United States v. Ursery: the Long Arm of the Law Gets Reattached - Brian C. Max

• Citation: Vol. 48 No. 3
• Publication year: 1997

United States v, Ursery: The Long Arm of the Law Gets Reattached

In United States v. Ursery,¹ the United States Supreme Court evaluated the constitutionality of in rem civil forfeitures when they are used with criminal proceedings in relation to a single act. Ursery was a consolidation of two cases, United States v. Ursery² and United States v. $405,089.23 United States Currency,³ from the Sixth and Ninth Circuit Courts of Appeals, respectively.

I. Facts

In Ursery, the Michigan State Police found an illegal narcotics-growing operation adjacent to the home of the respondent, Guy Ursery.⁴ The United States instituted a civil forfeiture proceeding under 21 U.S.C. Sec. 881(a)(7)⁵ against Ursery's home in federal district court.⁶ The government contended that the home had been used for several years to traffic narcotics.⁷ Ursery agreed to pay the United States $13,250 to settle the forfeiture claim.⁸ Before the claim was paid, however, Ursery was indicted and convicted on narcotics manufacturing violations.⁹ Ursery appealed to the Sixth Circuit Court of Appeals on the grounds that his conviction violated his constitutional right under the Double Jeopardy Clause of the Fifth Amendment.¹⁰ 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."¹¹ Ursery contended that the conviction constituted a second punishment for purposes of double jeopardy.¹² The court of appeals, in a divided vote, agreed and reversed Ursery's criminal conviction.¹³

In $405,089.23 United States Currency, the government filed an in rem proceeding in district court against currency the government believed had been gained through the laundering of drug profits.¹⁴ Wesley Arlt and James Wren possessed the currency when it was seized by the government.¹⁵ Arlt and Wren were convicted on drug distribution and money laundering charges after the in rem suit was filed, but before it was litigated.¹⁶ The district court cited 18 U.S.C. Sec. 981(a)(1)(A)¹⁷ and granted summary judgment for the government in the in rem proceeding after the criminal conviction.¹⁸ The Ninth Circuit reversed the decision on the grounds that it violated the Double Jeopardy Clause of the Fifth Amendment.¹⁹

The Sixth Circuit and the Ninth Circuit used similar reasoning in reaching their decisions in Ursery and $405,089.23 United States Currency.²⁰ The circuits relied on the holdings of United States v. Halper²¹ and Austin v. United States,²² two recent Supreme Court decisions dealing with the issue of double jeopardy and civil forfeitures. The appellate courts in Ursery and 405,089.23 United States Currency interpreted Halper and Austin as categorically making civil forfeitures punishment and thus, unconstitutional when used in conjunction with criminal prosecutions.²³ The Supreme Court granted the government's petition for certiorari in Ursery and $405,089.23 United States Currency and reversed the appellate courts.²⁴ The Supreme Court stated, "[tjhese civil forfeitures (and civil forfeitures generally), we hold, do not constitute 'punishment' for purposes of the Double Jeopardy Clause."²⁵

II. Legal Background

Civil forfeiture in the United States historically has been one of the most potent weapons available to prosecutors.²⁶ Civil forfeiture, however, originally began in English common law.²⁷ English common law recognized three types of civil forfeiture.²⁸ The first type of forfeiture was called deodand forfeiture.²⁹ Deodand forfeiture required any object that caused the death of a king's subject to be forfeited to the crown.³⁰ Deodand forfeitures were often justified as a penalty for carelessness.³¹ The second type of civil forfeiture in English common law was property seizure of individuals convicted of a felony or of treason.³² The justification for this forfeiture was that a criminal act equaled a breach of the king's peace and the perpetrator should be denied property ownership.³³ The third type of forfeiture employed in English common law was created by statutes and generally used to seize objects that were in violation of customs and revenue laws.³⁴ These statutory forfeitures used the in rem fiction to seize the property.³⁵

Deodand forfeitures did not become part of common law in the United States.³⁶ For the most part, forfeiture for felony convictions did not either.³⁷ However, in the United States, if convicted, treason still carries the penalty of property forfeiture for life.³⁸ Statutory forfeitures have been extensively adopted in the United States.³⁹ The earliest forfeiture laws in the United States came shortly after the ratification of the Constitution in 1789.⁴⁰ These acts dealt primarily with forfeiture of ships and cargo that were in violation of customs laws.⁴¹ The federal government, in time, did not limit these forfeiture statutes to customs violations. Today, "forfeiture statutes reach virtually any type of property that might be used in the conduct of criminal enterprise."⁴²

