In separate cases, the United States Court of Appeals for the Sixth Circuit and the United States Court of Appeals for the Ninth Circuit held that the Double Jeopardy Clause prohibits the Government from both punishing a defendant for a criminal offense and forfeiting his property for that same offense in a separate civil proceeding. We consolidated those cases for our review, and now reverse. These civil forfeitures (and civil forfeitures generally), we hold, do
I
No. 95-345: Michigan Police found marijuana growing adjacent to respondent Guy Ursery's house, and discovered marijuana seeds, stems, stalks, and a grow light within the house. The United States instituted civil forfeiture proceedings against the house, alleging that the property was subject to forfeiture under 84 Stat. 1276, as amended, 21 U. S. C. § 881(a)(7), because it had been used for several years to facilitate the unlawful processing and distribution of a controlled substance. Ursery ultimately paid the United States $13,250 to settle the forfeiture claim in full. Shortly before the settlement was consummated, Ursery was indicted for manufacturing marijuana, in violation of § 841(a)(1). A jury found him guilty, and he was sentenced to 63 months in prison.
The Court of Appeals for the Sixth Circuit by a divided vote reversed Ursery's criminal conviction, holding that the conviction violated the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. 59 F.3d 568 (1995). The court based its conclusion in part upon its belief that our decisions in United States v. Halper, 490 U.S. 435 (1989), and Austin v. United States, 509 U.S. 602 (1993), meant that any civil forfeiture under § 881(a)(7) constitutes punishment for purposes of the Double Jeopardy Clause. Ursery, in the court's view, had therefore been "punished" in the forfeiture proceeding against his property, and could not be subsequently criminally tried for violation of 21 U. S. C. § 841(a)(1).
No. 95-346: Following a jury trial, Charles Wesley Arlt and James Wren were convicted of: conspiracy to aid and abet the manufacture of methamphetamine, in violation of 21 U. S. C. § 846; conspiracy to launder monetary instruments, in violation of 18 U. S. C. § 371; and numerous counts of money laundering, in violation of § 1956. The District Court
Before the criminal trial had started, the United States had filed a civil in rem complaint against various property seized from, or titled to, Arlt and Wren, or Payback Mines, a corporation controlled by Arlt. The complaint alleged that each piece of property was subject to forfeiture both under 18 U. S. C. § 981(a)(1)(A), which provides that "[a]ny property . . . involved in a transaction or attempted transaction in violation of" § 1956 (the money-laundering statute) "is subject to forfeiture to the United States"; and under 21 U. S. C. § 881(a)(6), which provides for the forfeiture of (i) "[a]ll . . . things of value furnished or intended to be furnished by any person in exchange for" illegal drugs, (ii) "all proceeds traceable to such an exchange," and (iii) "all moneys, negotiable instruments, and securities used or intended to be used to facilitate" a federal drug felony. The parties agreed to defer litigation of the forfeiture action during the criminal prosecution. More than a year after the conclusion of the criminal trial, the District Court granted the Government's motion for summary judgment in the civil forfeiture proceeding.
Arlt and Wren appealed the decision in the forfeiture action, and the Court of Appeals for the Ninth Circuit reversed, holding that the forfeiture violated the Double Jeopardy Clause. 33 F.3d 1210 (1994), amended 56 F.3d 41 (1995). The court's decision was based in part upon the same view as that expressed by the Court of Appeals for the Sixth Circuit in Ursery's case—that our decisions in Halper, supra, and Austin, supra, meant that, as a categorical matter, forfeitures under §§ 981(a)(1)(A) and 881(a)(6) always constitute "punishment."
We granted the Government's petition for certiorari in each of the two cases, and we now reverse. 516 U.S. 1070 (1996).
II
The Double Jeopardy Clause provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U. S. Const., Amdt. 5. The Clause serves the function of preventing both "successive punishments and . . . successive prosecutions." United States v. Dixon, 509 U.S. 688, 696 (1993), citing North Carolina v. Pearce, 395 U.S. 711 (1969). The protection against multiple punishments prohibits the Government from "`punishing twice, or attempting a second time to punish criminally for the same offense.' " Witte v. United States, 515 U.S. 389, 396 (1995) (emphasis deleted), quoting Helvering v. Mitchell, 303 U.S. 391, 399 (1938).
In the decisions that we review, the Courts of Appeals held that the civil forfeitures constituted "punishment," making them subject to the prohibitions of the Double Jeopardy Clause. The Government challenges that characterization of the forfeitures, arguing that the courts were wrong to conclude that civil forfeitures are punitive for double jeopardy purposes.
A
Since the earliest years of this Nation, Congress has authorized the Government to seek parallel in rem civil forfeiture actions and criminal prosecutions based upon the same underlying events. See, e. g., Act of July 31, 1789, ch. 5, § 12, 1 Stat. 39 (goods unloaded at night or without a permit subject to forfeiture and persons unloading subject to criminal prosecution); § 25, id., at 43 (persons convicted of buying or concealing illegally imported goods subject to both monetary fine and in rem forfeiture of the goods); § 34, id., at 46 (imposing criminal penalty and in rem forfeiture where person convicted of relanding goods entitled to drawback); see also The Palmyra, 12 Wheat. 1, 14-15 (1827) ("Many cases exist, where there is both a forfeiture in rem and a personal penalty"); cf. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683 (1974) (discussing adoption of forfeiture statutes by early Congresses). And, in a long line of cases, this Court has considered the application of the Double Jeopardy Clause to civil forfeitures, consistently concluding that the Clause does not apply to such actions because they do not impose punishment.
