Amicus Curiae Brief — United States v. Ursery

Supreme Court, U.S.

FILED

| | FEB 23 1996

) tg

Nos. 95-345 and 95-346 ee

In the

Supreme Court of the United States

October Term, 1995

UNITED STATES OF AMERICA,

Petitioner,

Vv.

GUY JEROME URSERY,

Respondent.

&

UNITED STATES OF AMERICA, a

Petitioner,

Vv.

FOUR HUNDRED FIVE THOUSAND, EIGHTY-NINE

DOLLARS AND TWENTY-THREE CENTS ($405,089.23)

IN UNITED STATES CURRENCY, ET AL.,

Respondent.

+

On Writ of Certiorari

To the United States Courts of Appeals

For the Ninth and Sixth Circu

@

BRIEF OF THE STATE OF CONNECTICUT, 47

STATES, AND THE COMMONWEALTH OF

PUERTO RICO AS AMICI CURIAE

IN SUPPORT OF PETITIONER

4

JOHN M. BAILEY

Chief State’s Attorney of Connecticut

* MARY H. LESSER

Assistant State’s Attorney

300 C rate Place

Rocky Hill, Connecticut 06067

(860) 258-5800

* Counsel of Record is,

[additional counsel listed on inside cover]

w\\

JEFF SESSIONS

State of Alabama

Bruce M. BOTELHO

State of Alaska

GRANT Woops

—

ery fpomonnm

WINSTON BRYANT

General

State of Arkansas

DANIEL E. LUNGREN

General

State of California

GALE A. NORTON

— General

State of Colorado

M. JANE BRADY

reap he

ROBERT A. BUTTERWORTH

anon’ Fonda:

MICHAEL J. BOWERS

rere: ano

MarGeRY S. BRONSTER

ae

ALAN G. LANCE

aa

Jim RYAN

State of finals

PAMELA CARTER

Site of Indians

Tom MILLER

sae of lowe

CARLA J. STOVALL

Suto of Kanan

A. B. CHANDLER III

Pavags Ponce

RICHARD P. IEYOUB

pascaps Pyne x se

ANDREW KETTERER

mena Ps ag

J. JOSEPH CURRAN, JR.

ed apont

SCOTT HARSHBARGER

Pvp bn = Aa

FRANK J. KELLEY

ares ove

Hupert H. Humpurey II!

ona A aml

MIKE MOORE

JoserH P. MAZUREK

Py: err

2. The forfeiture of property TABLE OF AUTHORITIES

which facilitates criminal

activity is also remedial.......... 22 Page

CASTS:

D This Court Should Reconsider s

Double Jeopardy Application To Civil

poe ed bod C86 o% obs TENE S 24 Abney v. United States,

Di eds seco caceesecee ss 18

GETS ccc cecceesesesestvsvevs 27

Austin v. United States,

DUPE, cocsccocectoceess passim

rv. United States,

"284 NS ¢'¢ 6 Gib e's'd'e'e bbe es cee 10

Breed v. Jones,

DPE ckceecococcetes USe 4, 24

Butler v. Py one-aed of Public

609 te 2d sn0de (La. '1992) : ERR w lc 6440 odo 12

Caplin & Drysdale v. United States,

DE cc cceeeeeeeseevococess 21

Coffey v. United States,

iE £6 64 obs sbGeet si deeese 20

Crist v. Bretz,

TEE cess coe eeeneeseeee 24

Crump v. Alabama Alcoholic

Control Bad. ,

No. 2940412, 1995 Ala. Civ. App.

LEED Gre Ges. 1, BFS) 2. ccc ccc ccccece 16

of Revenue v. Kurth Ranch,

iv

District Attorney of Kings

County v. ladarola,

623 N.Y.S.2d 999 (N.Y. Sup. Ct. 1995) ..... 16, 22

Freeman v. State,

611 So. 2d 1260 (Fla. Dist. Ct. App. 1992),

cert. denied, 114 S. Ct. 415 (1993) ...........

Helvering v. Mitchell,

SED Gels SOO CED 6 6 000.0 0 6b OSS SE dh 4, 24

Idaho Dept. of Law Enforcement By

and Through Cade v. Real Property

Located in Minidoka County,

885 P.2d 381 (Idaho 1994) .............. 1, 22

In re Dandridge,

614 So.2d 129 (La. Ct. App.),

cert. denied, 616 So. 2d 684 (La. 1993) ........

