Salvaging Civil Forfeiture Under the Drug Abuse and Control ACT

Table of Contents
  1. Introduction
  2. Background
    1. In Rem Nature of the Civil Forfeiture Action B. History of the Civil Forfeiture Action
    2. History of the Civil Forfeiture Action
  3. Application of Civil Asset Forfeiture Under the Drug Control Act
  4. Double Jeopardy Problems of Civil Forfeiture
    1. Background of Double Jeopardy
    2. Erosion of Civil Forfeiture Jurisprudence
    3. The Aftermath
    4. A Few Lessons on Civil Forfeiture Under the Drug Control Act After Halper, Austin, and Kurth Ranch
  5. The Supreme Court's Misguided Approach
    1. The Eighth Amendment Avenue
    2. The Problem of Proportionality in Civil Sanctions Other Than Civil Forfeitures
    3. The Problem of Proportionality in Civil Forfeitures
  6. Conclusion
I. Introduction

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that "[n]o person shall ... be *1610 subject for the same offence to be twice put in jeopardy of life or limb." [FN1] The United States Supreme Court has interpreted this Clause to include a prohibition against multiple punishments for the same offense. [FN2] The punishment component of the Double Jeopardy Clause, in turn, has been interpreted to protect individuals from being subjected to multiple punishments for the same offense in the same criminal proceeding in excess of what is legislatively allowed. [FN3] It has also been interpreted to prevent the imposition of multiple punishments in successive criminal proceedings for a single crime even if such punishments are legislatively allowed. [FN4]

Historically, the punishment protection of the Double Jeopardy Clause has been applicable to criminal proceedings only. However, in United States v. Halper, [FN5] an unprecedented 1989 opinion, the United States Supreme Court held that government-imposed civil sanctions could constitute criminal punishment within the meaning of the Double Jeopardy Clause. [FN6] A few years later, in Austin v. United States [FN7] and in department of Revenue of Montana v. Kurth Ranch, [FN8] respectively, the Court expanded the Halper holding by applying it to civil forfeitures under the Comprehensive Drug *1611 Abuse Prevention and Control Act of 1970 (Drug Control Act) [FN9] and to civil sanctions in the form of taxes. [FN10] Recognized by the first Congress of the United States and before, [FN11] government-imposed civil sanctions, such as forfeitures, injunctions, fines, and restitution, have always played a prevalent and significant role in the enforcement of the nation's laws. [FN12] The system of civil sanctions has been particularly instrumental in the enforcement of the nation's criminal laws. Civil sanctions have provided the government with a method, independent of, and less burdensome than, traditional criminal proceedings by which to deprive criminals of the fruits of their illegal activities.

Nowhere have civil sanctions found more intense use than in the nation's enforcement of its drug laws. [FN13] The importance of civil forfeiture in the enforcement of drug laws is due, in part, to the in rem nature of civil forfeiture proceedings. In rem proceedings allow the government to institute civil forfeiture proceedings against property as an entity and obtain the forfeiture of such property without regard to the owner's guilt or innocence of the underlying drug offense.

The ability to divorce property from its record owner for the purpose of a forfeiture action is important for numerous reasons. First, it allows the government to obtain title to property that has been parceled out among a wrongdoer's relatives and friends in an effort to insulate it from the government. It also provides an avenue for the government to obtain illegally derived or used property in *1612 cases in which the government decides to forego criminal prosecution. Finally, it enables the government to pursue illegally used or obtained assets when the record owner of the assets has left a jurisdiction or when a criminal action against a wrongdoer is unsuccessful due to the higher burden of proof that is attendant to criminal prosecutions. [FN14] However, because civil forfeiture proceedings are independent of core criminal proceedings, the Supreme Court's pronouncement that civil sanctions can constitute punishment within the meaning of the Double Jeopardy Clause creates a significant risk that civil forfeiture proceedings will operate as a bar to underlying criminal prosecutions. [FN15] consequently, the existence of such a risk has had a tremendous impact on the government's ability and willingness to pursue civil forfeiture remedies. [FN16]

The purpose of this Article is to demonstrate that the trio of *1613 Supreme Court decisions on Double Jeopardy have unwisely and unnecessarily turned the civil sanction system on its head, particularly as it relates to the civil forfeiture provisions of the Drug Control Act. [FN17] The Article is organized in five parts. Part I provides background concerning the development of forfeiture as a civil sanction remedy. It focuses on the in rem nature of the action and provides a brief historical account of the origins of the remedy and its adoption in this country. Part II introduces the concept of civil asset forfeiture under the Drug Control Act, the central piece of legislation in the area of federal drug enforcement. Part II also provides a detailed account of the proceedings and burdens incident to civil forfeiture. Part III addresses the principle of Double Jeopardy. It also discusses the three Supreme Court opinions to which the emerging Double Jeopardy jurisprudence is owed, Halper, Austin, and Kurth Ranch, and samples subsequent lower court decisions on the subject. Part IV discusses the Court's preoccupation with the concept of "proportionality" in punishment as the preeminent factor underlying the Court's emerging and unwarranted Double Jeopardy jurisprudence. Part IV also advocates the use of the Eighth Amendment's Excessive Fines Clause in dealing with such proportionality concerns, and defends the viability of traditional in rem theory in the area of modern civil forfeiture law. Finally, Part V provides a summary of the major issues and conclusions that have been advanced throughout the Article.