One of the first cases to consider the relationship between the Double Jeopardy Clause and civil forfeiture was Various Items of Personal Property v. United States, 282 U.S. 577 (1931). In Various Items, the Waterloo Distilling Corporation had been ordered to forfeit a distillery, warehouse, and denaturing plant, on the ground that the corporation had conducted its distilling business in violation of federal law. The Government conceded that the corporation had been convicted of criminal violations prior to the initiation of the forfeiture proceeding, and admitted that the criminal conviction had been based upon "the transactions set forth . . . as a basis for the forfeiture." Id., at 579. Considering the corporation's argument that the forfeiture action violated the Double Jeopardy Clause, this Court unanimously held that the Clause was inapplicable to civil forfeiture actions:
In reaching its conclusion, the Court drew a sharp distinction between in rem civil forfeitures and in personam civil penalties such as fines: Though the latter could, in some circumstances, be punitive, the former could not. Ibid. Referring to a case that was decided the same day as Various Items, the Court made its point absolutely clear:
Had the Court in Various Items found that a civil forfeiture could constitute a "punishment" under the Fifth Amendment, its holding would have been quite remarkable. As that Court recognized, "[a]t common law, in many cases, the right of forfeiture did not attach until the offending person had been convicted and the record of conviction produced." Ibid. In other words, at common law, not only was it the case that a criminal conviction did not bar a civil forfeiture, but, in fact, the civil forfeiture could not be instituted unless a criminal conviction had already been obtained. Though this Court had held that common-law rule inapplicable where
Following its decision in Various Items, the Court did not consider another double jeopardy case involving a civil forfeiture for 40 years. Then, in One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972) (per curiam), the Court's brief opinion reaffirmed the rule of Various Items. In Emerald Cut Stones, after having been acquitted of smuggling jewels into the United States, the owner of the jewels intervened in a proceeding to forfeit them as contraband. We rejected the owner's double jeopardy challenge to the forfeiture, holding that "[i]f for no other reason, the forfeiture is not barred by the Double Jeopardy Clause of the Fifth Amendment because it involves neither two criminal trials nor two criminal punishments." 409 U. S., at 235. Noting that the forfeiture provisions had been codified separately from parallel criminal provisions, the Court determined that the forfeiture clearly was "a civil sanction." Id. , at 236. The forfeitures were not criminal punishments because they did not impose a second in personam penalty for the criminal defendant's wrongdoing.
In our most recent decision considering whether a civil forfeiture constitutes punishment under the Double Jeopardy Clause, we again affirmed the rule of Various Items. In
In another unanimous decision, we held that the forfeiture was not barred by the prior criminal proceeding. We began our analysis by stating the rule for our decision:
Our inquiry proceeded in two stages. In the first stage, we looked to Congress' intent, and concluded that "Congress designed forfeiture under § 924(d) as a remedial civil sanction." 465 U. S., at 363. This conclusion was based upon several findings. First, noting that the forfeiture proceeding was in rem, we found it significant that "[a]ctions in rem have traditionally been viewed as civil proceedings, with jurisdiction dependent upon seizure of a physical object." Ibid., citing Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S., at 684. Second, we found that the forfeiture provision, because it reached both weapons used in violation of federal law and those "intended to be used" in such a manner, reached a broader range of conduct than its criminal analog. Third, we concluded that the civil forfeiture "further[ed] broad remedial aims," including both "discouraging unregulated commerce in firearms" and "removing from circulation firearms that have been used or intended for use outside regulated channels of commerce." 89 Firearms, supra, at 364.
B
Our cases reviewing civil forfeitures under the Double Jeopardy Clause adhere to a remarkably consistent theme. Though the two-part analytical construct employed in 89 Firearms was more refined, perhaps, than that we had used over 50 years earlier in Various Items, the conclusion was the same in each case: In rem civil forfeiture is a remedial civil sanction, distinct from potentially punitive in personam civil penalties such as fines, and does not constitute a punishment under the Double Jeopardy Clause. See Gore v. United States, 357 U.S. 386, 392 (1958) ("In applying a provision like that of double jeopardy, which is rooted in history
In the cases that we currently review, the Court of Appeals for the Ninth Circuit recognized as much, concluding that after 89 Firearms, "the law was clear that civil forfeitures did not constitute `punishment' for double jeopardy purposes." 33 F. 3d, at 1218. Nevertheless, that court read three of our decisions to have "abandoned" 89 Firearms and the oft-affirmed rule of Various Items. According to the Court of Appeals for the Ninth Circuit, through our decisions in United States v. Halper, 490 U.S. 435 (1989), Austin v. United States, 509 U.S. 602 (1993), and Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767 (1994), we "changed [our] collective mind," and "adopted a new test for determining whether a nominally civil sanction constitutes `punishment' for double jeopardy purposes." 33 F. 3d, at 1218-1219. The Court of Appeals for the Sixth Circuit shared the view of the Ninth Circuit, though it did not directly rely upon Kurth Ranch. We turn now to consider whether Halper, Austin, and Kurth Ranch accomplished the radical jurisprudential shift perceived by the Courts of Appeals.
In Halper, we considered "whether and under what circumstances a civil penalty may constitute `punishment' for the purposes of double jeopardy analysis." Halper, supra, at 436. Based upon his submission of 65 inflated Medicare claims, each of which overcharged the Government by $9, Halper was criminally convicted of 65 counts of violating the false-claims statute, 18 U. S. C. § 287 (1982 ed.), as well as of 16 counts of mail fraud, and was sentenced to two years in prison and fined $5,000. Following that criminal conviction, the Government successfully brought a civil action against Halper under 31 U. S. C. § 3729 (1982 ed. and Supp. II). The District Court hearing the civil action determined that Halper was liable to the Government for over $130,000 under § 3729, which then provided for liability in the amount of
This Court agreed with the District Court's analysis. We determined that our precedent had established no absolute and irrebuttable rule that a civil fine cannot be "punishment" under the Double Jeopardy Clause. Though it was well established that "a civil remedy does not rise to the level of `punishment' merely because Congress provided for civil recovery in excess of the Government's actual damages," we found that our case law did "not foreclose the possibility that in a particular case a civil penalty . . . may be so extreme and so divorced from the Government's damages and expenses as to constitute punishment." 490 U. S., at 442. Emphasizing the case-specific nature of our inquiry, id., at 448, we compared the size of the fine imposed on Halper, $130,000, to the damages actually suffered by the Government as a result of Halper's actions, estimated by the District Court at $585. Noting that the fine was more than 220 times greater than the Government's damages, we agreed with the District Court that "Halper's $130,000 liability is sufficiently disproportionate that the sanction constitutes a second punishment in violation of double jeopardy." Id., at 452. We remanded to the District Court so that it could hear evidence regarding the Government's actual damages, and could then reduce Halper's liability to a nonpunitive level. Ibid.
