United States v. Ursery

United States Supreme Court

516 U.S. 1070, 116 S.Ct. 762, 133 L.Ed.2d 707 (1996)

 

 

Chief Justice Rehnquist delivered the opinion of the Court.

 

            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 not constitute “punishment” for purposes of the Double Jeopardy Clause.

 

I.

 

            … Michigan Police found marijuana growing adjacent to respondent Guy Ursery’s house, and discovered marijuana seeds, stems, stalks, and a growlight 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. Section(s) 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 Section(s) 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. … 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 Section(s) 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. Section(s) 841(a)(1).

 

            … 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. Section(s) 846; conspiracy to launder monetary instruments, in violation of 18 U. S. C. Section(s) 371; and numerous counts of money laundering, in violation of Section(s) 1956. The District Court sentenced Arlt to life in prison and a 10-year term of supervised release, and imposed a fine of $250,000. Wren was sentenced to life imprisonment and a 5-year term of supervised release.

 

            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. Section(s) 981(a)(1)(A), which provides that “[a]ny property . . . involved in a transaction or attempted transaction in violation of” Section(s) 1956 (the money-laundering statute) “is subject to forfeiture to the United States”; and under 21 U. S. C. Section(s) 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). 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 Section(s) 981(a)(1)(A) and Section(s) 881(a)(6) always constitute “punishment.” We granted the Government’s petition for certiorari in each of the two cases, and we now reverse. …

 

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.” … The Clause serves the function of preventing both “successive punishments and . . . successive prosecutions.” … The protection against multiple punishments prohibits the Government from “‘punishing twice, or attempting a second time to punish criminally for the same offense.’” …

 

            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. … 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.” … 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:

 

            “[This] forfeiture proceeding . . . is in rem. It is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient. In a criminal prosecution it is the wrongdoer in person who is proceeded against, convicted, and punished. The forfeiture is no part of the punishment for the criminal offense. The provision of the Fifth Amendment to the Constitution in respect of double jeopardy does not apply.” …

 

            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. …

 

            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.” … 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 the right of forfeiture was “created by statute, in rem, cognizable on the revenue side of the exchequer,” … it never had suggested that the Constitution prohibited for statutory civil forfeiture what was required for common-law civil forfeiture. For the Various Items Court to have held that the forfeiture was prohibited by the prior criminal proceeding would have been directly contrary to the common-law rule, and would have called into question the constitutionality of forfeiture statutes thought constitutional for over a century. …

 

            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 United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), the owner of the defendant weapons was acquitted of charges of dealing firearms without a license. The Government then brought a forfeiture action against the firearms under 18 U. S. C. Section(s) 924(d), alleging that they were used or were intended to be used in violation of federal law.

 

            In another unanimous decision, we held that the forfeiture was not barred by the prior criminal proceeding. …

 

B

 

            Our cases reviewing civil forfeitures under the Double Jeopardy Clause adhere to a remarkably consistent theme. Though the … 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. …

 

            In the case 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.”… 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.” … 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.” … 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 falseclaims statute, 18 U. S. C. Section(s) 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. Section(s) 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 Section(s) 3729, which then provided for liability in the amount of $2,000 per violation, double the Government’s actual damages, and court costs. The court concluded that imposing the full civil penalty would constitute a second punishment for Halper’s already-punished criminal offense, however, and therefore reduced Halper’s liability to double the actual damages suffered by the Government and the costs of the civil action. The Government directly appealed that decision to this Court.

 

            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.” … 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.” … 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. …

 

            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 day, police searched his mobile home and body shop. Their search revealed small amounts of marijuana and cocaine, a handgun, drug paraphernalia, and almost $5,000 in cash. Austin was charged with one count of possessing cocaine with intent to distribute, to which he pleaded guilty. The Government then initiated a civil forfeiture proceeding against Austin’s mobile home and auto shop, contending that they had been “used” or were “intended for use” in the commission of a drug offense. … Austin contested the forfeiture on the ground of the Excessive Fines Clause, but the District Court and the Court of Appeals held the forfeiture constitutional.