In re Gila County Juvenile

Delinquency Action

816 P.2d 950 (Ariz. Ct. App. 1991) ..........

In re One 1987 Toyota,

621 A.2d 796, 798 (Del. Super. Ct. 1992) ......

Jines v. Seiber,

549 N.E.2d 964 (Ill. App. Ct. 1990) ..........

Kennedy v. Mendoza-Marrtinez,

Fle Weed POO GERD 0 6 0 cb dees Cb OSes 5, 26

Kvitka v.. Board of Registration

in Medicine,

551 N.E.2d 915 (Mass.),

cert. denied, 498 U.S. 823 (1990) ............

v

Loui v. Board of Medical Examiners,

889 P.2d 705 (Haw. 1995) ........22 ee eees 13

Mcintyre v. Miller,

436 S.E.2d 2 (Ga. 1993) ..... cc cece cee ees 14

Missouri v. Hunter,

— 8 OF re ee 25

Moser v. Richmond County Bd. of Comm'rs,

428 S.E.2d 71 (Ga. 1993)... ... 2.2. e ee eens 14

No Illegal Points, Citizens

for Drivers Rights, Inc. v. Florio,

624 A.2d 981 (N.J. Super. Ct. App. Div.),

cert. denied, 634 A.2d 526 (N.J. 1993) ........ 15

One Lot Emerald Cut Stones

and One Ring v. United States,

DE ITED coccc ccc cece oeseee 20, 23

People v. Dvorak,

658 N.E.2d 869 (Ill. App. Ct. 1995) .......... 17

People v. Hellis,

536 N.W.2d 587 (Mich. Ct. App.),

appeal denied, 539 N.W.2d 504 (Mich. 1995) 26

People v. Marmon,

903 P.2d 651 (Colo. 1995) ....... 22 eee eee 13

Purcell v. United States,

- Fe | of tole | | er ae a 14

Rex Trailer Co. v. United States,

- SRM fF). PPPS rrre rere eee ee 21

vi

Roach Enters., Inc. v. License Appeal Comm’n,

Nos. 1-95-1446, 1-95-1555,

1996 Ill. App. LEXIS 9 (Jan. 12, _ rere

Schillerstrom v. State,

885 P.2d 156 (Ariz. Ct. App. 1994),

cert. denied, No. CV-94-0396-PR

ei... ener ere

SEC v. Bilzerian,

29 F.3d 689 (D.C. Cir. eR OE ert Soe

Small v. Commonwealth,

402 S.E.2d 927 (Va. Ct. App. 1991) (en banc) .. .

State v. :

614 A.2d 401, 403 n.4 (Conn. 1992),

cert. denied, 507 U.S. 972 A er a 18

State v. ,

662 A.2d 955 (N.H. tb & we kee wit oe ae 12

State v. Davis,

903 P.2d 940 (Utah Ct. — FRR a 18

State v. Duerr,

No. 14871, (Conn. App. Ct.

filed December 29, 1995) ................. 14

State v. Gustafson,

No. 94 C.A. 232, 1995 Ohio App.

LEXIS 2790 (Jan. 27, 1995) ............... 12

State v. Hanson,

Nos. C1-95-531, C5-95-564,

1996 Minn. LEXIS 8 (Jan. fF SO eer 12

U.S.L.W. 3510

S. Jan. 1

os

(U.

v. Maze,

P.2d 1169 (Kan. Ct. App. 1992) .......... 12

State v. McKenzie,

No. C3-95-1258, 1996 Minn.

Re, I cg wc cc ec cc eee 14

State v. Miller,

No. 2-94-32, 1995 Ohio App.

LEXIS 1971 (May 12, 1995)

BE

appeal allowed, 655 N.E.2d 185 (Ohio 1995) ..... 12

State v. Millett,

No. And-95-166,

1996 Me. LEXIS 7 (Jan. 5, 1996)............ 14

State v. Nichols,

819 P.2d 995 (Ariz. Ct. App. 1991) .......... 12

State v. Reetz, No. CA A89387

(Ore. Ct. App. filed July 24, 1995) ........... 16

State v. Rosenfeld,

540 N.W.2d 915 (Minn. Ct. App. 1995)........ 23

—State v. Savard,

co GY Te eee 12

State v. Schnittgen,

No. 95-384 (Mont. filed Aug. 21, Per es 12

State v. Tench,

462 S.E.2d 922 (Va. Ct. App. 1995) ........ 12, 17

State v. Varney,

No. CA94-12-013, 1995 Ohio App.

LEXIS 2822 (July 3, 1995) ................ 14

State v. Walker,

646 A.2d 209 (Conn. App. Ct.),

appeal denied, 648 A.2d 159 (Conn. 1994) ...... 14

State v. Young,

530 N.W.2d 269 (Neb. Ct. App. 1995) ........ 12

State v. Zerkel,

900 P.2d 744 (Alaska Ct. App. 1995) ......... 12

Stuart v. Department of Social

and Rehabilitation Servs.

846 P.2d 965 (Mont. 1993) hoe sees sstees Sack 15

Taylor v. State Election Bd.,

616 N.E.2d 380 (Ind. Ct. App. PS s¢:oeeu vate 14

ix

United States v. 9844 South Titan

Ct., Unit 9, Littleton, Colo.,

Nos. 94-1285, 94-1290, 1996 U.S. App.