In Austin, we considered whether a civil forfeiture could violate the Excessive Fines Clause of the Eighth Amendment to the Constitution, which provides that "[e]xcessive bail shall not be required, nor excessive fines imposed . . . ." Aware that Austin had sold two grams of cocaine the previous
We limited our review to the question "whether the Excessive Fines Clause of the Eighth Amendment applies to forfeitures of property under 21 U. S. C. §§ 881(a)(4) and (a)(7)." Austin, supra, at 604. We began our analysis by rejecting the argument that the Excessive Fines Clause was limited solely to criminal proceedings: The relevant question was not whether a particular proceeding was criminal or civil, we determined, but rather was whether forfeiture under §§ 881 (a)(4) and (a)(7) constituted "punishment" for the purposes of the Eighth Amendment. Austin, supra, at 610. In an effort to answer that question, we briefly reviewed the history of civil forfeiture both in this country and in England, see 509 U. S., at 611-618, taking a categorical approach that contrasted sharply with Halper `s case-specific approach to determining whether a civil penalty constitutes punishment. Ultimately, we concluded that "forfeiture under [§§ 881(a)(4) and (a)(7)] constitutes `payment to a sovereign as punishment for some offense,' and, as such, is subject to the limitations of the Eighth Amendment's Excessive Fines Clause." 509 U. S., at 622 (citation omitted).
In Department of Revenue of Mont. v. Kurth Ranch, supra, we considered whether a state tax imposed on marijuana was invalid under the Double Jeopardy Clause when the taxpayer had already been criminally convicted of owning
We think that the Court of Appeals for the Sixth Circuit and the Court of Appeals for the Ninth Circuit misread Halper, Austin, and Kurth Ranch. None of those decisions purported to overrule the well-established teaching of Various Items, Emerald Cut Stones, and 89 Firearms. Halper involved not a civil forfeiture, but a civil penalty. That its rule was limited to the latter context is clear from the decision itself, from the historical distinction that we have drawn between civil forfeiture and civil penalties, and from the practical difficulty of applying Halper to a civil forfeiture.
In Halper, we emphasized that our decision was limited to the context of civil penalties:
The narrow focus of Halper followed from the distinction that we have drawn historically between civil forfeiture and civil penalties. Since at least Various Items, we have distinguished civil penalties such as fines from civil forfeiture proceedings that are in rem. While a "civil action to recover . . . penaltie[s] is punitive in character," and much like a criminal prosecution in that "it is the wrongdoer in person who is proceeded against . . . and punished," in an in rem forfeiture proceeding, "[i]t is the property which is proceeded against, and by resort to a legal fiction, held guilty and condemned." Various Items, 282 U. S., at 580-581. Thus, though for double jeopardy purposes we have never balanced the value of property forfeited in a particular case against the harm suffered by the Government in that case, we have balanced the size of a particular civil penalty against the Government's harm. See, e. g., Rex Trailer Co. v. United States, 350 U. S., at 154 (fines not "so unreasonable or excessive" as to transform a civil remedy into a criminal penalty); United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943) (fine of $315,000 not so disproportionate to Government's harm of $101,500 as to transform the fine into punishment). Indeed, the rule set forth in Halper developed from the teaching of Rex Trailer and Hess. See Halper, supra, at 445-447.
It is difficult to see how the rule of Halper could be applied to a civil forfeiture. Civil penalties are designed as a rough form of "liquidated damages" for the harms suffered by the
In the cases that we review, the Courts of Appeals did not find Halper difficult to apply to civil forfeiture because they concluded that its case-by-case balancing approach had been supplanted in Austin by a categorical approach that found a civil sanction to be punitive if it could not "fairly be said solely to serve a remedial purpose." See Austin, 509 U. S., at 610; see also Halper, 490 U. S., at 448. But Austin, it must be remembered, did not involve the Double Jeopardy Clause at all. 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. The only discussion of the Double Jeopardy Clause contained in Austin appears in a footnote that acknowledges our decisions holding that "[t]he Double Jeopardy Clause has been held not to apply in civil forfeiture proceedings . . . where the forfeiture could properly be characterized as remedial." Austin, supra, at 608, n. 4. And in Austin we expressly recognized and approved our decisions in 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). See Austin, supra, at 608, n. 4.
In sum, nothing in Halper, Kurth Ranch, or Austin purported to replace our traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause. Congress long has authorized the Government to bring parallel criminal proceedings and civil
C
We turn now to consider the forfeitures in these cases under the teaching of Various Items, Emerald Cut Stones, and 89 Firearms. Because it provides a useful analytical tool, we conduct our inquiry within the framework of the two-part test used in 89 Firearms. First, we ask whether Congress intended proceedings under 21 U. S. C. § 881 and 18 U. S. C. § 981 to be criminal or civil. Second, we turn to consider whether the proceedings are so punitive in fact as to "persuade us that the forfeiture proceeding[s] may not legitimately be viewed as civil in nature," despite Congress' intent. 465 U. S., at 366.
There is little doubt that Congress intended these forfeitures to be civil proceedings. As was the case in 89 Firearms, "Congress' intent in this regard is most clearly demonstrated by the procedural mechanisms it established for enforcing forfeitures under the statute[s]." Id., at 363. Both 21 U. S. C. § 881 and 18 U. S. C. § 981, which is entitled "Civil forfeiture," provide that the laws "relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws . . . shall apply to seizures and forfeitures incurred" under §§ 881 and 981. See 21 U. S. C. § 881(d); 18 U. S. C. § 981(d). Because forfeiture
Other procedural mechanisms governing forfeitures under §§ 881 and 981 also indicate that Congress intended such proceedings to be civil. Forfeitures under either statute are governed by 19 U. S. C. § 1607, which provides that actual notice of the impending forfeiture is unnecessary when the Government cannot identify any party with an interest in the seized article, and by § 1609, which provides that seized property is subject to forfeiture through a summary administrative procedure if no party files a claim to the property. And 19 U. S. C. § 1615, which governs the burden of proof in forfeiture proceedings under §§ 881 and 981, provides that once the Government has shown probable cause that the property is subject to forfeiture, then "the burden of proof shall lie upon [the] claimant." In sum, "[b]y creating such distinctly civil procedures for forfeitures under [§§ 881 and 981], Congress has `indicate[d] clearly that it intended a civil, not a criminal sanction.' " 89 Firearms, supra, at 363, quoting Helvering v. Mitchell, 303 U.S. 391, 402 (1938).
