People v. P.S.

CHIEF JUSTICE HEIPLE, dissenting:

I agree with the majority’s conclusion that the fifth amendment of the United States Constitution, as interpreted by the United States Supreme Court, does not prohibit the prosecution of defendant Kimery for unlawful possession of a controlled substance following the forfeiture of his automobile to the State. Because I believe, however, that this determination does not end the inquiry we must conduct as Illinois’ highest court, I respectfully dissent.

Article I, section 10, of the Illinois Constitution provides that "[n]o person shall *** be twice put in jeopardy for the same offense.” Ill. Const. 1970, art. I, § 10. The majority holds that this provision should be interpreted "in a manner that is consistent with the United States Supreme Court’s interpretation of the double jeopardy clause of the fifth amendment.” 175 Ill. 2d at 89. I do not believe there is any persuasive justification for this holding. No one would suggest that the United States Supreme Court is bound to interpret provisions of the federal Constitution in a manner that is consistent with this court’s interpretation of similar provisions of the Illinois Constitution. As I have stated previously, I believe the converse of such a suggestion to be equally insupportable. See People v. Mitchell, 165 Ill. 2d 211, 233-35 (1995) (Heiple, J., dissenting).

The Illinois Bill of Rights, contained in article I of the Illinois Constitution, was enacted by citizens of this state to protect themselves against unwarranted deprivation of their lives, liberty, and property by the state’s government. The most recent version of the state constitution was ratified by the people in 1970. At that time, nearly all of the provisions of the United States Constitution’s Bill of Rights had been construed by the United States Supreme Court to constrain state governments as well as the federal government. The Illinois Bill of Rights must therefore have been intended to serve as an additional protection against abuses of power by state government, supplemental to the safeguards provided by the United States Constitution. In light of this fact, I consider it a dereliction of our duties as Illinois judges to delegate the function of interpreting our state constitution to the United States Supreme Court in the manner dictated by the majority. Rather, I believe that our oaths of office require "that the seven justices of this court *** bring to bear on every important constitutional issue their independent resources of wisdom, judgment, and experience.” People ex rel. Daley v. Joyce, 126 Ill. 2d 209, 226 (1988) (Clark, J., concurring).

Applying this interpretive approach, I would hold that prosecuting defendant for unlawful possession of a controlled substance following the forfeiture of the automobile which was allegedly used to facilitate that offense violates article I, section 10, of the Illinois Constitution. Initially, I note that I disagree with the majority that defendant has waived this issue. Defendant contended, both in the circuit court and on appeal, that his prosecution violated the state constitution. Moreover, he was not afforded an opportunity to rebrief this argument upon remand of this case from the United States Supreme Court. I believe we therefore have a responsibility to address the issue.

The plain wording of section 10 prohibits putting a person in jeopardy twice for the same offense. The determinative question is thus whether the forfeiture of defendant’s automobile to the state based on the vehicle’s alleged use in facilitating a crime constitutes putting defendant in jeopardy for the commission of that crime. If it does, the state is barred from conducting a separate proceeding that also puts defendant in jeopardy for that crime.

I believe that the forfeiture which the state effected here clearly put defendant in jeopardy for an offense that was the same as that for which he was later prosecuted. The Illinois Constitution prohibits the undue deprivation not only of a person’s life and liberty, but also of his property. Ill. Const. 1970, art. I, § 2. A proceeding brought to deprive a person of property based on his commission of a crime thus puts him "in jeopardy” for that crime just as surely as does a proceeding to deprive him of liberty. Likewise, it is clear that the two instances of jeopardy here were directed at the "same offense,” because defendant was charged with committing only one illegal act, namely, unlawful possession of a controlled substance. But for the commission of this offense, there was no basis for the forfeiture, since " '[t]here is nothing even remotely criminal in possessing an automobile.’ ” Austin v. United States, 509 U.S. 602, 621 , 125 L. Ed. 2d 488, 505 , 113 S. Ct. 2801, 2811 (1993), quoting One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699 , 14 L. Ed. 2d 170, 174 , 85 S. Ct. 1246, 1250 (1965).

I am not persuaded by the majority’s arguments that a forfeiture such as this does not place a defendant in jeopardy for commission of an offense. First, I consider it irrelevant that the legislature may have intended the forfeiture to be civil rather than criminal in character. 175 Ill. 2d at 86. If an action by the government violates a constitutional prohibition, no amount of evidence manifesting the legislature’s purportedly benign intent in authorizing that action can render the action constitutional. I consider it similarly irrelevant, in assessing the constitutionality of a statute under our state constitution, that the legislature has expressed an intention that statutory construction of the provision comport with the interpretation of similar statutes by the federal courts. See 175 Ill. 2d at 88-89.

I am also not persuaded by the majority’s assertion that "important nonpunitive goals” of the instant forfeiture immunize it from constitutional challenge under double jeopardy principles. See 175 Ill. 2d at 87. In our prior opinion in this case, we held that a forfeiture of property violates double jeopardy if it serves even in part to punish the defendant. In re P.S., 169 Ill. 2d 260, 282 (1996). We then proceeded to hold that various punitive aspects of the forfeiture, including its avowedly deterrent aim, its "innocent owner” defense, and its dependence on an underlying criminal violation, rendered it subject to double jeopardy constraints. P.S., 169 Ill. 2d at 283 . I believed this analysis to be persuasive at the time our previous opinion was issued, and I remain persuaded despite the United States Supreme Court’s contrary interpretation of the United States Constitution.

In People v. 1988 Mercury Cougar, 154 Ill. 2d 27 (1992), this court held that the forfeiture of a vehicle in a proceeding separate from a prosecution for an underlying drug offense does not constitute double jeopardy. That opinion, however, interpreted federal precedent only, and did not specifically address the applicability of article I, section 10, of the Illinois Constitution. In People v. Levin, 157 Ill. 2d 138 (1993), we refused to interpret article 1, section 10, more broadly than the United States Constitution’s double jeopardy provision. Levin, however, dealt only with the application of double jeopardy principles to noncapital sentencing procedures. Levin, 157 Ill. 2d at 160 . I believe that striking the proper balance between law enforcement and individual liberty in the ever-escalating "war on drugs” now requires that this court exercise its independent judgment in declaring unconstitutional forfeitures conducted in the manner evidenced here. See People v. Mitchell, 165 Ill. 2d 211, 233-35 (1995) (Heiple, J., dissenting).

Because I believe that defendant has been twice put in jeopardy for the same offense in violation of the Illinois Constitution, I would affirm the judgment of the appellate court.

JUSTICE NICKELS joins in this dissent.