LEXIS 1559 (10th Cir. Feb. 5, 1996) ......... 22

United States v. $184,505.01

in United States

72 F.3d 1160 (3d Cir. 1995) DA eee eae ond 21

United States v. Alexander,

| 21

United States v. Cullen,

Dee ae eee eG, BOE owe t cde sscds 23

United States v. Dixon,

DD Schsccecensesecces 10

United States v. Halper,

Ch ee passim

United States v. Millan,

I eee 10

United States v. One

Assortment of 89 Firearms,

CD a cede Géeveeeeeés 20, 21

United States v. One Single Family

Residence Located at 18755 North

Bay Road, Miami,

13 F.3d 1493 (lith Cir. 1994) .............. 10

United States v. Tilley,

18 F.3d 295 (Sth Cir.),

cert. denied, 115 S. Ct. 574 (1994) ......... 21, 22

United States v. Ward, MISCELLANEOUS:

CUS Wile Ge OE 6 oc of es oO SL a 5, 25, 26

Commission Reform Act of 1994 ..............

Various Items of Personal satis aniae

Property v. United States, , Linda S., Separating Crime

Se WN EE bo a bb OS od a 66'SR Cus 20 rom Punishment, The Constitutional

of United States v. Halper,

Ward v. Department of Pub. Pe Se We DEE og vac csacccceses

Safety and Correctional Servs.,

oe 15, 25

Whittaker v. Dail,

567 N.E.2d 816 (Ind. Ct. App. 1991),

rev'd on other grounds,

584 N.E.2d 1084 (Ind. 1992) .............. 15

FEDERAL STATUTES:

De DEO GO oo dvi sitesi hee l

STATE STATUTES:

Ariz. Rev. Stat. Ann.

ee eee eee 19

Conn. Gen. Stat. § 54-36i(c) (1994) ..........., 19

Conn. Gen. Stat. § 54-36h(b) (1994). .......... 26

Or. Rev. Stat. tit. 16,

CR. 166, §IOLINC) (1993)... ccc cece 19

INTEREST OF THE AMICI CURIAE

The amici states seek reversal of the decisions in the

consolidated cases granted review. Those cases

misinterpreted United States v. Halper, 490 U.S. 435 (1989);

Austin v. United States, 113 S. Ct. 2801 (1993); and

Department of Revenue v. Kurth Ranch, 114 §. Ct. 1937

(1994), and thereby wrongfully expanded the Double

Jeopardy Clause. Analysis similar to that employed by the

Ninth and Sixth Circuits has already caused a deluge of

double jeopardy litigation in far-reaching areas of traditional

will directly affect the states’ ability to enforce their laws

and avoid disruption to the orderly business of criminal and

civil adjudication in such varying areas as unemployment

compensation, drivers licensing, prison discipline and

prosecutions of all types of criminal offenses.

Moreover, although the decisions below construed the

federal civil forfeiture statute, 21 U.S.C. § 881 (1994),

every state has a civil forfeiture statute, many patterned after

§ 881.' Even states with statutory forfeiture patterns unlike

the federal statute’ have faced or will face double jeopardy

challenges based on the decisions below. The states use civil

forfeiture as an essential instrument in their efforts to

remedy the consequences of criminal conduct which risks or

E.g., In re One 1987 Toyota, 621 A.2d 796, 798 (Del. Super. Ct.

1992) (Delaware statute “modeled closely upon" § 881); idaho Dept. of

Law Enforcement By and Through Cade v. Real Property Located in

Minidoka County, 885 P.2d 381, 383 (Idaho 1994) (Idaho statute

“virtually identical to" § 881).

* E.g., Ariz. Rev. Stat. Ann. §§ 13-4301 to 13-4315 (Supp. 1994);

Kan. Stat. Ann. §§ 65-4135 to 65-4175 (1992). See also Commission

Reform Act of 1994, drafted by the President's Commission on Model

State Drug Laws.

2

harms the public health or safety. Forfeiture has proven its

ee a

essential materiel, preventing capitalization of illegal

enjoyment derived from illegal proceeds. The decisions of

the courts below would severely limit the ability of the states

to use that vital tool.

SUMMARY OF ARGUMENT

1. The Ninth and Sixth Circuits misapplied and

expanded this Court’s double jeopardy jurisprudence.

Relying on dictum in United States v. Halper, 490 U.S. 435

(1989), the courts below held that a civil sanction which is

not solely remedial cannot be imposed in addition to a

criminal punishment. Such an interpretation conflicts both

with the actual holding of Halper and with the later decision

in Department of Revenue v. Kurth Ranch, 114 S. Ct. 2801

(1993). Those cases held that civil sanctions which cannot

“fairly be characterized as remedial, but only as a deterrent

or retribution,” are “punishment” for double jeopardy

purposes. Halper, 490 U.S. at 448-449 (emphasis added);

Kurth Ranch, 114 S. Ct. at 1952. Thus, the Ninth and Sixth

Circuits turned the inquiry on its head. Those courts based

their decisions on Austin v. United States, 113 S. Ct. 2801

(1993), which was not a double jeopardy case but instead

addressed whether a federal civil forfeiture statute can be

deemed punishment so as to come within the term “fine” in

the Eighth Amendment's Excessive Fines Clause.

