VI. Conclusion

The Supreme Court has concluded that the multiple punishment prong of the Double Jeopardy Clause can be violated by the assessment of a civil sanction if that civil sanction arises under a statute that is punitive or is disproportional to the government's costs. [FN197] The civil sanction can be in the form of a *1655 fine, forfeiture, or tax, among others.

The Supreme Court has further announced that a statute is punitive within the meaning of the Double Jeopardy Clause if it advances either the goal of retribution or deterrence. Inasmuch as civil sanctions have always been used in the United States to deter violations of the law, courts will have difficulty finding that any civil sanction completely lacks a deterrent purpose. Moreover, of the few civil sanctions that may have survived the required judicial scrutiny into the sanctions' deterrent aspects, still fewer will be likely to emerge intact from the Court's required inquiry into the sanctions' proportionality.

The Court's yardstick for proportionality is the government's costs in the prosecution of the action. Thus, in the Court's opinion, a civil sanction that exceeds the government's costs in connection with the underlying crime is disproportional and therefore punitive within the meaning of the Double Jeopardy Clause. Unfortunately, many civil sanctions will exceed the government's costs in prosecuting the corresponding criminal action. Therefore, such sanctions will trigger the multiple punishment prohibition of the Double Jeopardy Clause, which in turn will provide an absolute bar to the civil action.

The Supreme Court's reliance on the Double Jeopardy clause for the purpose of insuring the proportionality of a civil sanction is defective because, without any supporting precedent, it rests on the Double Jeopardy Clause, rather than on the Excessive Fines Clause of the Eighth Amendment. However, the Excessive Fines Clause provides a more adequate avenue for relief from an excessive sanction because, unlike the Double Jeopardy Clause which bars the civil action altogether, the Excessive Fines Clause provides courts with the flexibility to tailor the sanction to the offense.

Also flawed is the Court's consideration of the relative value of a sanction, when compared with the government's costs, for the purpose of measuring the punitive aspects of the sanction. The interests advanced by the concept of proportionality, as expressed through the Eighth Amendment's Excessive Fines Clause, protect individuals from being punished in excess of what is proper given *1656 the nature of their offense. Thus, the principle of proportionality is not concerned with the relative cost of prosecuting an individual, although that certainly can be a factor to be considered in determining the seriousness of the individual's crime. Rather, the principle of proportionality is concerned with making sure that a sanction does not exceed in severity or gravity the corresponding criminal offense.

The Court's proportionality analysis for the purpose of measuring the remedial effects of a civil sanction is also misguided. If a civil sanction is to serve remedial purposes at all, it must compensate society for the costs inflicted upon society as a result of the underlying act. However, contrary to the Supreme Court's unsupported conclusion, those costs are not necessarily equivalent to the costs incurred by the government in prosecuting the action. Indeed, as the Department of Justice once stated in the context of drug forfeiture cases:

The issue is not what are the government's costs, but what are the 'costs' to society created by drug trafficking. Since this figure is incalculable, the only way to determine if a specific forfeiture is disproportionate is to look at whether that specific forfeiture serves the purpose of helping to disrupt serious criminal activity or otherwise prevent such future activity. If it does, then the relative costs of the harm caused and the asset seized are irrelevant, because drug trafficking causes such great harm to society that a forfeiture resulting from a drug trafficking case could never be disproportionate on a relative cost basis. [FN198]

The Court's approach to remedial proportionality makes even less sense when applied to cases involving civil forfeitures. Civil forfeitures rest on the principle that a negligent or wilful owner must be held responsible for the damages that his property causes to society. Thus, whether the value of the forfeited property exceeds the government's costs in prosecuting the action should be *1657 of no concern in such actions. Additionally, the Supreme Court's current approach places the burden of proving the remedial proportionality of a civil forfeiture on the government, rather than on the negligent or wilful owner. However, any uncertainty as to the remedial proportionality between the value of forfeited property and the damage caused to society by the illegal use of such property should fall upon the shoulders of the negligent or wilful property owner. Indeed, that property owner is not only responsible for the resulting uncertainty, but also has the choice as to the value of the property that is negligently or wilfully used or entrusted.

