The Double Jeopardy Implications of in Rem Forfeiture of Crime-related Property: the Gradual Realization of a Constitutional Violation

JurisdictionUnited States,Federal
CitationVol. 19 No. 02
Publication year1995


The Double Jeopardy Implications of In Rem Forfeiture of Crime-Related Property: The Gradual Realization of a Constitutional Violation

Andrew L. Subin(fn*)

I. Introduction

Over the past decade, the government has escalated its "war on drugs." Although the "war" has not decreased drug use or limited the availability of drugs on the street, the government continues to sacrifice the constitutional rights of its citizens in an effort to escalate the hostility. Since the "zero tolerance" policy of the Reagan Administration, the government has relied heavily on the forfeiture of property related to drug crimes as a tool to deter and punish the illegal distribution of drugs. The federal forfeiture statute, 21 U.S.C. § 881, allows the government to seize any property used to facilitate a drug offense.(fn1) Such property may include the real property where a drug deal takes place or vehicles used to travel to a location where a deal is consummated.(fn2)

Because the forfeiture statute is classified as "civil," rather than "criminal," the government need not prove its case beyond a reasonable doubt.(fn3) Rather, it need only demonstrate probable cause to believe the property was connected to a drug offense to shift the burden of demonstrating innocence to the property owner.(fn4) In the forfeiture action, the property owner is not entitled to a court appointed attorney,(fn5) and it is unclear whether she has the right to a jury.(fn6) Further, because such forfeitures are tied to the commission of a crime, the property owner is often incarcerated while the forfeiture action is pending. Thus, he must often choose between spending limited resources on defending the criminal action and attempting to save his property.

Civil forfeiture and criminal prosecution have been called "double-edged weapons," and until very recently, the government could wield these weapons "with virtual impunity."(fn7) As one writer commented, before the relatively recent recognition of the constitutional problems engendered by parallel civil forfeiture and criminal prosecution based upon the same conduct, [u]nrestrained prosecutors began to act like children without adult supervision, using these "nuclear weapons" in tandem to impoverish and then incarcerate defendants in record numbers, and with draconian sentences. . . .

. . . .

It was like shooting fish in a barrel for prosecutors. Sometimes they would pursue civil forfeiture first under the lesser standard of proof required in a civil action and then seek conviction in a subsequent proceeding. This gave them a "dry run" at the trial, and put the defendant at a serious disadvantage, having to fight two fronts at once.(fn8)

Over the past several years, however, a number of appellate decisions have dramatically blunted these double-edged weapons.(fn9)

These decisions include a trio of Supreme Court cases: United States v. Halper,(fn10) Austin v. United States,(fn11) and Department of Revenue of Montana v. Kurth Ranch(fn12) These cases lead to the inescapable conclusion that the civil forfeiture of crime-related property is punitive and such forfeitures can often violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.(fn13)

Despite the clear message of these Supreme Court cases, several lower federal courts and many state appellate courts have been reluctant to give meaningful effect to this newly understood constitutional protection. This Article will explain why parallel civil forfeiture and criminal prosecution, when based upon the same criminal conduct, violate the guarantee against double jeopardy. Further, it will explore how courts that have avoided this conclusion have misread and misapplied controlling precedent.

In their efforts to avoid granting relief to a culpable defendant when confronted with a clear violation of the prohibition against double jeopardy, many courts have relied on twisted reasoning or absurd legal fictions in the face of contrary Supreme Court precedent. As late as 1993, the argument that the government could not punish a person with incarceration and also forfeit his or her property without running afoul of the Double Jeopardy Clause was met with scorn, and attorneys making this argument were occasionally ridiculed.(fn14)

Perhaps because of the persistent reluctance of the lower courts to give meaningful effect to the prohibition against double jeopardy, the Supreme Court has addressed the forfeiture-punishment issue repeatedly in recent years, making it clear that the double jeopardy concerns created by parallel civil forfeiture and criminal prosecution must be taken seriously.