Most significant is that § 981(a)(1)(A) and §§ 881(a)(6) and (a)(7), while perhaps having certain punitive aspects, serve important nonpunitive goals. Title 21 U. S. C. § 881(a)(7), under which Ursery's property was forfeited, provides for the forfeiture of "all real property . . . which is used or intended to be used, in any manner or part, to commit, or to facilitate the commission of" a federal drug felony. Requiring the forfeiture of property used to commit federal narcotics violations encourages property owners to take care in managing their property and ensures that they will not permit that property to be used for illegal purposes. See Bennis v. Michigan, 516 U.S. 442, 452 (1996) ("Forfeiture of property prevents illegal uses . . . by imposing an economic penalty, thereby rendering illegal behavior unprofitable"); 89 Firearms, supra, at 364 (forfeiture "discourages unregulated commerce in firearms"); Calero-Toledo, supra, at 687-688. In many circumstances, the forfeiture may abate a nuisance. See, e. g., United States v. 141st Street Corp., 911 F.2d 870 (CA2 1990) (forfeiting apartment building used to sell crack cocaine); see also Bennis, supra, at 452 (affirming application of Michigan statute abating car as a nuisance; forfeiture "prevent[s] further illicit use of" property); cf. 89 Firearms, 465
The forfeiture of the property claimed by Arlt and Wren took place pursuant to 18 U. S. C. § 981(a)(1)(A) and 21 U. S. C. § 881(a)(6). Section 981(a)(1)(A) provides for the forfeiture of "[a]ny property" involved in illegal moneylaundering transactions. Section 881(a)(6) provides for the forfeiture of "[a]ll . . . things of value furnished or intended to be furnished by any person in exchange for" illegal drugs; "all proceeds traceable to such an exchange"; and "all moneys, negotiable instruments, and securities used or intended to be used to facilitate" a federal drug felony. The same remedial purposes served by § 881(a)(7) are served by §§ 881(a)(6) and 981(a)(1)(A). Only one point merits separate discussion. To the extent that § 881(a)(6) applies to "proceeds" of illegal drug activity, it serves the additional nonpunitive goal of ensuring that persons do not profit from their illegal acts.
Other considerations that we have found relevant to the question whether a proceeding is criminal also tend to support a conclusion that § 981(a)(1)(A) and §§ 881(a)(6) and (a)(7) are civil proceedings. See Ward, supra, at 247-248, n. 7, 249 (listing relevant factors and noting that they are neither exhaustive nor dispositive). First, in light of our decisions in Various Items, Emerald Cut Stones, and 89 Firearms , and the long tradition of federal statutes providing for a forfeiture proceeding following a criminal prosecution, it is absolutely clear that in rem civil forfeiture has not historically been regarded as punishment, as we have understood that term under the Double Jeopardy Clause. Second, there is no requirement in the statutes that we currently review that the Government demonstrate scienter in order to establish that the property is subject to forfeiture; indeed, the property may be subject to forfeiture even if no party files a
We hold that these in rem civil forfeitures are neither "punishment" nor criminal for purposes of the Double Jeopardy Clause. The judgments of the Court of Appeals for the Sixth Circuit, in No. 95-345, and of the Court of Appeals for the Ninth Circuit, in No. 95-346, are, accordingly, reversed.
It is so ordered.
Justice Kennedy, concurring.
I join the Court's opinion and add these further observations.
In Austin v. United States, 509 U.S. 602, 619-622 (1993), we described the civil in rem forfeiture provision of 21 U. S. C. § 881(a)(7) at issue here as punitive. In Libretti v. United States, 516 U.S. 29 (1995), we reviewed 21 U. S. C.
The Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U. S. Const., Amdt. 5. We have interpreted the Double Jeopardy Clause to "protec[t] against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense." Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 306-307 (1984); Jones v. Thomas, 491 U.S. 376, 380-381 (1989).
Although there is language in our cases to the contrary, see One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700 (1965); Boyd v. United States, 116 U.S. 616, 634 (1886), civil in rem forfeiture is not punishment of the wrongdoer for his criminal offense. We made this clear in Various Items of Personal Property v. United States, 282 U.S. 577 (1931), which the Court is right to deem the seminal case in this area, ante, at 274.
The key distinction is that the instrumentality-forfeiture statutes are not directed at those who carry out the crimes, but at owners who are culpable for the criminal misuse of the property. See Austin, supra, at 619 (statutory "exemptions serve to focus the provisions on the culpability of the owner"). The theory is that the property, whether or not illegal or dangerous in nature, is hazardous in the hands of this owner because either he uses it to commit crimes, or allows others to do so. The owner can be held accountable for the misuse of the property. Cf. One 1958 Plymouth Sedan, supra, at 699 ("There is nothing even remotely criminal in possessing an automobile. It is only the alleged use to which this particular automobile was put that subjects [the owner] to its possible loss"). The same rationale is at work in the statutory provisions enabling forfeiture of currency "used or intended to be used" to facilitate a criminal offense, § 881(a)(6). See also 18 U. S. C. § 981(a)(1)(A) (property involved in money-laundering transactions or attempts in violation of 18 U. S. C. § 1956). Since the punishment befalls any property holder who cannot claim statutory innocence,
Forfeiture, then, punishes an owner by taking property involved in a crime, and it may happen that the owner is also the wrongdoer charged with a criminal offense. But the forfeiture is not a second in personam punishment for the offense, which is all the Double Jeopardy Clause prohibits. See ante, at 276 ("The forfeitures were not criminal punishments because they did not impose a second in personam penalty for the criminal defendant's wrongdoing"); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235 (1972) (per curiam) ("[T]he forfeiture is not barred by the Double Jeopardy Clause of the Fifth Amendment because it involves neither two criminal trials nor two criminal punishments").
Civil in rem forfeiture has long been understood as independent of criminal punishments. In The Palmyra, 12 Wheat. 1 (1827), we rejected a claim that a libel in rem required a conviction for the criminal offense charged in the libel. Distinguishing forfeitures of a felon's goods and chattels, which required proof of a conviction, we noted that the statutory in rem "offence is attached primarily to the thing," and that often in rem forfeiture was imposed in the absence of any in personam penalty. Id., at 14. Examining American and English statutes, we concluded: "[T]he practice has been, and so this Court understand[s] the law to be, that the proceeding in rem stands independent of, and wholly unaffected by any criminal proceeding in personam. " Id., at 15.