 

            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. Section(s) 881(a)(4) and (a)(7).” … 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 [the] forfeiture … constituted “punishment” for the purposes of the Eighth Amendment. … In an effort to answer that question, we briefly reviewed the history of civil forfeiture both in this country and in England, … 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 [Section(s) 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.” …

 

            In Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767 (1994), 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 the marijuana which was taxed. We first established that the fact that Montana had labeled the civil sanction a “tax” did not end our analysis. We then turned to consider whether the tax was so punitive as to constitute a punishment subject to the Double Jeopardy Clause. Several differences between the marijuana tax imposed by Montana and the typical revenue-raising tax were readily apparent. The Montana tax was unique in that it was conditioned on the commission of a crime and was imposed only after the taxpayer had been arrested: thus, only a person charged with a criminal offense was subject to the tax. We also noted that the taxpayer did not own or possess the taxed marijuana at the time that the tax was imposed. From these differences, we determined that the tax was motivated by a “‘penal and prohibitory intent rather than the gathering of revenue.’” … Concluding that the Montana tax proceeding “was the functional equivalent of a successive criminal prosecution,” we affirmed the Court of Appeals’ judgment barring the tax. …

 

            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 … 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. …

 

            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 Government as a result of a defendant’s conduct. … The civil penalty involved in Halper, for example, provided for a fixed monetary penalty for each false claim count on which the defendant was convicted in the criminal proceeding. Whether a “fixed-penalty provision” that seeks to compensate the Government for harm it has suffered is “so extreme” and “so divorced” from the penalty’s nonpunitive purpose of compensating the Government as to be a punishment may be determined by balancing the Government’s harm against the size of the penalty. Civil forfeitures, in contrast to civil penalties, are designed to do more than simply compensate the Government. Forfeitures serve a variety of purposes, but are designed primarily to confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct. Though it may be possible to quantify the value of the property forfeited, it is virtually impossible to quantify, even approximately, the nonpunitive purposes served by a particular civil forfeiture. Hence, it is practically difficult to determine whether a particular forfeiture bears no rational relationship to the nonpunitive purposes of that forfeiture. Quite simply, the case-by-case balancing test set forth in Halper, in which a court must compare the harm suffered by the Government against the size of the penalty imposed, is inapplicable to civil forfeiture. 

 

            We recognized as much in Kurth Ranch. In that case, the Court expressly disclaimed reliance upon Halper, finding that its casespecific approach was impossible to apply outside the context of a fixed civil-penalty provision. Reviewing the Montana marijuana tax, we held that because “tax statutes serve a purpose quite different from civil penalties, . . . Halper’s method of determining whether the exaction was remedial or punitive simply does not work in the case of a tax statute.” … This is not to say that there is no occasion for analysis of the Government’s harm. 89 Firearms makes clear the relevance of an evaluation of the harms alleged. The point is simply that Halper’s case-specific approach is inapplicable to civil forfeitures.

 

            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.” … 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.” …

 

            We acknowledged in Austin that our categorical approach under the Excessive Fines Clause was wholly distinct from the case-by-case approach of Halper, and we explained that the difference in approach was based in a significant difference between the purposes of our analysis under each constitutional provision. … It is unnecessary in a case under the Excessive Fines Clause to inquire at a preliminary stage whether the civil sanction imposed in that particular case is totally inconsistent with any remedial goal. Because the second stage of inquiry under the Excessive Fines Clause asks whether the particular sanction in question is so large as to be “excessive,” … a preliminary-stage inquiry that focused on the disproportionality of a particular sanction would be duplicative of the excessiveness analysis that would follow. … Forfeitures effected under 21 U. S. C. Section(s) 881(a)(4) and (a)(7) are subject to review for excessiveness under the Eighth Amendment after Austin; this does not mean, however, that those forfeitures are so punitive as to constitute punishment for the purposes of double jeopardy. The holding of Austin was limited to the Excessive Fines Clause of the Eighth Amendment, and we decline to import the analysis of Austin into our double jeopardy jurisprudence.

 

            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 forfeiture proceedings, and this Court consistently has found civil forfeitures not to constitute punishment under the Double Jeopardy Clause. It would have been quite remarkable for this Court both to have held unconstitutional a well-established practice, and to have overruled a long line of precedent, without having even suggested that it was doing so. Halper dealt with in personam civil penalties under the Double Jeopardy Clause; Kurth Ranch with a tax proceeding under the Double Jeopardy Clause; and Austin with civil forfeitures under the Excessive Fines Clause. None of those cases dealt with the subject of this case: in rem civil forfeitures for purposes of the Double Jeopardy Clause.

 

C.

 

            We turn now to consider the forfeitures in these cases… 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. Section(s) 881, and 18 U. S. C. Section(s) 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. …

 

            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].” … Because forfeiture proceedings under the customs laws are in rem, … it is clear that Congress intended that a forfeiture under Section(s) 881 or Section(s) 981, like the forfeiture reviewed in 89 Firearms, would be a proceeding in rem. Congress specifically structured these forfeitures to be impersonal by targeting the property itself. “In contrast to the in personam nature of criminal actions, actions in rem have traditionally been viewed as civil proceedings, with jurisdiction dependent upon seizure of a physical object.” …

 

            Moving to the second stage of our analysis, we find that there is little evidence, much less the “‘clearest proof’” that we require, … suggesting that forfeiture proceedings under 21 U. S. C. Section(s) 881(a)(6) and (a)(7), and 19 U. S. C. Section(s) 981(a)(1)(A), are so punitive in form and effect as to render them criminal despite Congress’ intent to the contrary. …

 

            Most significant is that Section(s) 981(a)(1)(A), and Section(s) 881(a)(6) and (a)(7), while perhaps having certain punitive aspects, serve important nonpunitive goals. Title 21 U. S. C. Section(s) 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. …

 

            … To the extent that Section(s) 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.