[FNd1]. Law Clerk to the Honorable Julian Abele Cook, Jr., Chief Judge, United States District Court, Eastern District of Michigan. B.A., 1990, summa cum laude, Florida International University; J.D., 1993, cum laude, University of Michigan.

The author expresses her gratitude and appreciation to Mark E. Crane and Renee C. Pruitt for their valuable comments and support.

[FN1]. U.S. Const. amend. V.

[FN2]. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). In addition, the Double Jeopardy Clause has been interpreted to prohibit multiple prosecutions for the same offense. See infra notes 96-102 and accompanying text.

[FN3]. See, e.g., Whalen v. United States, 445 U.S. 684, 697 (1980) ("The only function the Double Jeopardy Clause serves in cases challenging multiple punishments is to prevent the prosecutor from bringing more charges, and the sentencing court from imposing greater punishments, than the Legislative Branch intended.").

[FN4]. See Brown v. Ohio, 432 U.S. 161, 165 (1977) ("[T]he Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.").

[FN5]. 490 U.S. 435 (1989).

[FN6]. Id. at 446-49.

[FN7]. 113 S. Ct. 2801 (1993).

[FN8]. 114 S. Ct. 1937 (1994).

[FN9]. 21 U.S.C.A. s 881 (West 1981 & Supp. 1995); Austin, 113 S. Ct. at 2803, 2810-12.

[FN10]. Kurth Ranch, 114 S.Ct. at 1943-44.

[FN11]. See infra notes 31-52 and accompanying text.

[FN12]. See infra notes 42-52 and accompanying text; see also 15 U.S.C.A. s 11 (West 1973) (providing for the forfeiture of property acquired in violation of anti-trust laws); 15 U.S.C.A. s 1177 (West 1982) (allowing the forfeiture of property used in illegal gambling); 16 U.S.C.A. ss 65, 117d, 128, 171, 256 (West 1992) (authorizing the forfeiture of guns and other equipment used unlawfully in national parks and private hunting grounds); 18 U.S.C.A. s 3668(d) (West 1985) (authorizing the forfeiture of vehicles and aircraft seized for violation of liquor laws).

[FN13]. See Drug Control Act, 21 U.S.C.A. s 881 (West 1981 & Supp. 1995).

[FN14]. The inability to convict a defendant does not always translate into the actual innocence of that defendant. It simply means that the government was not able to prove the defendant's guilt beyond a reasonable doubt. Thus, while the government may not always be able to convict a person who has been engaged in illegal drug activity, it should still be able to pursue the forfeiture of that person's property, and remove the profit incentive from that person's crime, if it has probable cause to believe that the property was used in connection with, or derived from, drug activity. See infra note 75 and accompanying text.

Importantly, under the Drug Control Act, innocent property owners have an opportunity to demonstrate that the government is incorrect in its belief that the property is forfeitable by reason of its use or origin, by simply demonstrating, by a preponderance of the evidence, any number of defenses. For example, an innocent property owner can demonstrate that he is gainfully employed and, thus, that his property was acquired with legal funds. See 21 U.S.C.A. s 881(a) (West 1981 & Supp. 1995).

[FN15]. In United States v. 167 Woodland Rd., No. Civ.A.94-10851-RW2, 1994 WL 707129 (D. Mass. Dec. 2, 1994), for example, a suspected drug trafficker proposed a judgment in a civil forfeiture action that gave the government everything it sought in the civil proceeding in order to trigger the protections of the Double Jeopardy Clause and preclude a subsequent criminal prosecution. The government argued against the entry of the judgment, but the court ruled for the claimant on the ground that there was no longer a justiciable case or controversy. Id. at *4.

[FN16]. Id. at *3.

[FN17]. The nation's civil forfeiture system is far from perfect. Indeed, the Halper opinion came as a much expected reaction to the "disproportionate" results that sometimes came about as a result of the government's exercise of its civil forfeiture powers. The civil forfeiture provisions of the Drug Control Act have been particularly criticized for allowing the forfeiture of property in cases in which the connection between the illegal drug activity and the property, or the illegal drug activity and the owner of the property, is too tenuous to warrant forfeiture. See, e.g., United States v. One 1976 Porsche, 670 F.2d 810 (9th Cir. 1979) (upholding forfeiture of sports car in which 0.226 grams of marijuana were found).