Distinguishing between in rem and in personam punishments does not depend upon, or revive, the fiction alive in Various Items, supra, at 581, but condemned in Austin, supra, at 615, n. 9, that the property is punished as if it were a sentient being capable of moral choice. It is the owner who feels the pain and receives the stigma of the forfeiture, not the property. See United States v. United States Coin & Currency, 401 U.S. 715, 718 (1971). The distinction
For this reason, Justice Stevens' attempt, post, at 317, to rely on the same-elements test of Blockburger v. United States, 284 U.S. 299, 304 (1932), is unavailing. Blockburger is a misfit in this context; it compares the elements of two offenses charged against a defendant. The forfeiture cause of action is not charging a second offense of the person; it is a proceeding against the property in which proof of a criminal violation by any person will suffice, provided that some knowledge of, or consent to, the crime on the part of the property owner is also established.
In Part II—C of its opinion, the Court conducts the twopart inquiry established in 89 Firearms, supra, at 362-366, as to whether, first, Congress intended the proceedings to be civil, and, second, the forfeitures are so punitive as to be
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
In my view, the Double Jeopardy Clause prohibits successive prosecution, not successive punishment. See Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 798 (1994) (Scalia, J., dissenting). Civil forfeiture proceedings of the sort at issue here are not criminal prosecutions, even under the standard of Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164 (1963), and United States v. Ward, 448 U.S. 242, 248-251 (1980).
Justice Stevens, concurring in the judgment in part and dissenting in part.
The question the Court poses is whether civil forfeitures constitute "punishment" for purposes of the Double Jeopardy Clause. Because the numerous federal statutes authorizing forfeitures cover such a wide variety of situations, it is quite
In No. 95-346 the Government has forfeited $405,089.23 in currency. Those funds are the proceeds of unlawful activity. They are not property that respondents have any right to retain. The forfeiture of such 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. I agree that the forfeiture of such proceeds is not punitive and therefore I concur in the Court's disposition of No. 95-346.
None of the property seized in No. 95-345 constituted proceeds of illegal activity. Indeed, the facts of that case reveal a dramatically different situation. Respondent Ursery cultivated marijuana in a heavily wooded area not far from his home in Shiawassee County, Michigan. The illegal substance was consumed by members of his family, but there is no evidence, and no contention by the Government, that he sold any of it to third parties. Acting on the basis of the incorrect assumption that the marijuana plants were on respondent's property, Michigan police officers executed a warrant to search the premises. In his house they found marijuana seeds, stems, stalks, and a grow light. I presume those items were seized, and I have no difficulty concluding that such a seizure does not constitute punishment because respondent had no right to possess contraband. Accordingly, I agree with the Court's opinion insofar as it explains why the forfeiture of contraband does not constitute punishment for double jeopardy purposes.
The critical question presented in No. 95-345 arose, not out of the seizure of contraband by the Michigan police, but rather out of the decision by the United States attorney to
The Government has advanced four arguments in support of its position that the forfeiture of respondent's home under § 881(a)(7) followed by his prosecution under § 841(a)(1) did not violate the Double Jeopardy Clause: (1) the forfeiture was not punitive; (2) even if punitive, it was not a "jeopardy"; (3) even if both the forfeiture and the prosecution were jeopardies, they were not based on the same offense under the
I
In recent years, both Congress and the state legislatures have armed their law enforcement authorities with new powers to forfeit property that vastly exceed their traditional tools.
In the Court's view, the seminal case is Various Items of Personal Property v. United States, 282 U.S. 577 (1931), which approved the forfeiture of an illegal distillery by resort to the "legal fiction" that the distillery rather than its owner was being punished "as though it were conscious instead of inanimate and insentient." Id., at 581. Starting from that fanciful premise, the Court was able to conclude that confiscating the property after the owner was prosecuted for the underlying violations of the revenue laws did not offend the Double Jeopardy Clause.
According to the Court, Various Items established a categorical rule that the Double Jeopardy Clause was "inapplicable to civil forfeiture actions." Ante, at 274. The Court asserts that this rule has received "remarkably consistent" application and was "reaffirmed" by a pair of cases in 1972 and 1984. Ante, at 278, 276. In reality, however, shortly after its announcement, Various Items simply disappeared from our jurisprudence. We cited that case in only two decisions over the next seven years, and never again in
More important, neither of those cases endorsed the asserted categorical rule that civil forfeitures never give rise to double jeopardy rights. Instead, each carefully considered the nature of the particular forfeiture at issue, classifying it as either "punitive" or "remedial," before deciding whether it implicated double jeopardy. Emerald Cut Stones concerned a customs statute that authorized confiscation of certain merchandise, in that case jewelry, that had been smuggled into the United States. The Court explained that the purpose of the statute was to remove such items from circulation, and that the penalty amounted to a reasonable liquidated damages award to reimburse the Government for the costs of enforcement and investigation. In those respects, therefore, it constituted a "remedial rather than punitive sanctio[n]." 409 U. S., at 237. In 89 Firearms, the Court explored in even greater detail the character of a federal statute that forfeited unregistered firearms. It reasoned that the sanction "further[ed] broad remedial aims" in preventing commerce in such weapons, and also covered a broader range of conduct than simply criminal behavior. 465 U. S., at 364. For those reasons, it was not properly characterized as a punitive sanction.
The majority, surprisingly, claims that Austin v. United States, 509 U.S. 602 (1993), "expressly recognized and approved" those decisions. Ante, at 286. But the Court creates the appearance that we endorsed its interpretation of 89 Firearms and Emerald Cut Stones by quoting selectively from Austin. We actually stated the following:
In reality, both cases rejected the monolithic view that all in rem civil forfeitures should be treated the same, and recognized the possibility that other types of forfeitures that could not "properly be characterized as remedial" might constitute "an additional penalty for the commission of a criminal act." 465 U. S., at 366.
That possibility was not merely speculative. The Court had already decided that other constitutional protections applied to forfeitures that had a punitive element. In Boyd v. United States, 116 U.S. 616 (1886), the Court held that compulsory production of an individual's private papers for use in a proceeding to forfeit his property for alleged fraud against the revenue laws violated both the Fourth Amendment and the Fifth Amendment's Self-Incrimination Clause. As the Court stated: "[P]roceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, though they may be civil in form, are in their nature criminal" and thus give rise to these constitutional safeguards. Id., at 634.