Many Supreme Court cases have reinforced the legality of civil forfeitures. In one of the earliest cases, an 1827 decision, The Pal-myra,⁴³ the Supreme Court held in rem forfeitures constitutional even if the defendant was prosecuted on criminal charges for the same act.⁴⁴ In the opinion, Justice Story stated, "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."⁴⁵ Justice Story reinforced the theory that in rem proceedings are directed against a thing, and therefore no punishment is directed toward an individual.⁴⁶ In 1877, the Supreme Court again had an opportunity to rule on civil forfeitures in Dobbins's Distillery v. United States.⁴⁷ In Dobbins's Distillery, the Court found constitutional the forfeiture of a building used to illegally produce alcohol, even though the owner had no knowledge of the activity.⁴⁸ Early in this century, the Supreme Court revisited the issue of in rem civil forfeitures in Various Items of Personal Property v. United States.⁴⁹ The Court upheld a revenue statute that provided for civil forfeiture and stated that during in rem proceedings, "[t]he provision of the Fifth Amendment to the Constitution in respect of double jeopardy does not apply."⁵⁰ Many other Supreme Court decisions reaffirmed this general principle.⁵¹

In 1970, Congress began to expand the use of forfeitures with the Comprehensive Drug Abuse Prevention and Control Act.⁵² This statute provides for the forfeiture of the illegal narcotic, production and distribution equipment, and any records involved.⁵³ Congress again expanded the forfeiture laws in 1984 by enacting the Comprehensive Forfeiture Act ("CFA").⁵⁴ The CPA provided the first congressional authorization for the forfeiture of real property used in narcotics violations.⁵⁵ Most drug related forfeitures are pursued under 21 U.S.C. Sec. 881(a)(4),(6), and (7).⁵⁶ Finally, Congress passed the Money Laun-dering Control Act of 1986 which authorized civil forfeiture of any property involved in money laundering schemes.⁵⁷

The Supreme Court did not stand by idly as Congress expanded the forfeiture laws.⁵⁸ In 1972 and 1984, the Court reaffirmed that civil forfeitures did not violate the Double Jeopardy Clause in One Lot Emerald Cut Stones v. United States⁵⁹ and United States v. One Assortment of 89 Firearms.⁶⁰ In One Lot Emerald Cut Stones, the Court stated, "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."⁶¹ The Court went on to say, however, that in some instances a forfeiture could be criminal if it was not remedial in nature.⁶² Similarly, in One Assortment of 89 Firearms, the Court ruled that a forfeiture proceeding was not a violation of the Double Jeopardy Clause even if accompanied by a criminal trial, but added, "[t]he question, then, is whether a . . . forfeiture proceeding is intended to be, or by its nature necessarily is, criminal and punitive, or civil and remedial."⁶³ The Court laid out a two-step process to determine if a forfeiture was civil or criminal.⁶⁴ The first step determines whether Congress intended the law to be criminal or civil.⁶⁵ The second step looks at the forfeiture itself to see, regardless of congressio-nal intent, whether the statute was so punitive as to reach the level of punishment.⁶⁶ If the forfeiture passes these two levels of analysis, it is civil in nature and the Double Jeopardy Clause does not apply.⁶⁷

In 1989, the Court did rule a civil forfeiture proceeding as punishment under the Double Jeopardy Clause in United States v. Halper.⁶⁸ The Court found the statutory forfeiture scheme to be not remedial or compensatory, but punitive.⁶⁹ Although the forfeiture was labeled nonpunitive, it functioned as punishment for purposes of double jeopardy.⁷⁰ It was punishment because the civil liability was measured at $130,000, even though actual government expense was no more than $16,000.⁷¹ Moreover, because the civil liabilities were calculated at a set fine of $2000 per offense, this was a fine structure that was more punitive than remedial in nature.⁷² Three years later in Austin, the Court ruled that the Excessive Fines Clause of the Eighth Amend-ment⁷³ applied to civil forfeitures under 21 U.S.C. Sec. 881(a)(4) and (7).⁷⁴ Although not dealing directly with the Fifth Amendment, the Austin decision raised the question of whether all civil forfeitures should be considered punishment under the same analysis.⁷⁵ As a result of Halper, Austin, and Department of Revenue v. Kurth Ranch⁷⁶ many different views emerged from the various courts of appeals.⁷⁷ and it was not until United States v. Ursery⁷⁸ on June 24, 1996 that the diversity was resolved.

III. Rationale of the Court

In Ursery, Chief Justice...