Larry D. Thompson*
In United States v. Ursery, 116 S.Ct. 2135 (1996), the United States
Supreme Court held by an 8-1 vote that civil forfeitures under 21
U.S.C. §881(a)(6) and (7) and 18 U.S.C. §981(a)(1)(A),
like "civil forfeitures generally ... do not constitute `punishment'
for purposes of the Double Jeopardy Clause." The decision by
Chief Justice Rehnquist reversed the decisions of the Ninth Circuit
in United States v. $405,089.23, 33 F.3d 1210 (9th Cir. 1994), involving
the forfeiture of proceeds of criminal activity, and the Sixth Circuit
in United States v. Ursery, 59 F.3d 568 (6th Cir. 1995), involving
the forfeiture of property that facilitated criminal violations.
At issue in the Court's consolidated decision is the federal government's
use of its civil forfeiture powers. During the past several years,
the United States has exercised its civil forfeiture powers to seize
and forfeit property involved in the commission of crime or traceable
to the proceeds of crime, while also criminally prosecuting individuals
who have violated federal law, such as drug and money laundering
In $405,089.23, the United States instituted civil forfeiture proceedings
against various property seized from or titled to James Wren, Charles
Arlt or Payback Mines, a corporation controlled by Arlt, five days
after a grand jury returned a superseding indictment against Wren,
Arlt and others for conspiracy to aid and abet the manufacture of
methamphetamine, conspiracy to launder monetary instruments and
money laundering. The civil forfeiture case was stayed by stipulation
pending completion of the criminal case. More than a year after
the criminal conviction of Wren and Arlt, the district court held
that the property was forfeitable to the United States pursuant
to 21 U.S.C. §881(a)(6), as proceeds of drug violations and
18 U.S.C. §981(a)(1)(A), as property involved in illegal money
laundering transactions. The Ninth Circuit reversed the district
court and held that the civil forfeiture of property following a
criminal conviction for the same violations constituted a second
punishment prohibited by the Double Jeopardy Clause. In reversing
the forfeiture judgment and ordering the return of the property,
the Ninth Circuit relied upon the Supreme Court's decisions in United
States v. Halper, 490 U.S. 435 (1989) and Austin v. United States,
509 U. S. 602 (1993) and reasoned that since the civil forfeiture
statutes at issue did not serve solely a remedial purpose, the civil
forfeiture constituted a "punishment" for double jeopardy
In Ursery, the United States instituted a civil forfeiture action
against the residence of Guy Jerome Ursery pursuant to 21 U.S.C.§(a)(7),
alleging that Ursery's residence facilitated Ursery's violations
of federal drug statutes. Police had discovered marijuana seeds,
stems, stalks and a growlight inside Ursery's residence as well
as plots of marijuana growing near Ursery's property line. Ursery
and his wife filed claims in the civil forfeiture case, and later
agreed to pay the United States the sum of $13,250.00 in full settlement
of the forfeiture action. Prior to the entry of the consent judgment
in the civil forfeiture case, Ursery was indicted and charged with
one count of manufacture of marijuana in violation of 21 U.S.C.
§841(a)(1). Approximately five weeks after the entry of the
civil forfeiture judgment, the jury returned a guilty verdict against
Ursery in the criminal action. The Sixth Circuit reversed Ursery's
criminal conviction holding that the criminal conviction following
a prior, civil forfeiture violates the Double Jeopardy Clause. In
Ursery, the Sixth Circuit reasoned that under Halper and Austin,
as a categorical matter, any civil forfeiture under 21 U.S.C. §881(a)(7)
constitutes punishment for double jeopardy purposes.
The Supreme Court consolidated the Ninth Circuit and Sixth Circuit
cases for review and reversed both decisions holding that those
civil forfeitures, as well as civil forfeitures generally, do not
constitute punishment for double jeopardy purposes. Writing for
the majority, Justice Rehnquist began by emphasizing that "since
the earliest years of this Nation, Congress has authorized the Government
to seek parallel in rem civil forfeiture actions and criminal actions
based upon the same underlying events." Justice Rehnquist noted
that in the line of cases decided by the Court considering the application
of the Double Jeopardy Clause to civil forfeitures, Various Items
of Personal Property v. United States, 282 U.S. 577 (1931), One
Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972), and
United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984),
the Court concluded that civil forfeitures do not impose punishment
for Double Jeopardy purposes.
Justice Rehnquist reasoned that the Court's seminal decision in
89 Firearms, 465 U.S. 354 (1984) (holding that the forfeiture of
firearms was not barred by the prior, criminal proceeding), established
a two staged inquiry: first, whether Congress intended forfeiture
as a remedial sanction and second, whether the claimant established
by the clearest proof, that the forfeiture law at issue was so punitive,
either in purpose or effect, as to negate Congress' intention to
establish a civil remedial sanction. In applying this two-part test,
Justice Rehnquist first concluded that Congress intended in rem
forfeiture proceedings to be a civil, not a criminal, sanction.
Justice Rehnquist next determined that there is little evidence,
much less clear proof, that forfeiture proceedings are "so
punitive in form and effect as to render them criminal despite Congress'
intent to the contrary."