We reaffirmed Boyd twice during the span of time between our decisions in Various Items and 89 Firearms. In One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965), the Court unanimously repeated Boyd `s conclusion that "a forfeiture proceeding is quasi-criminal in character" and "[i]ts object, like a criminal proceeding, is to penalize for the commission of an offense against the law." The Court therefore held that the Fourth Amendment applied to a proceeding
Even more significant is United States v. United States Coin & Currency, 401 U.S. 715 (1971), in which the Court again held that the Fifth Amendment applied to forfeiture proceedings. Coin & Currency involved the confiscation of gambling money under a statute, quite similar to 21 U. S. C. § 881, providing that "`[i]t shall be unlawful to have or possess any property intended for use in violating the provisions of the internal revenue laws . . . and no property rights shall exist in any such property.' " 401 U. S., at 716 (quoting 26 U. S. C. § 7302). The Court held that the Fifth Amendment barred the Government's attempt to introduce evidence of the defendant's failure to file required tax forms against him in the forfeiture proceeding. Following Boyd, the Court explained that the form of the proceeding as civil or criminal could not have any bearing on the rights that attached when the sanction was a penalty. "From the relevant constitutional standpoint, there is no difference between a man who `forfeits' $8,674 because he has used the money in illegal gambling activities and a man who pays a `criminal fine' of $8,674 as a result of the same course of conduct." 401 U. S., at 718. In each case, the Court reasoned, the liability derives from the same offense of the owner; hence, "the Fifth Amendment applies with equal force." Ibid.
Emerald Cut Stones expressly recognized the continuing validity of Coin & Currency and One 1958 Plymouth Sedan. It distinguished the customs statute in that case because the forfeiture did not depend on the fact of a criminal offense or conviction. See 409 U. S., at 236, n. 6. See also United States v. Ward, 448 U.S. 242, 254 (1980) (discussing Boyd ). That recognition is critical. For whatever its connection to the Excessive Fines Clause of the Eighth Amendment, the Double Jeopardy Clause is part of the same Amendment as the Self-Incrimination Clause, and ought to be interpreted
Read properly, therefore, 89 Firearms and Emerald Cut Stones are not inconsistent with, but set the stage for, the modern understanding of how the Double Jeopardy Clause applies in nominally civil proceedings. That understanding has been developed in a trio of recent decisions: United States v. Halper, 490 U.S. 435 (1989), Austin v. United States, 509 U.S. 602 (1993), and Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767 (1994). The Court of Appeals found that the combined effect of two of those decisions—Halper and Austin —established the proposition that forfeitures under 21 U. S. C. § 881(a)(7) implicated double jeopardy. This Court rejects that conclusion, asserting that none of these cases changed the "oft-affirmed rule" of Various Items. Ante, at 279.
It is the majority, however, that has "misread" Halper, Austin, and Kurth Ranch by artificially cabining each to a separate sphere, see ante, at 288, and treating the three as if they concerned unrelated subjects. In fact, all three were devoted to the common enterprise of giving meaning to the idea of "punishment," a concept that plays a central role in
In the past seven years, we have applied that same rule to three types of sanctions: civil penalties, civil forfeitures, and taxes.
The first was the subject of Halper itself. The defendant had been convicted for submitting 65 false claims for reimbursement (seeking $12 for each, when the actual services rendered entitled him to only $3) to a Medicare provider, and sentenced to imprisonment for two years and a $5,000 fine. The Government then brought a civil action against him for the same offenses. The penalty for violating the civil falseclaims statute consisted of double the Government's damages plus court costs and a fixed fine of $2,000 per false claim. See id., at 438. Accordingly, the Government sought a penalty of $130,000, although the defendant's fraud had caused an actual loss of only $585. Applying the definition of "punishment" given above, the Court first held that the fixed $2,000 fine served a remedial purpose because it was designed to compensate the Government "roughly" for the costs of law enforcement and investigation. Id., at 445. Despite finding that the fine was not by nature punitive, the
The second category of sanctions—civil forfeitures—was the subject of Austin. In that case, the Government sought to forfeit the petitioner's mobile home and auto body shop as instrumentalities of the drug trade under 21 U. S. C. §§ 881(a)(4) and (a)(7) because he had sold cocaine there. Applying Halper `s definition of punishment, see 509 U. S., at 610, 621, we held that §§ 881(a)(4) and (a)(7) must be considered to qualify as such, partly because forfeitures have historically been understood as punishment and more importantly because no remedial purpose underlay the sanction the statute created. Merely compensating the Government for its costs, as in Halper, could not justify the forfeiture scheme because "[t]he value of the conveyances and real property forfeitable under §§ 881(a)(4) and (a)(7) . . . can vary so dramatically that any relationship between the Government's actual costs and the amount of the sanction is merely coincidental." 509 U. S., at 622, n. 14. Accordingly, we held that any forfeiture was subject to the constraints of the Excessive Fines Clause of the Eighth Amendment.
The majority implies that Austin `s "categorical approach" is somehow suspect as an application of double jeopardy jurisprudence, ante, at 286-287, but Kurth Ranch definitively refutes that suggestion. The sanction there was a tax imposed on marijuana and applied to a taxpayer who had already been prosecuted for ownership of the drugs sought to be taxed. Again applying Halper `s definition of punishment, see 511 U. S., at 779-780, we considered the nature of the tax, focusing on several unusual features that distinguished it from ordinary revenue-raising provisions, and concluded
The claim that Halper `s "case-by-case" method is "impossible to apply" to forfeitures or taxes, ante, at 284, 285, thus misses the point. It is true that since fixed penalties can serve only one remedial end (compensation), it is easy to determine whether a particular fine is punitive in application. Forfeitures and taxes, generally speaking, may have a number of remedial rationales. But to decide if a sanction is punitive, one need only examine each claimed remedial interest and determine whether the sanction actually promotes it. Many of our cases have followed just such an approach, regardless of whether any nonpunitive purpose can be "quantif[ied]," ante, at 284. See, e. g., Austin; One 1958 Plymouth Sedan. The majority itself embarks on such an inquiry in Part II—C of its opinion. Furthermore, even in the context of forfeitures and taxes, nothing prevents a court from deciding that although a sanction is designed to be remedial, its application in a particular case is so extreme as to constitute punishment. Austin, 509 U. S., at 608, n. 4.
