Forfeiture as a law-enforcement tool No double jeopardy: Seizure of property is not unconstitutional punishment.

June 30, 1996

THE FIFTH AMENDMENT'S prohibition against double jeopardy -- that no "person be subject for the same offense to be twice put in jeopardy of life or limb" -- has been interpreted to mean protection against a second prosecution for the same offense or against multiple punishments for the same offense. But does forfeiting property to the government, a favored strategy of prosecutors involved in drug cases, constitute the kind of punishment prohibited by the Constitution?

That question has elicited a string of appellate court rulings that amount to a complex and sometimes conflicting approach to this question. Last week the Supreme Court issued a clear answer: Civil proceedings in which government seizes property related to criminal behavior does not amount to an unconstitutional additional punishment.

For purposes of the double jeopardy provision, forfeitures were not punishments but civil actions, the court majority said. As Chief Justice William Rehnquist wrote, "Since the earliest years of this Nation, Congress has authorized the Government to seek parallel . . . civil forfeiture actions and criminal prosecutions FTC based upon the same underlying events."

The eight-judge majority had no trouble reconciling this ruling with a 1993 decision which said that drug dealers may not be forced to forfeit so much property as to violate the Eighth Amendment's ban on excessive fines. The chief justice argued that the court had never treated the excessive-fines prohibition as "parallel to, or even related to, the Double Jeopardy Clause of the Fifth Amendment."

The ruling is a clear victory for prosecutors. Can these seizures be excessive? Justice John Paul Stevens thinks so. In one of the cases prompting this decision, a man convicted of manufacturing marijuana was also forced to pay the state the value of his house in order to prevent its forfeiture.

Justice Stevens, the lone dissenter, argued that requiring forfeiture of the house was clearly a punitive measure. And he warned against excesses, noting that during Prohibition the majority's reasoning in this case could have empowered Congress to authorize "the forfeiture of every home in which alcoholic beverages were consumed."

Clearly, the power of forfeiture, wisely used, can serve a useful purpose. But it is equally evident that Justice Stevens has sounded an important cautionary note. Excesses in the use of these powers could produce grave injustice.

` Pub date: 06/30/96

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