The Ninth and Sixth Circuits also erred by failing to

assess the nature of the sanction and its remedial goals. This

Court in Halper and Kurth Ranch clearly stated that double

3

jeopardy analysis requires a “particularized assessment" of

each sanction and its purposes. Halper, 490 U.S. at 448;

Kurth Ranch, 114 S. Ct. at 1948. The courts below ignored

that requirement, holding that all forfeitures are punishment

for purposes of double jeopardy and therefore invalidating

the entire proceeding.

2. Litigants and courts applying the improper analysis

employed by the Ninth and Sixth Circuits have produced a

flood of double jeopardy litigation in state courts. Civil

claimants and criminal defendants have challenged penalties

and sanctions in areas in which states have traditionally

exercised legitimate regulatory power, including drivers

licensing, professional licensing, business regulation and

prosecutions of crime. These claims are crippling the ability

of the states to pursue civil and criminal justice in a timely

and orderly manner. Affirmation of the decisions below

would continue this disruption of states’ administration of

their civil and criminal laws and destroy many state

regulatory programs.

3. With respect to forfeiture specifically, under a

correct application of Halper and Kurth Ranch’s double

jeopardy jurisprudence, forfeiture of the proceeds of a crime

is always remedial and therefore outside the Double Jeopardy

Clause. Such forfeiture merely removes illegal profits to

which the possessor has no lawful property right and

prevents use of illegally gained assets to expand criminal

activity. Forfeiture of assets which facilitate crimes is

similarly remedial because it disrupts drug trafficking by

taking away the tools that a drug trafficker needs to ply his

trade.

4

4. Finally, although the decisions below can be

reversed in accord with the actual holding of Halper, if this

Court concludes that the Ninth and Sixth Circuits correctly

interpreted Halper, the amici states believe that Halper

should be reconsidered and overruled. Applying the Double

Jeopardy Clause as the courts below did does not further the

Clause’s aims, and would continue to create judicial

confusion over many difficult issues, resulting in unfair and

inconsistent results and vexatious litigation.

ARGUMENT

IMPOSITION OF BOTH CIVIL FORFEITURE,

OR OTHER CIVIL SANCTIONS, AND A

CRIMINAL CONVICTION AND SENTENCE

DOES NOT VIOLATE THE DOUBLE

JEOPARDY CLAUSE OF THE FIFTH

AMENDMENT TO THE UNITED STATES

CONSTITUTION.

The Double Jeopardy Clause has been held to prohibit

"three distinct abuses: a second prosecution for the same

offense after acquittal; a second prosecution for the same

offense after conviction; and multiple punishments for the

same offense." United States v. Halper, 490 U.S. at 440.

Until Halper, it was generally understood that the Double

Jeopardy Clause applied only to criminal prosecutions or

those few proceedings labeled civil, but deemed to be in fact

criminal and thus to require the constitutional safeguards

provided to criminal defendants. See Helvering v. Mitcheil,

303 U.S. 391, 399 (1938) (risk to which the Clause refers is

not present in proceedings that are not essentially criminal);

Breed v. Jones, 421 U.S. 519, 528 (1975) ("In the

5

constitutional sense jeopardy describes the risk that is

traditionally associated with a criminal prosecution.");

United States v. Ward, 448 U.S. 242 (1980); Kennedy v.

Mendoza-Martinez, 372 U.S. 144 (1963). Thus, there was

a fairly clear distinction between criminal and civil penalties.

or “criminal-like" proceedings. See Linda S. Eads,

Separating Crime from Punishment, The Constitutional

Implications of United States v. Halper, 68 Wash. U. L.Q.

929 (1990).

In Halper, this Court departed from that

understanding of double jeopardy jurisprudence and held that

a sanction imposed in a civil proceeding could be deemed

punishment for purposes of double jeopardy. The Court held

that some civil sanctions, or portions thereof, serve only

deterrent or retributive purposes because they are not

rationally related to remedying the government’s damages.

Relying solely on the multiple punishment prong of double

jeopardy analysis, the Court then determined that in certain

very limited situations such sanctions are punishment for

double jeopardy purposes and cannot stand after the

imposition of a criminal punishment. Halper, 490 U.S. at

449. However, the court stated that both such punishments

could be imposed in a single proceeding. Halper, 490 U.S.

at 450.