Remarkably, the Court today stands Austin on its head— a decision rendered only three years ago, with unanimity on
First, the Court supposes that forfeiture of respondent's house is remedial in nature because it was an instrumentality of a drug crime. It is perfectly conceivable that certain kinds of instruments used in the commission of crimes could be forfeited for remedial purposes. Items whose principal use is illegal—for example, the distillery in Various Items — might be thus forfeitable. But it is difficult to understand how a house in which marijuana was found helped to substantially "facilitate" a narcotics offense, or how forfeiture of that house will meaningfully thwart the drug trade. In Austin, we rejected the argument that a mobile home and body shop were "instruments" of drug trafficking simply because marijuana was sold out of them. I see no basis for a distinction here.
Second, the Court claims that the statute serves the purpose of deterrence, which helps to show that it is remedial rather than punitive in character. Ante, at 292. That statement cannot be squared with our precedents. Halper expressly
For good measure, the Court also rejects two considerations that persuaded the majority in Austin to find 21 U. S. C. § 881(a)(7) a punitive statute. The Court first asserts that the statute contains no scienter requirement and property may be forfeited summarily if no one files claim to it. Ante, at 291-292 (citing 19 U. S. C. § 1609). Property that is not claimed, however, is considered abandoned; it proves nothing that the Government is able to forfeit property that no one owns. Any time the Government seeks to forfeit claimed property, it must prove that the claimant is culpable, for the statute contains an express "innocent owner" exception. Today the Court finds the structure of the statute irrelevant, but Austin said that the exemption for innocent owners "makes [the statute] look more like punishment." 509 U. S., at 619. In United States v. United States Coin & Currency, 401 U.S. 715 (1971), the Court
Finally, the Court announces that the fact that the statute is "tied to criminal activity" is insufficient to render it punitive. Ante, at 292. Austin expressly relied on Congress' decision to "tie forfeiture directly to the commission of drug offenses" as evidence that it was intended to be punitive. 509 U. S., at 620.
The recurrent theme of the Court's opinion is that there is some mystical difference between in rem and in personam proceedings, such that only the latter can give rise to double jeopardy concerns. The Court claims that "[s]ince at least Various Items, " we have drawn this distinction for purposes of applying relevant constitutional provisions. Ante, at 283. That statement, however, is incorrect. We have repeatedly rejected the idea that the nature of the court's jurisdiction has any bearing on the constitutional protections that apply at a proceeding before it. "From the relevant constitutional standpoint, there is no difference between a man who `forfeits' $8,674 because he has used the money in illegal gambling activities and a man who pays a `criminal fine' of $8,674 as a result of the same course of conduct." Coin & Currency, 401 U. S., at 718. See also One 1958 Plymouth Sedan, 380 U. S., at 701, n. 11; Boyd, 116 U. S., at 638.
The notion that the label attached to the proceeding is dispositive runs contrary to the trend of our recent cases. In Halper we stated that "the labels `criminal' and `civil' are not of paramount importance" in determining whether a proceeding punishes an individual. 490 U. S., at 447. In Kurth Ranch we held that the Double Jeopardy Clause applies to punitive proceedings even if they are labeled a tax. Indeed, in reaching that conclusion, we followed a 1931 decision that noted that a tax statute might be considered punitive for double jeopardy purposes.
Even if the point had not been settled by prior decisions, common sense would dictate the result in this case. There is simply no rational basis for characterizing the seizure of this respondent's home as anything other than punishment for his crime. The house was neither proceeds nor contraband and its value had no relation to the Government's authority to seize it. Under the controlling statute an essential predicate for the forfeiture was proof that respondent
II
The Government also argues that the word "jeopardy" refers only to a criminal proceeding, and that our cases precluding two punishments for the same offense apply only to situations in which the first punishment was imposed after conviction of a crime. In this case the civil forfeiture proceeding antedated the filing of the criminal charge. Since the civil case was not a "jeopardy," the argument runs, the criminal case was the first, rather than the second, jeopardy. This argument is foreclosed by our decisions in Halper and Kurth Ranch.
Although the point was not expressly mentioned in either case, both holdings necessarily rested on the assumption that the civil proceeding in which the second punishment was imposed was a "jeopardy" within the meaning of the Fifth
III
The Government's third argument is that the civil forfeiture and the criminal proceeding did not involve the same offense. The Government relies principally on Blockburger v. United States, 284 U.S. 299 (1932), in which we held that for double jeopardy purposes two statutes define different offenses if "each provision requires proof of a fact which the other does not." Id., at 304. The application of that test would avoid any double jeopardy objection to a forfeiture followed by a prosecution—or a prosecution followed by a forfeiture—whenever the seizure could be supported without proof that the defendant committed a crime and the conviction did not require proof that the forfeited property had been used illegally.
Thus, if instead of forfeiting Ursery's home the Government had decided to forfeit his neighbor's property where the marijuana was grown, the Blockburger rule would avoid any double jeopardy objection to either the forfeiture or respondent's prosecution. In that scenario, the forfeiture could be supported without proof that Ursery violated the law and Ursery could be convicted without proof that he harvested the marijuana on property owned by someone else.
The rule does, however, bar this conviction because the elements that the Government was required to allege and prove to sustain the forfeiture of Ursery's home under § 881(a)(7) included each of the elements of the offense for which he was later convicted. As in Illinois v. Vitale, 447 U.S. 410 (1980), and Harris v. Oklahoma, 433 U.S. 682
Justice Kennedy joins the Court's opinion and therefore ought to agree with the majority that civil forfeitures do not constitute punishment for purposes of the Double Jeopardy Clause. In fact, however, he recognizes that "[f]orfeiture. . . punishes an owner by taking property involved in a crime." Ante, at 295. His real objection is that a forfeiture does not punish for the same offense as the underlying criminal conviction.
