Double jeopardy dilemma Drug war: Is forfeiture of property an unconstitutional additional punishment?

April 23, 1996

THE GOVERNMENT'S war on drugs has precious little success to show for all its efforts. Now one of law enforcement's favored weapons against drug abuse faces scrutiny by the Supreme Court.

Can the government force people convicted of drug trafficking crimes to forfeit their property? The question springs from a provision in the Constitution assuring that no "person be subject for the same offense to be twice put in jeopardy of life or limb." This provision, known as the double-jeopardy clause, has been interpreted by the Supreme Court to mean protection against a second prosecution for the same offense or against multiple punishments for the same offense.

The court has before it two cases testing whether law enforcement officers can continue to use the double-pronged strategy of pressing charges for criminal conduct while also seeking civil penalties requiring the forfeiture of property. To make this question particularly tricky, the justices must contend with their 1993 ruling that drug dealers may not be forced to forfeit so much property as to violate the Eighth Amendment's ban on excessive fines.

In arguments last week, opposing lawyers elicited enough probing questions from justices to indicate that while there may be concern about rationalizing criminal prosecutions and civil forfeitures as merely one punishment, there is also concern about depriving the government of a useful tool for countering criminal behavior. As Justice Ruth Bader Ginsburg noted, administrative proceedings that could lead to fines and loss of professional licenses are conducted in tandem with criminal prosecution for the same conduct.

Moreover, the forfeiture of property involved in criminal activity has deep roots in English common law. But does the ability of the government to seize the house of a man convicted of drying marijuana stretch that concept to the breaking point?

Justices are rightly troubled by the prospect of hampering the government in its efforts to fight drugs or enforce other laws. They also have a duty to uphold the Constitution and to make sense of its provisions in the everyday life of the nation. The dilemmas posed by the protection against double jeopardy will test them on both fronts.

Pub Date: 4/23/96

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