In summary, the Court has extended by fiat, and without a supporting constitutional or practical basis, the Double Jeopardy protection that it recognized in Halper into every other civil sanction system having a "punitive" edge. [FN199] The repercussions of the Court's careless use and expansion of precedent are likely to be far reaching. Inasmuch as the enforcement of numerous laws around the nation depends on the coordination of criminal and civil remedies, the Supreme Court's newly forged precedent could conceivably frustrate the enforcement of numerous other laws in a variety of unanticipated arenas. [FN200]

*1658 Nowhere will the impact of this misguided precedent be stronger than in the area of drug enforcement. In Justice O'Connor's words, "[t]he State and Federal Government spend vast sums on drug control activities ... (approximately $27 billion in fiscal year 1991). The [owners of property who negligently or willfully allow their property to be used in connection with the drug trade] are directly responsible for some of these expenditures. ..." [FN201] Therefore, the Supreme Court's position on civil forfeitures "will be felt acutely by law-abiding taxpayers, because it will seriously undermine the ability of the State and Federal Governments to collect recompense for the immense costs criminals impose on our society." [FN202]

Despite all the turmoil and confusion that the Supreme Court's expanded Double Jeopardy jurisprudence has caused throughout the country, the Supreme Court has continually refused to grant certiorari to revisit the subject. Hopefully, the Court is utilizing this self-imposed hiatus to take a long and hard look at its misguided approach on the subject and to develop ways in which it can undo the course upon which it has erroneously embarked.

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[FN197]. Of course, the civil sanction must be imposed in addition to criminal punishment and in a proceeding separate from the core criminal proceeding in order to implicate the Double Jeopardy Clause.

[FN198]. See 3 No. 11 DOJ Alert 2 (Sept. 6-20, 1993).

[FN199]. According to the Court, punishment serves the dual purposes of retribution and deterrence. See supra note 130 and accompanying text. Cf. Linda S. Eades, Separating Crime from Punishment: The Constitutional Implications of United States v. Halper, 68 Wash. U.L.Q. 929, 975 (1990) (Halper is a "dramatic break from precedent and traditional understanding of deterrence." It was once considered axiomatic that civil penalties sought to "deter" illegal conduct). For an excellent discussion on the malleability of the boundaries between civil and criminal law, see also Mary M. Cheh, Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending the Criminal Law-Civil Distinction, 42 Hastings L.J. 1325 (1991).

Thus, Supreme Court precedent now dictates that a civil penalty which does not exclusively serve remedial purposes is punishment and, thus, subject to the Double Jeopardy Clause. The natural implication of such pronouncement is that lower courts must now evaluate the legislative history of every single statute that authorizes civil sanctions in order to evaluate whether they serve punishment-type goals.

[FN200]. Numerous regulatory agencies are entitled to seek civil sanctions as part of their enforcement powers. See, e.g., 15 U.S.C.A. ss 77(t)(b), 77(x), 78(u)(c) (West 1973 & Supp. 1995) (SEC); 29 U.S.C.A. s 666(a) (West 1985 & Supp. 1995) (OSHA); 19 U.S.C.A. s 1460 (West 1980 & Supp. 1995) (Customs Service). These agencies are not authorized to pursue criminal actions and, thus, their enforcement powers may run afoul of the Supreme Court's provisions should civil actions ever be deemed criminal. Andrew Z. Glickman, Note, Civil Sanctions and the Double Jeopardy Clause: Applying the Multiple Punishment Doctrine to Parallel Proceedings After United States v. Halper, 76 Va. L. Rev. 1251, 1276 (1990).

[FN201]. Kurth Ranch, 114 S.Ct. at 1953 (dissenting).

[FN202]. Id. at 1955; see also Tilley, 18 F.3d 295, 299 (5th Cir. 1994) (explaining that drugs cost the government and society $60 to $120 billion per year, while they provide drug dealers and other criminals approximately $80 to $100 billion per year in illegal revenue).

41 Wayne L. Rev. 1609Copyright (c) 1995 by the Wayne State University; Monica P. Navarro