The courts below misapplied Halper and two

subsequent cases: Austin v. United States, 113 S. Ct. 2801

(1993), an Eighth Amendment case; and Department of

Revenue v. Kurth Ranch, 114 S. Ct. 1937 (1994). Because

inundated with meritless double jeopardy claims. This has

6

wrongfully threatened enforcement of an array of civil

sanctions including the civil forfeiture sanction. This Court

should reaffirm that civil sanctions implicate the Double

Jeopardy Clause in only the rarest of proceedings.

A. The Sixth and Ninth Circuits Misapplied and

Expanded The Double Jeopardy Doctrine of Halper

and Kurth Ranch.

The two Courts of Appeal below misconstrued the

double jeopardy jurisprudence enunciated in Halper, and

expanded it beyond the bounds previously delineated in at

least three crucial ways.

First, the courts below unduly expanded the concept

of “punishment” for a double jeopardy assessment of civil

sanctions. They did so by relying on dictwm in Halper and

ignoring its actual holding. Both courts held that a sanction

which has any deterrent or retributive purpose or effect,

regardless of its overall remedial goals, must be considered

punishment. The courts relied on the following dictum in

Halper. "{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, as we have come to understand the term."

Halper, 490 U.S. at 448.

The actual holding of Halper, however, was to a very

different effect:

We therefore hold that under the Double

Jeopardy Clause a defendant who already has

been punished in a criminal prosecution may

7

not be subjected to an additional civil sanction

to the extent that the second sanction may not

fairly be characterized as remedial, but only

as a deterrent or retribution.

490 U.S. at 448-449 (emphasis added). Thus a civil

sanction implicates double jeopardy if it can “only” be

characterized as a deterrent or retribution and has no

remedial function.’

Instead of following this clear teaching from the

double jeopardy cases, the Ninth and Sixth Circuits relied on

the use of the “solely remedial” language in United States v.

Austin, 113 S. Ct. at 2812. However, Austin involved a

different constitutional provision from Halper and

accordingly used a different analysis. Austin’s excessive

fines analysis characterized all forfeitures, including purely

remedial ones, as punishment for purposes of the term “fine”

in the Excessive Fines Clause. 113 S. Ct. at 2812 n. 14.

Moreover, that was only a threshold determination, and a

remand was necessary to determine if the fine was excessive.

Halper, by contrast, did not characterize remedial sanctions

as punishment, and its determination that a sanction was

punishment decided the ultimate issue and invoked the

> In Kurth Ranch, this court reiterated the Halper holding, with no

reference to the “solely remedial” dictum. 114 S. Ct. at 1945. See also

Kurth Ranch, 114 S.Ct. at 1952 (Rehnquist, C.J., dissenting) (proper

inquiry is whether a sanction “can only be explained as serving a punitive

purpose.") (emphasis added); Id. at 1953 (O’Connor, J., dissenting)

(“Our double jeopardy cases make clear that a civil sanction will be

considered punishment to the extent that it serves only the purposes of

retribution and deterrence, as opposed to furthering any nonpunitive

objective.”) (emphasis added).

Double Jeupardy Clause. Thus, Austin cannot support the

lower courts’ expansion of the double jeopardy doctrine.

Second, the two circuit courts ignored Halper's

direction to undertake, for double jeopardy analysis, a

“particularized assessment of the penalty imposed and the

purposes that the penalty may fairly be said to serve.”

Halper, 490 U.S. at 448. See also Kurth Ranch, 114 S. Ct.

at 1948 (specific analysis that applies to determine whether

a sanction is punishment for a double jeopardy claim varies

depending on the sanction under consideration). Such a

"rule . . . of reason” permits application of double jeopardy

principles only in the “rare case" where the civil penalty in

application bears no rational relation to a remedial goal so

that it “in fact constitutes a second punishment." Halper,

490 U.S. at 446, 449-50.

Rather than following this mandate, and determining

the nature of the remedial goals of the forfeiture sanction,

the courts below relied on the Eighth Amendment analysis of

Austin to hold that all forfeitures are punishment. That

reliance was unfounded. Austin did not change the Halper

rule by adopting a categorical approach to the concept of

punishment for forfeiture or any other sanction. In fact,

Austin acknowledged the individual nature of the Halper

double jeopardy inquiry. Austin, 113 S. Ct. at 2812 n.14.

It is true that in addressing the Eighth Amendment definition

of the term "fine," Austin focused on the federal civil

forfeiture statute as a whole. However, that inquiry was

only the first step in the Eighth Amendment analysis, and the

Court remanded the case for a determination of whether the

particular forfeiture at issue was remedial or non-remedial

and therefore “excessive.” Jd., 113 S. Ct. at 2812 n.14.

9

Had the court intended the categorical approach to forfeitures

used by the Ninth and Sixth Circuits, there would have been

no need for a remand.

Third, the courts below erred in dismissing the

second sanction rather than amending the civil sanction to

comply with double punishment limitations set out in Halper.

Blanket dismissal leads to the anomalous circumstance that

an entire remedy is negated if it is a single dollar over the

level at which a remedial sanction becomes punitive. Such

a result conflicts with Halper’s directive to assess so much

of the potential civil judgment as is not punitive, after a

particularized view of the remedial goals of the civil action

involved and the circumstances of the specific case.