Justice Rehnquist explained that the Court's decisions in Halper,
Austin and Department of Revenue v. Kurth Ranch, 114 S. Ct. 1937
(1944), did nothing to replace the Court's traditional understanding
that civil forfeiture does not constitute punishment for double
jeopardy purposes. Justice Rehnquist argued that Halper announced
a rule that was limited to the rare civil penalty case "where
a fixed penalty provision subjects a prolific but small-gauge offender
to a sanction overwhelmingly disproportionate to the damage he had
caused." Justice Rehnquist distinguished a fixed penalty provision,
which compensates the government for harm it has suffered, from
an in rem forfeiture statute, which serves a variety of purposes,
including the confiscation of property used in violation of the
law and the disgorgement of the fruits of illegal conduct. Justice
Rehnquist reasoned that the case-by-case approach announced in Halper,
in which a court must balance the harm suffered by the government
against the size of the penalty imposed, is not applicable to civil
forfeiture since "it is virtually impossible to quantify, even
approximately, the nonpunitive purposes served by the particular
Justice Rehnquist also argued that Austin was decided solely under
the Excessive Fines Clause of the Eighth Amendment, a constitutional
provision which "we never have understood as parallel to, or
even related to, the Double Jeopardy Clause of the Fifth Amendment."
Justice Rehnquist explained that the categorical approach outlined
in Austin was appropriate for the Excessive Fines Clause issues
since a preliminary-stage inquiry that determined the disportionality
of a particular sanction, would duplicate the excessiveness analysis.
Justice Rehnquist noted that while forfeitures are subject to review
under the Excessive Fines Clause, "this does not mean, however,
that these forfeitures are so punitive as to constitute punishment
under the Double Jeopardy Clause." Justice Rehnquist noted
that Kurth Ranch dealt with a tax proceeding under the Double Jeopardy
Clause and not with a civil forfeiture proceeding.
In his concurring opinion, Justice Kennedy reasoned that civil
in rem forfeiture is not punishment of the wrongdoer for the criminal
offense. Justice Kennedy noted that the rule that the Double Jeopardy
Clause applies only to in personam punishments of the wrongdoer
and not to in rem forfeitures, does not imply that forfeitures inflict
no punishment. Justice Kennedy argued that since "the punishment
befalls any property holder who cannot claim statutory innocence,
whether or not he committed any criminal acts, it is not a punishment
for a person's criminal wrongdoing." In a separate concurring
opinion, Justice Scalia, joined by Justice Thomas, noted that the
Double Jeopardy Clause prohibits successive prosection, not successive
punishment, and that civil forfeiture proceedings are not criminal
Justice Stevens concurred in the decision of the Court regarding
the $405,089.23 as proceeds of criminal activity and noted that
the forfeiture of proceeds "like the confiscation of money
stolen from a bank, does not punish respondents because it exacts
no price in liberty or lawfully derived property from them."
Justice Stevens, however, dissented in the judgment of the Court
regarding Ursery's criminal conviction. Justice Stevens argued that
Ursery had been punished in the forfeiture proceeding and could
not be subsequently tried criminally. Justice Stevens noted that
in Halper, the Court stated that the labels of criminal and civil
are not determinative of whether a proceeding punishes an individual.
Justice Stevens argued that common sense would dictate that there
"is simply no rational basis for characterizing the seizure
of this respondent's home as anything other than punishment for
his crime." Justice Stevens criticized the Court's endorsement
of the view recently announced in Bennis v. Michigan, 116 S.Ct.
994 (1996) that the purpose of deterrence as served by civil, in
rem forfeiture is a legitimate, remedial purpose.
In light of the Supreme Court's decision, the government will now
be able to exercise its civil forfeiture powers without risking
any related criminal prosecution. Although federal law authorizes
the forfeiture of property in both civil and criminal contexts,
in many instances criminal forfeiture is not an effective tool.
Unlike civil forfeiture proceedings, criminal forfeiture may only
be instituted as part of the indictment and ordered as part of sentencing
upon conviction. On the other hand, civil forfeitures are in rem
actions against the property itself and may occur prior to the return
of an indictment or even in the absence of a criminal prosecution.
From the tone of the Ursery opinion, it is unlikely that the Supreme
Court will be sympathetic to arguments restricting civil forfeiture.
Some who are concerned over the government's increasing power in
the civil forfeiture area have attempted legislative reform. A little
over a year ago, representative Henry Hyde (R.-Ill.) introduced
the Civil Asset Forfeiture Reform Act, H.R. 1916. At that time,
representative Hyde characterized the civil asset forfeiture system
as a "jurisprudential Frankenstein monster." 2 Money Laundering
Law Report (August 1996). Whether civil asset forfeiture has long
been a powerful tool in law enforcement and this Supreme Court is
not about to disturb years of legal precedent upholding civil forfeiture.
In Bennis v. Michigan, 166 S.Ct. 994, 1003 (1996), Justice Thomas,
in his concurring opinion, recognized the potential for abuse in
civil forfeiture but nevertheless aptly noted that any reform of
the civil forfeiture system should not come from the Court but instead
the state legislatures, Congress or executive branch of the federal
Improperly used, forfeiture could become more like a roulette wheel
employed to raise revenue from innocent but hapless owners whose
property is unforeseeably misused, or a tool wielded to punish those
who associate with criminals, than a component of a system of justice.
When the property sought to be forfeited has been entrusted by its
owner to one who uses it for crime, however, the Constitution apparently
assigns to the States and to the political branches of the Federal
Government the primary responsibility for avoiding that result.
As a result of the Supreme Court's decision, the government will
continue to exercise its rights under the Civil Forfeiture laws
of the United States.
* Larry Thompson is the former United States Attorney for the Northern
District of Georgia, and is currently a partner in the law firm
of King & Spalding.