Double Jeopardy-civil Forfeitures and Criminal Punishment: Who Determines What Punishments Fit the Crime

• Publication year: 1995

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 19, No. 2WINTER 1996

Double Jeopardy-Civil Forfeitures and Criminal Punishment: Who Determines What Punishments Fit the Crime

Barbara A. Mack(fn*)

I. Introduction

The Double Jeopardy Clause of the Fifth Amendment provides, "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb."(fn1) What does this clause mean? Where did it come from? Was the double jeopardy concept "such an integral part of the common law that many of the first state declarations of rights omitted any mention of it on the theory that it required no further confirmation,"(fn2) or was it "not so fundamental a privilege" in English law?(fn3) Legal historians disagree. Was the Double Jeopardy Clause designed to promote the interests of finality;(fn4) to prevent harassment of defendants;(fn5) to limit the discretion of prosecutors,(fn6) of legislatures,(fn7) or of judges;(fn8) to save "the public and defendant the cost of redundant litigation;"(fn9) or to equalize "the adversary capabilities of grossly unequal litigants"?(fn10) Was it meant to protect against multiple prosecutions only,(fn11) or against multiple punishments as well?(fn12) Was it designed to protect against criminal jeopardy only, or also against civil sanctions?(fn13) The commentators disagree.

What the commentators do agree on is that double jeopardy is a realm of law so confusing, so replete with contradictions, corrections, and exceptions to the rules, that after 120 years no sensible meaning or policy has evolved. In 1965, the "fictions and rationalizations" that complicated double jeopardy law were described as the "characteristic signs of doctrinal senility."(fn14) The situation since has only worsened, with Supreme Court justices shifting positions even on fundamental aspects of the law.(fn15) These shifts have opened up entirely new areas of double jeopardy interpretation with respect to parallel civil and criminal proceedings.

This Article will attempt to distill from this confusion a meaningful double jeopardy policy, applicable to parallel civil and criminal proceedings, that takes into account the history of double jeopardy, recent changes in statutory law, and the contemporary chaotic state of parallel civil and criminal proceedings.

Under current law, double jeopardy protects against three abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.(fn16)

This Article will show that the multiple punishments prong has little basis in law, other than reliance on dicta that have been repeated a multitude of times. Examining the history and case law leads this author to conclude that double jeopardy was intended to prevent overzealous prosecution, not to curtail the authority of legislatures to determine which punishments fit the crime. This means that double jeopardy applies to multiple prosecutions, but not to multiple punishments. Government overreaching via multiple punishments is more directly and more logically controlled by applying the Eighth Amendment Excessive Fines Clause.

If the courts persist in including double punishment within double jeopardy, then they must define punishment. Forfeiture of proceeds of crimes should never be deemed punishment, nor should penalties or forfeitures that roughly compensate the government for its costs of investigation and prosecution.

Moreover, if the courts continue to include double punishment, they must determine what the "same offense" means in the context of parallel criminal and civil proceedings. This Article contends that to use a more lenient standard in the civil-criminal context than in purely criminal cases would elevate property interests above liberty interests.

Section II of this Article will look first at the historical underpinnings of the Double Jeopardy Clause and its constitutional development. It will then discuss the development of double jeopardy analysis in early criminal cases and in early parallel criminal and civil proceedings. Section III will examine judicial analyses of what constitutes the same offense for double jeopardy purposes, and Section IV will address the definition of punishment in the civil context. Section V will analyze whether the Double Jeopardy Clause inhibits the Legislature's ability to determine what punishments fit the crime, focusing on the Court's deference to legislative intent. Finally, Section VI will discuss the cases since 1989-United States v. Halper,(fn17) Austin v. United States,(fn18) and Department of Revenue of Montana v. Kurth Ranch(fn19)-and their ramifications.

II. Historical Double Jeopardy Analysis

A. The Origins and Early History of Double Jeopardy

No early English statutory law mentions double jeopardy.(fn20) Although the Magna Carta contains the early form of other rights that subsequently appeared in the United States Constitution, it does not mention any former jeopardy rights.(fn21) Similarly, the English Bill of Rights of 1689 contains many antecedents of our Constitution,(fn22) but it makes no mention of any kind of double jeopardy protection.(fn23) Thus the statutory roots of double jeopardy are unclear.

However, in the seventeenth and eighteenth centuries, Lords Coke and Blackstone clarified the concept in their works describing the common law of England,(fn24) including the pleas in bar of autrefois acquit and autrefois convict.(fn25) Under these pleas, if a person was previously acquitted or previously convicted of a crime, the person could not be tried again for the same offense. Historically, these pleas only applied to criminal cases;(fn26) and the word "jeopardy" only applied to prior verdicts of guilt or acquittal.(fn27) The pleas in bar of autrefois acquit and autrefois convict have developed into two of the three prongs of modern double jeopardy analysis.(fn28) If we look solely at preconstitutional history, it follows that double jeopardy should only apply in the criminal context.

B. The Constitution

In America, the colony of Massachusetts was the first to codify double jeopardy, applying it not only to all kinds of criminal cases, but to civil cases as well.(fn29) Other colonies adopted Massachusetts' version of the doctrine,(fn30) but this broad double jeopardy protection was short-lived. After the American Revolution, most of the states did not incorporate double jeopardy, in any form, into their constitutions.(fn31) New Hampshire was the first state to adopt a Bill of Rights containing a double jeopardy provision: "No subject shall be liable to be tried, after an acquittal, for the same crime or offence."(fn32) New Hampshire's protection, limited to former acquittals, was narrower than that available in colonial Massachusetts.(fn33)

The historical development of the Double Jeopardy Clause also supports the thesis that double jeopardy applies only in the criminal context and only to multiple prosecutions, not multiple punishments. James Madison led the effort to add a bill of rights to the Constitution. On June 8, 1789, during the first session of the new Congress of the United States, Madison proposed amendments to the Constitution, including a bill of rights.(fn34) His original draft of the double jeopardy provision stated that "[n]o person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense."(fn35) The House of Representatives adopted this language and sent it to the Senate. The Senate, however, changed the language to read: No person shall "be twice put in jeopardy of life or limb by any public prosecution,"(fn36) then to "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb."(fn37)

The new wording of the Double Jeopardy Clause was different from all of the prior statutes, including colonial codes and state constitutions. Its meaning was unclear then, as it is today. Originally, "jeopardy of life" was based on the fact that most criminal penalties were capital, and by the eighteenth century, double jeopardy applied primarily to capital crimes.(fn38)

C. Constitutional Interpretation: The Early Cases

1. Ex Parte Lange

After Congress adopted and the states ratified this constitutional right, 120 years of judicial interpretation began. Although it was clear that double jeopardy had previously applied to second prosecutions for the same offense following acquittals or convictions,(fn39) after Ex parte Lange(fn40) courts began to hold that the Double Jeopardy Clause protects not only against multiple prosecutions, but also against multiple punishments for the same offense.(fn41)

In Lange, the defendant was convicted for stealing United States mail bags. The law authorized a fine or imprisonment, but not both. The judge, however, imposed both a prison sentence and a two hundred dollar fine. Lange went to jail and paid the fine. Shortly thereafter, the first judgment was vacated and a new sentence imposed, this time for prison alone.(fn42)

After considering these facts, the Court held that vacating the judgment and imposing a different sentence constituted double punishment for the same offense because (1) Lange had paid the fine, which went into the Treasury and beyond the control of the Court, and (2) Lange had served five days...