In sum, contrary to the decisions below, punishment

occurs only in the “rare case” where there is an egregiously

excessive civil sanction that is not reasonably related to a

remedial purpose. Even then, the entire sanction need not

necessarily be barred. Only that portion which is unrelated

to the remedial goals may be considered punishment.‘

* The Ninth Circuit also mistakenly held that coordinated, parallel

civil and criminal proceedings could never be considered the same

proceeding so as to comply with Halper’s teaching that there is no double

jeopardy violation if the civil and criminal sanctions, no matter their

extent, are applied in the same proceeding. The Sixth Circuit did not

adopt a categorical rule, but mistakenly determined that in the case

before it there was insufficient evidence of coordination of actions to find

and criminal proceedings for the same conduct may be deemed one

proceeding for double jeopardy purposes so long as the timing of the

actions does not permit repeated attempts to achieve in a second action

what the government did not accomplish in the first. This kind of

oppressive abuse by an initially dissatisfied government is at the heart of

10

B. The Double Jeopardy Analysis Employed In The

Decisions Below Has Created Havoc With The

States’ Efforts To Perform Their Traditional Role

In The Prosecution Of Crime And The Regulation

Of Civil Activity.

Reasoning similar to that of the Ninth and Sixth

Circuits has produced novel and vexatious double jeopardy

litigation in state courts across the natien. In order

legitimately to address prohibited conduct, the states

increasingly rely on civil sanctions such as taxes, forfeitures,

drivers license suspensions, professional disciplinary

sanctions and exclusion from participation in public

programs. Many of these civil sanctions are imposed for

conduct that is also subject to criminal prosecution and

punishment. However, double jeopardy analysis such as that

used by the Ninth and Sixth Circuits casts into doubt the

authority of the states to apply civil sanctions in addition to

the double jeopardy concern. Absent that potential, there is only one

jeopardy. See United States v. Millan, 2 F.3d 17 (2d Cir. 1993), cert

denied, sub nom., Bottone v. United States, 114 S. Ct. 922 (1994);

United States v. One Single Family Residence Located at 18755 North

Bay Road, Miami, 13 F.3d 1493 (11th Cir. 1994). The amici, however,

will leave to the United States to argue the facts of the particular

proceedings involved here.

In addition, the Sixth Circuit also erred in finding that the

forfeitures and the criminal convictions were based on different offenses

under the traditional double jeopardy test of Blockburger v. United States,

284 U.S. 299 (1932), which requires a determination of whether each

“offense” requires proof of an element not included in the other. See

also United States v. Dixon, 113 S. Ct. 2849 (1993). Because that

determination is necessarily based on the specific statutory elements

involved in a particular case, the amici states will not argue that issue

here, but support the United States in its argument.

ll

criminal prosecution. Furthermore, that kind of double

jeopardy reasoning has disrupted the orderly process of

criminal justice by leading either to dismissals of criminal

charges following a civil sanction or to interlocutory appeals

of the denial of those dismissals, regardless of the facial

frivolity of the claim.

The states have faced challenges to criminal

prosecutions and civil sanctions in cases ranging from

homicide to sexual assaults to disqualification from public

Office to professional discipline. For example, most, if not

all, states have faced challenges to the criminal prosecution

of drunk driving charges because of prior drivers license

suspensions for the same conduct. In Connecticut, a trial

court dismissed such a prosecution based on its reading of

the Halper line of cases. Analyzing the double jeopardy

issue much as the Ninth and Sixth Circuits did here, the trial

court held that drivers license suspension could not be

deemed “solely” remedial and therefore constituted

“punishment,” barring a criminal punishment for the same

conduct. State v. Hickam, No. MV94 618025, 1995 Conn.

Super. LEXIS 1215 (Apr. 20, 1995), rev’d, No. 15256,

1995 Conn. LEXIS 432 (Dec. 26, 1995). The Connecticut

Supreme Court, analyzing the issue differently, held the

license suspension remedial rather than punitive and

reinstated the prosecution. State v. Hickam, No. 15256, 1995

Conn. LEXIS 432 (Dec. 26, 1995). By contrast, an Ohio

Court of Appeals agreed with a defendant's double jeopardy

reasoning and refused to reinstate the drunk driving

12

prosecution. State v. Gustafson, No. 94 C.A. 232, 1995

Ohio App. LEXIS 2790 (Jan. 27, 1995).°

Some state trial courts have dismissed criminal

prosecutions after imposition of a civil sanction. See, ¢.g.,

State v. Hickam, 1995 Conn. Super. LEXIS 1215; State v.

Hanson, Nos. C1-95-531, C5-95-564, 1996 Minn. LEXIS 8

(Jan. 19, 1996) (reversing trial court); Small v.

