2-pronged penalty approach challenged Justices to weigh use of forfeiture plus criminal charges

January 13, 1996|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The Supreme Court, taking on an issue of rising importance to federal and state prosecutors, agreed yesterday to rule on the constitutionality of a commonly used one-two punch against criminals.

That approach involves pursuing criminal charges against an individual, in addition to seizing that person's property in a separate proceeding, to try to make sure that criminals lose not only their personal freedom but also their crime-related assets.

A ruling could have an effect far beyond drug prosecutions, a favorite field for the one-two approach. It also could affect any kind of additional punishment that government imposes -- such as nullifying or suspending a driver's license -- if criminal charges have been or will be brought.

Building on one of the two lower-court rulings that the Supreme Court will review, defense lawyers have been challenging a variety of one-two actions against their clients.

They have tried to fight off drunken-driving prosecutions after drivers' licenses have been revoked, criminal prosecutions of licensed professionals such as doctors and lawyers after their licenses have been withdrawn or suspended, and criminal convictions of prison inmates after they have been punished within the prison for breaking the rules.

The cases before the Supreme Court, and the sequels developing in cases across the nation, test whether noncriminal forms of punishment linked with separate criminal prosecutions amount to unconstitutional "double jeopardy."

The Constitution's Fifth Amendment bars multiple punishments. One of the key issues in the new cases is whether a noncriminal forfeiture of property amounts to punishment at all.

On that issue, Maryland's Court of Appeals ruled in October that it does not violate the ban on double jeopardy to suspend the license of a driver and then prosecute that person for drunken driving. The license suspension, the state court said, is done not to punish but to remedy the safety risk of having the driver on the road.

The Supreme Court took on the double-jeopardy issue in two drug cases. One involves the seizure of property and about $405,000 in cash from people convicted of drug trafficking and money laundering in California and Nevada. The other involves the seizure of a Michigan farmhouse that was used to process illegal drugs, followed by the filing of criminal charges against the owner of the house.

In both cases, federal appeals courts ruled that the one-two punishment would be unconstitutional. The Supreme Court is expected to rule on the cases during the current term, with a decision by summer.

Acting on another forfeiture issue yesterday, the court agreed to decide whether someone accused of leaving the country to avoid a criminal charge has a constitutional right to challenge the seizure of property that the government believes was used in the crime.

A federal appeals court ruled that, by becoming a fugitive, the individual loses all right to challenge the forfeiture.

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