 

… By itself, the fact that a forfeiture statute has some connection to a criminal violation is far from the “clearest proof” necessary to show that a proceeding is criminal.

 

            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 … and of the Court of Appeals for the Ninth Circuit … are accordingly reversed.

 

 

Justice Kennedy, concurring. [omitted]

 

 

Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.

 

            In my view, the Double Jeopardy Clause prohibits successive prosecution, not successive punishment. … Civil forfeiture proceedings of the sort at issue here are not criminal prosecutions…

 

 

Justice Stevens, concurring in the judgment in part and dissenting in part.

 

            … 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 response, this Court has reaffirmed the fundamental proposition that all forfeitures must be accomplished within the constraints set by the Constitution. … This Term the Court has begun dismantling the protections it so recently erected. In Bennis v. Michigan, 517 U. S. 1163 (1996), the Court held that officials may confiscate an innocent person’s automobile. And today, for the first time it upholds the forfeiture of a person’s home. On the way to its surprising conclusion that the owner is not punished by the loss of his residence, the Court repeatedly professes its adherence to tradition and time-honored practice. As I discuss below, however, the decision shows a stunning disregard not only for modern precedents but for our older ones as well.

 

            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.” … 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.” … The Court asserts that this rule has received “remarkably consistent” application and was “reaffirmed” by a pair of cases in 1972 and 1984. … 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 nearly six decades. Neither of the two cases that supposedly “affirmed” Various Items-One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972) (per curiam), and United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984)-even mentioned it.

 

            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].” … 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. … 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. … But the Court creates the appearance that we endorsed its interpretation of 89 Firearms and Emerald Cut Stones by quoting selectively from Austin. …

 

            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.” …

 

            That possibility was not merely speculative. The Court had already decided that other constitutional protections applied to forfeitures that had a punitive element. …

 

            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. Section(s) 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. …

 

            It is the majority, however, that has “misread” Halper, Austin, and Kurth Ranch by artificially cabining each to a separate sphere, … 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 the jurisprudence of both the Excessive Fines Clause and the Double Jeopardy Clause. …

 

            The Court expends a great deal of effort attempting to distinguish Austin away as purely an excessive fines case. The Court states, for example, that it is “difficult to see” how one would apply the “rule of Halper” to a civil forfeiture such as was present in Austin. … But the Court conflates the two different rules that Halper announced. As discussed above, Austin expressly quoted Halper and followed its general rule that a sanction should be characterized as “punishment” if it serves any punitive end. … It relegated to a footnote Halper’s narrower rule-the one for the “rare case,” which requires an accounting of the Government’s damages and costs-because it had already decided that the statute was of a punitive character. …That approach was perfectly appropriate. There is no need to determine whether a statute that is punitive by design has a punitive effect when applied in the individual case. Halper is entirely consistent with Austin, because it determined first that the sanction there generally did not have a punitive character before it considered whether some applications might be punitive nonetheless. 

 

            The majority implies that Austin’s “categorical approach” is somehow suspect as an application of double jeopardy jurisprudence, … 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, … we considered the nature of the tax, focusing on several unusual features that distinguished it from ordinary revenue-raising provisions, and concluded that it was motivated by a “penal and prohibitory intent.” … On that basis, we held that imposition of the tax after criminal prosecution of the taxpayer violated double jeopardy. The approach taken was thus identical to that followed in Austin. By considering and rejecting each of the asserted “remedial” interests served by the sanction, we reasoned that the tax had an “unmistakable punitive character” that rendered it punishment in all of its applications. …

 

            The claim that Halper’s “case-by-case” method is “impossible to apply” to forfeitures or taxes, … 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].” … 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. …

 

            In reaching the conclusion that the civil forfeiture at issue yielded punishment, the Austin Court surveyed the history of civil forfeitures at some length. That history is replete with expressions of the idea that forfeitures constitute punishment. …

 

            Remarkably, the Court today stands Austin on its head-a decision rendered only three years ago, with unanimity on the pertinent points-and concludes that Section(s) 881(a)(7) is remedial rather than punitive in character. Every reason Austin gave for treating Section(s) 881(a)(7) as punitive-the Court rejects or ignores. Every reason the Court provides for treating Section(s) 881(a)(7) as remedial-Austin rebuffed. The Court claims that its conclusion is consistent with decisions reviewing statutes “indistinguishable” “in most significant respects” from Section(s) 881(a)(7), ante, at 20, but ignores the fact that Austin reached the opposite conclusion as to the identical statute under review here.

