Civil in Rem Forfeiture and Double Jeopardy

Abstract

The Double Jeopardy Clause and the ancient practice of civil in rem forfeiture, until recently, occupied two spheres that did not overlap. After Halper's holding that double jeopardy was implicated in certain civil trials which punish the defendant, and Austin's holding that certain civil in rem forfeiture actions act as punishment of the owner of the property at issue, these two venerable legal doctrines collided. This collision was the inevitable result of the Court's laudable attempt to look beyond the "civil" or "criminal" legislative label placed upon an action, in order to determine whether it is actually remedial or punitive. If punitive, the Double Jeopardy Clause of the Fifth Amendment and the Excessive Fines Clause of the Eighth Amendment would limit the action. This brief but shining attempt to curb the legislature's ability to escape all criminal procedural guarantees by a "civil" appellation ended last term with the decision in U.S. v. Ursery. This Article argues not only that civil in rem forfeitures are best described as punitive, but further that parallel civil in rem forfeiture and substantive criminal actions, when based upon the same underlying conduct, ought to be barred under the successive prosecution prong of the double jeopardy clause. The historical justifications for civil in rem forfeiture actions--(1) the governmental necessity of receiving revenue and compensating victims regardless of the guilt of the property owner, (2) the inability to identify or obtain personal jurisdiction over certain property owners, and (3) the government obligation to protect the public from dangerous goods--are inapplicable to modern forfeiture actions, especially in the drug and money laundering areas. Prosecutors are bringing successive criminal and civil actions solely to reap procedural advantages and to punish the property owner even after a criminal acquittal. Since these actions serve the punitive goals of the criminal law and oppress defendants in the same manner as multiple criminal trials, they ought to be treated as such. Whether Ursery's reasoning can be limited to forfeitures is doubtful.

JEL Classification: K49