

   Beginning with United States v. Halper,(55) the Court decided a trio of cases that indicated a shift in its application of the Double jeopardy Clause. In Halper, the Court considered whether, and under what circumstances, a civil penalty might constitute punishment for purposes of double jeopardy analysis.(56) Halper, as a manager of a medical service provider, submitted sixty-five false claims for Medicare reimbursement that cost the Government a total of $585.(57) When the Government became aware of Halper's scheme, it tried and convicted him on sixty-five counts of violating a false-claims statute(58) and sixteen counts of mail fraud.(59) After conviction, the Government brought a claim under the civil False Claims Act,(60) for which Halper was liable for $2,000 per false claim, a civil penalty totaling $130,000.(61)

   According to the Halper Court, a recovery of civil penalties under the False Claims Act does not rise to the level of punishment simply because the recovery exceeds the...