Commonwealth, 402 S.E.2d 927 (Va. Ct. App. 1991) (en

banc); State v. Schnittgen, No. 95-384 (Mont. filed Aug. 21,

1995) (appeal pending from district court’s dismissal of

felony charges, holding prior termination of the defendant's

employment as deputy sheriff was punishment for double

* The Gustafson case is currently on appeal to the Ohio Supreme

Court. See Gustafson, 73 Ohio St. 3d 1427 (Ohio 1995). A different

Ohio appellate court came to a contrary conclusion and reinstated the

prosecution. State v. Miller, No. 2-94-32, 1995 Ohio App. LEXIS 1971

(May 12, 1995), appeal allowed, 655 N.E.2d 185 (Ohio 1995).

For other challenges to drunk driving prosecutions following

suspension of license, see, ¢.g., State v. Zerkel, 900 P.2d 744 (Alaska

Ct. App. 1995); State v. Nichols, 819 P.2d 995 (Ariz. Ct. App. 1991);

Freeman v. State, 611 So. 24 1260 (Fla. Dist. Ct. App. 1992), cert.

denied, 114 S. Ct. 415 (1993); State v. Higa, 897 P.2d 928 (Haw.

1995); State v. Maze, 825 P.2d 1169 (Kan. Ct. App. 1992); Butler v.

Department of Pub. Safety & Corrections, 609 So. 2d 790 (La. 1992);

State v. Jones, 666 A.2d 128 (Md. 1995), petition for cert. filed, 64

U.S.L.W. 3510 (U.S. Jan. 11, 1996) (No. 95-1131); State v. Savard,

659 A.2d 1265 (Me. 1995); State v. Hanson, Nos. C1-95-531, C5-95-

564, 1996 Minn. LEXIS 8 (Jan. 19, 1996); State v. Young, 530 N.W.2d

269 (Neb. Ct. App. 1995); State v. Cassady, 662 A.2d 955 (N.H. 1995);

State v. Tench, 462 S.E.2d 922 (Va. Ct. App. 1995); State v. Strong,

605 A.2d 510 (Vt. 1992).

13

jeopardy purposes).° In other cases, courts have invalidated

a civil sanction following a criminal conviction for the same

conduct. See, e.g., Kvitka v. Board of Registration in

Medicine, 551 N.E.2d 915 (Mass.), cert. denied, 498 U.S.

823 (1990) (vacating fine imposed by medical licensing

board following criminal conviction for illegal drug

dispensing).

Thus, the reach of the double jeopardy analysis, as

expanded in the two cases granted review, extends far

beyond the civil forfeiture arena. No sooner do state

attorneys believe they have seen the most extensive and

frivolous permutation of these double jeopardy claims than

imaginative civil claimants and criminal defendants present

new challenges. The spectrum includes: claims that

professional disciplinary actions bar criminal prosecution and

vice versa;’ claim that conviction for unregistered firearms

bars revocation of state liquor license for same conduct;'

claims that prison discipline for violent conduct bars

* Halper involved a civil penalty imposed after a criminal

prosecution. In Kurth Ranch this Court noted that it was not deciding the

case in which the criminal prosecution follows the civil sanction. Kurth

Ranch, 114 S.Ct. at 1947 n.21.

” Schillerstrom v. State, 885 P.2d 156 (Ariz. Ct. App. 1994), cert.

denied, No. CV-94-0396-PR (Ariz. Dec. 20, 1994) (revocation of

chiropractic license); People v. Marmon, 903 P.2d 651 (Colo. 1995)

(attorney discipline); Loui v. Board of Medical Examiners, 889 P.2d 705

(Haw. 1995) (discipline of medical doctor).

* Roach Enters., Inc. v. License Appeal Comm'n, Nos. 1-95-1446,

1-95-1555, 1996 Ill. App. LEXIS 9 (Jan. 12, 1996).

14

Subsequent prosecution for assault or homicide;’ chilenge

to revocation of business license to operate heath spa

following plea of nolo contendere to sexual Ofense;”

traffic violation resulting in death;" claims tha prior

criminal conviction precludes application of statutory »r state

constitutional bar on candidacy for public office; claims

that disqualification from public benefits because of ciminal

conduct bars subsequent criminal prosecution;” clains that

school expulsion for criminal misconduct bars deli

adjudication; challenge to motor vehicle deprtment

assessment of "points" on driving record after convicion for

* State v. Walker, 646 A.2d 209 (Conn. App. Ct.), appeaidenied,

648 A.2d 159 (Conn. 1994); State v. McKenzie, No. C3-95-128, 1996

Minn. LEXIS 10 (Jan. 19, 1996).

© Moser v. Richmond County Bd. of Comm'rs, 428 S.E.2¢71 (Ga.

1993).

'' Purcell v. United States, 594 A.2d $27 (D.C. 1991).