 

            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. … That statement cannot be squared with our precedents. Halper expressly held, and Austin and Kurth Ranch reaffirmed, that “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” for purposes of the Double Jeopardy Clause. … “‘Retribution and deterrence are not legitimate nonpunitive governmental objectives.’” … To say otherwise is to renounce Halper’s central holding. If deterrence is a legitimate remedial rationale “distinct from” any punitive purpose, … then the $130,000 fine in Halper could not be condemned as excessive because it plainly served a powerful deterrent function. It was a premise of the Court’s analysis in that case that deterrence could not justify a penal sanction. As in Bennis v. Michigan, where the Court first announced this new view of deterrence, it simply ignores Halper without explanation or comment. …

 

            For good measure, the Court also rejects two considerations that persuaded the majority in Austin to find 21 U. S. C. Section(s) 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. … 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.” …

 

            Finally, the Court announces that the fact that the statute is “tied to criminal activity” is insufficient to render it punitive. … 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. …

 

            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. … 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.” … Most recently, in our application of Halper’s definition of punishment, we stated that “[w]e do not understand the Government to rely separately on the technical distinction between proceedings in rem and proceedings in personam, but we note that any such reliance would be misplaced.” …

 

            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. … 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. It is thus far too late in the day to contend that the label placed on a punitive proceeding determines whether it is covered by the Double Jeopardy Clause.

 

            The pedantic distinction between in rem and in personam actions is ultimately only a cover for the real basis for the Court’s decision: the idea that the property, not the owner, is being “punished” for offenses of which it is “guilty.” Although the Court prefers not to rely on this notorious fiction too blatantly, its repeated citations to Various Items make clear that the Court believes respondent’s home was “guilty” of the drug offenses with which he was charged. … On that rationale, of course, the case is easy. The owner of the property is not being punished when the Government confiscates it, just the property. The same sleight-of-hand would have worked in Austin, too: The owner of the property is not being excessively fined, just the property itself. Despite the Government’s heavy reliance on that fiction in Austin, we did not allow it to stand in the way of our holding that the seizure of property may punish the owner. 

 

            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 had used the property in connection with the commission of a crime. The forfeiture of this property was unquestionably “a penalty that had absolutely no correlation to any damages sustained by society or to the cost of enforcing the law.”…. As we unanimously recognized in Halper, formalistic distinctions that obscure the obvious practical consequences of governmental action disserve the “‘humane interests’” protected by the Double Jeopardy Clause. … Fidelity to both reason and precedent dictates the conclusion that this forfeiture was “punishment” for purposes of the Double Jeopardy Clause. 

 

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 Amendment. Otherwise there would have been no basis for concluding that the defendants had been “twice put in jeopardy” as the text of the Clause forbids. The prohibition against two such proceedings cannot depend on the order in which they are filed. …

 

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.” … 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 Section(s) 881(a)(7) included each of the elements of the offense for which he was later convicted. …

 

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.” …

 

            This argument is unpersuasive because it is simply inaccurate to describe two separate proceedings as one. I also cannot agree with the Government’s view that there is any procedural obstacle to including a punitive forfeiture in the final judgment entered in a criminal case. The sentencing proceeding does not commence until after the defendant has been found guilty, and I do not see why that proceeding should not encompass all of the punitive sanctions that are warranted by the conviction. Indeed, a draft of a proposed amendment to the Federal Rules of Criminal Procedure envisions precisely that procedure. … If, as we have already determined, the “civil” forfeitures pursuant to Section(s) 881(a)(7) are in fact punitive, a single judgment encompassing the entire punishment for the defendant’s offense is precisely what the Double Jeopardy Clause requires. Congress’ decision to create novel and additional penalties should not be permitted to eviscerate the protection against governmental overreaching embodied in the Double Jeopardy Clause. That protection has far deeper roots than the relatively recent enactments that have so dramatically expanded the sovereign’s power to forfeit private property.

 

            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 of punishment for misconduct that occurred therein. Consider how drastic the remedy would have been if Congress in 1931 had authorized the forfeiture of every home in which alcoholic beverages were consumed. Under the Court’s reasoning, I fear that the label “civil,” or perhaps “in rem,” would have been sufficient to avoid characterizing such forfeitures as “punitive” for purposes of the Double Jeopardy Clause. Our recent decisions in Halper, Austin, and Kurth Ranch, dictate a far different conclusion. I remain persuaded that those cases were correctly decided and should be followed today. …