Justice Kennedy theorizes that civil forfeiture punishes for the misuse of property. Ante, at 294. It might be true that some forfeiture statutes are best described as creating a sanction for misuse, as opposed to (but perhaps in addition to) a sanction for the substantive criminal offense. But, again, this statute is not structured that way. Section 881(a)(7) incorporates the criminal offense itself as the predicate for the forfeiture. See 21 U. S. C. § 881(a)(7) (subjecting to forfeiture "[a]ll real property . . . which is used . . . to commit . . . a violation of this subchapter punishable by more than one year's imprisonment"). Furthermore, the innocent owner exemption in the same subsection provides that "no
IV
The final argument advanced by the Government is that the forfeiture and the criminal conviction should be treated as having occurred in the same proceeding because both were commenced before a final judgment was entered in either. Emphasizing the fact that the Double Jeopardy Clause, and particularly the prohibition against multiple punishments for the same offense, protects the defendant's legitimate expectation of finality in the original sentence, the Government maintains that such an expectation could not arise until after one proceeding was completed. Moreover, it argues, the civil and criminal sanctions "cannot be (and never have been) joined together in a single trial under our system of justice." Brief for United States 55.
This argument is unpersuasive because it is simply inaccurate to describe two separate proceedings as one.
* * *
One final example may illustrate the depth of my concern that the Court's treatment of our cases has cut deeply into a guarantee deemed fundamental by the Founders. The Court relies heavily on a few early decisions that involved the forfeiture of vessels whose entire mission was unlawful and on the Prohibition-era precedent sustaining the forfeiture of a distillery—a property that served no purpose other than the manufacture of illegal spirits. Notably none of those early cases involved the forfeiture of a home as a form
Accordingly, I respectfully dissent from the judgment in No. 95-345.
FootNotes
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union by Susan N. Herman, Gerard E. Lynch, and Steven R. Shapiro; for Americans for Effective Law Enforcement, Inc., et al. by Fred E. Inbau, Wayne W. Schmidt, James P. Manak, Richard M. Weintraub, and Bernard J. Farber; for the National Association of Criminal Defense Lawyers by Richard J. Troberman and David B. Smith; and for Advocates for Highway and Auto Safety et al. by Henry M. Jasny.
Because we conclude that the civil forfeitures involved in these cases do not constitute punishment under the Double Jeopardy Clause, see infra, at 292, we do not address those three arguments in this opinion.
The problem with Justice Stevens' interpretation of Halper, of course, and therefore with his entire argument, is that Halper didnot announce two rules. Nowhere in Halper does the Court set forth two distinct rules or purport to apply a two-step analysis.Justice Stevens finds his "general rule" in a dictum from Halper: "`[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment.' " Post, at 306, quoting United States v. Halper, 490 U.S. 435, 448 (1989). But the discussion immediately following that dictum makes clear that it states not a new and separate test for whether a sanction is a punishment, but rather only a rephrasing of Justice Stevens' "narrower" rule, i. e., the rule requiring an "accounting of the Government's damages and costs." Id., at 449. "We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished . . . may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.
"We acknowledge that this inquiry will not be an exact pursuit. In our decided cases we have noted that the precise amount of the Government's damages and costs may prove to be difficult, if not impossible, to ascertain.. . . [I]t would be difficult if not impossible in many cases for a court to determine the precise dollar figure at which a civil sanction has accomplished its remedial purpose of making the Government whole, but beyond which the sanction takes on the quality of punishment." Id., at 448-449 (emphasis added); see also id., at 449-451.
The "general rule" discovered by Justice Stevens in Halper would supplant, not mimic, see post, at 306, the rule of United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), and One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972). Whether a particular sanction "cannot fairly be said solely to serve a remedial purpose" is an inquiry radically different from that we have traditionally employed in order to determine whether, as a categorical matter, a civil sanction is subject to the Double Jeopardy Clause. Yet nowhere in Halper does the Court purport to make such a sweeping change in the law, instead emphasizing repeatedly the narrow scope of its decision. Halper, supra, at 449 (announcing rule for "the rare case"). If the "general rule" of Justice Stevens were applied literally, then virtually every sanction would be declared to be a punishment: It is hard to imagine a sanction that has no punitive aspect whatsoever. Justice Stevens' interpretation of Halper is both contrary to the decision itself and would create an unworkable rule inconsistent with well-established precedent.
"§ 881. Forfeitures
"(a) Subject property
"The following shall be subject to forfeiture to the United States and no property right shall exist in them:
. . . . .
"(7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner." § 881(a)(7).
"I am disturbed by the breadth of new civil forfeiture statutes such as 21 U. S. C. § 881(a)(7), which subjects to forfeiture all real property that is used, or intended to be used, in the commission, or even the facilitation, of a federal drug offense. As Justice O'Connor points out, . . . since the Civil War we have upheld statutes allowing for the civil forfeiture of real property. A strong argument can be made, however, that § 881(a)(7) is so broad that it differs not only in degree, but in kind, from its historical antecedents. . . . Indeed, it is unclear whether the central theory behind in rem forfeiture, the fiction `that the thing is primarily considered the offender,' J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 511 (1921), can fully justify the immense scope of § 881(a)(7). Under this provision, `large tracts of land [and any improvements thereon] which have no connection with crime other than being the location where a drug transaction occurred,' Brief for Respondents 20, are subject to forfeiture. It is difficult to see how such real property is necessarily in any sense `guilty' of an offense, as could reasonably be argued of, for example, the distillery in Dobbins's Distillery v. United States, 96 U.S. 395 (1878), or the pirate vessel in Harmony v. United States, 2 How. 210 (1844). Given that current practice under § 881(a)(7) appears to be far removed from the legal fiction upon which the civil forfeiture doctrine is based, it may be necessary—in an appropriate case—to reevaluate our generally deferential approach to legislative judgments in this area of civil forfeiture." United States v. James Daniel Good Real Property, 510 U. S.43, 81-82 (1993) (opinion concurring in part and dissenting in part) (footnotes omitted).
"But where the owner of the property has been admitted as a claimant, we cannot see the force of this distinction; nor can we assent to the proposition that the proceeding is not, in effect, a proceeding against the owner of the property, as well as against the goods; for it is his breach of the laws which has to be proved to establish the forfeiture, and it is his property which is sought to be forfeited . . . . In the words of a great judge, `Goods, as goods, cannot offend, forfeit, unlade, pay duties, or the like, but men whose goods they are.'
"
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