In 1994, many appellate courts began to give effect to these Supreme Court pronouncements and to dismiss criminal cases or return forfeited property to remedy apparent violations. Although the realization of the constitutional dilemma has been gradual, it is undeniable. As illustrated below, those courts that have refused to recognize the double jeopardy dilemma have been able to do so only by ignoring relevant precedent, as well as common sense.

II. The Guarantee Against Double Jeopardy

The Fifth Amendment to the United States Constitution provides that no person "shall . . . be subject for the same offense to be twice put in jeopardy of life or limb."(fn15) This guarantee against double jeopardy is "one of the oldest ideas found in western civilization,"(fn16) and is considered "fundamental" to the Anglo-American system of justice.(fn17) The Double Jeopardy Clause applies to the states through the Due Process Clause of the Fourteenth Amendment.(fn18)

The guarantee against double jeopardy protects individuals from three distinct 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.(fn19) In the context of civil forfeitures, the third protection is of paramount concern: protection from multiple punishments for the same offense.(fn20)


Many courts have recognized that civil forfeitures arising from criminal conduct present serious double jeopardy concerns.(fn21) In addressing the double jeopardy implications of these crime-related forfeitures, one must ask three primary questions: (1) Do both the criminal conviction and the forfeiture of crime-related property constitute "punishment"?; (2) Were the two punishments imposed for the "same offense"?; and (3) Were the two punishments imposed in "separate proceedings"?(fn22) Relying primarily on the Halper-Austin-Kurth Ranch rule that civil forfeitures are punitive,(fn23) many courts have answered these questions in the affirmative.(fn24) Other courts, demonstrating a profound (and occasionally profane) reluctance to dismiss criminal convictions or overturn large forfeiture judgments where guilt has been proven or conceded, have found various ways to avoid granting the relief required under a fair reading of the Supreme Court precedents.(fn25) If the Halper-Austin-Kurth Ranch rule is given full effect, it is apparent that (1) the forfeiture of crime-related property is punitive;(fn26) (2) in many cases, the forfeiture and the criminal prosecution are based on the same offense;(fn27) and (3) the civil forfeiture action and the criminal prosecution are separate proceedings.(fn28) As a result, the Double Jeopardy Clause prohibits imposition of both civil forfeiture and criminal conviction.(fn29)

A. Is the Forfeiture of Crime-Related Property "Punitive" for Purposes of the Double Jeopardy Clause?

1. General Considerations

In United States v. Halper,(fn30) the Supreme Court held that a civil penalty imposed by the government can constitute "punishment" for purposes of double jeopardy analysis.(fn31) Halper was convicted of sixty-five counts of violating the criminal False Claims Act(fn32) for filing sixty-five fraudulent claims for Medicare reimbursement.(fn33) He was sentenced to two years in prison and fined $5,000.(fn34) Following Halper's conviction, the Government brought an action under the civil False Claims Act,(fn35) seeking a $2,000 civil penalty for each of the sixty-five separate violations.(fn36) The district court concluded "that in light of Halper's previous criminal punishment," a civil penalty of $130,000 would violate the Double Jeopardy Clause because the penalty was "entirely unrelated" and bore "no rational relation" to the actual damages suffered or expenses incurred by the Government.(fn37) Accordingly, the district court held that the fine was a second punishment for the same offense,(fn38) declared the civil False Claims Act unconstitutional as applied to Halper,(fn39) and limited the Government's recovery to $1,170, the amount of actual damages.(fn40)

On direct appeal, the Supreme Court agreed with the district court that a civil sanction imposed by the government can constitute punishment for purposes of double jeopardy analysis.(fn41) In so holding, the Court rejected the notion that a sanction is not punitive merely because it is imposed in a civil rather than a criminal proceeding. Noting that "the labels 'criminal' and 'civil' are not of paramount importance,"(fn42) the Court found that the determination of whether a given civil...

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