2 Mcintyre v. Miller, 436 S.E.2d 2 (Ga. 1993); Taylory. State

Election Bd., 616 N.E.2d 380 (Ind. Ct. App. 1993).

' State v. Varney, No. CA94-12-013, 1995 Ohio App. LEDs 2822

(July 3, 1995); State v. Millett, No. And-95-166, 1996 Me. |EXIS 7

(Jan. 5, 1996); State v. Duerr, No. 14871, (Conn. App. ‘t. filed

December 29, 1995).

'* In re Dandridge, 614 So.2d 129 (La. Ct. App.), cert. detied, 616

So. 2d 684 (La. 1993); In re Gila County Juvenile Delinquenc) Action,

816 P.2d 950 (Ariz. Ct. App. 1991).

15

motor vehicle offenses;'* and claim that denial of accrued

vacation benefits after public employment termination due to

crime violates double jeopardy because of previous

conviction for the crime. *

The doctrine that civil sanctions can be deemed

punishment for double jeopardy purposes has even led to

claims in cases involving only civil adjudication. In Ward v.

Department of Pub. Safety and Correctional Servs., 663

A.2d 66 (Md. 1995), an employee was disciplined for

misconduct at his job. Subsequ«atly, he was discharged.

He claimed, pursuant to Halper and its progeny, that the

prior suspension was a form of punishment which constituted

an " " doubie jeopardy bar to the subsequent

discharge."”

Even more surprising, the Halper doctrine has been

invoked in private lawsuits. Defendants previously convicted

of crimes have claimed that in private lawsuits for damages

caused by the criminal conduct, punitive damages are barred

under double jeopardy rules. See Whittaker v. Dail, 567

N.E.2d 816 (Ind. Ct. App. 1991), rev'd on other grounds,

584 N.E.2d 1084 (Ind. 1992); Jines v. Seiber, 549 N.E.2d

964 (Ill. App. Ct. 1990). In Oregon, a trial court dismissed

'’ No Mlegal Points, Citizens for Drivers Rights, Inc. v. Florio, 624

A.2d 981 (N.J. Super. Ct. App. Div.), cert. denied, 634 A.2d 526 (NJ.

1993).

'* Stuart v. Department of Social and Rehabilitation Servs. , 846 P.2d

965 (Mont. 1993).

" At oral argument in the appeal, the claimant abandoned the

constitution as a basis for his claim. Nevertheless the court explained

why his claim was meritless. Ward, 663 A.2d at 69.

16

a prosecution for shoplifting because the defendant had

already been “punished” by paying restitution to the store

owner in a civil suit. State v. Reetz, No. CA A89387 (Ore.

Ct. App. filed July 24, 1995).

Finally, at least one court has extended the distorted,

expansive reading of Halper to employ the double jeopardy

analysis even where there was no prior punishment, but the

claimant had been subjected to a prior proceeding. Thus, in

Crump v. Alabama Alcoholic Beverage Control Bd., No.

2940412, 1995 Ala. Civ. App. LEXIS 670 (Dec. 1, 1995),

the court found that a civil fine was an additional penalty

barred by the double jeopardy clause even though the

plaintiff had previously been acquitted of the crime and

therefore not punished previously.

The cases cited above are only the tip of the iceberg.

In a decision filed in January, 1995, the New York Supreme

Court of Kings County reported that a computer search

indicated that at least 147 state decisions had discussed or

cited the Halper rule. District Attorney of Kings County v.

ladarola, 623 N.Y .S.2d 999 (N.Y. Sup. Ct. 1995). These

challenges to states’ civil and criminal proceedings are

increasing at an alarming rate." The doctrine described by

this Court in Halper, 490 U.S. at 449, as only for the “rare

case” has become the claim for the ordinary case.

Most of these challenges, even when accepted at the

trial level, have been rejected by state appellate courts. For

‘* Another source of potentially crippling litigation is habeas corpus

claims of state prisoners in both state and federal courts seeking to vacate

characterized as remedial” rather than finding punishment

=

jeopardy is asserted to bar a criminal prosecution.” Thus,

the orderly process of justice is delayed even when the

double jeopardy claims are ultimately rejected.

If the Court affirms the courts below, this drain on

State judicial resources would multiply dramatically. It

would be virtually impossible to find any civil sanction

“solely” remedial, as all such sanctions have some deterrent

or retributive effect or goal. The violent prisoner would

escape prosecution for his crimes based on the same

erroneous analysis that caused the Ninth and Sixth Circuits

to bar both forfeiture and prosecution. Instead, double

jeopardy principles should return to the intent of this Court's

decision in Halper and be applied extremely narrowly in the

civil sanction area. This Court's decision must be carefully

crafted to avoid disastrous and unintended results to the

States’ authorized civil sanctioning power.

Cc. Contrary To The Decisions Below, Under This

Court’s Double Jeopardy Doctrine as Enunciated

in Halper and Kurth Ranch, Forfeitures Are

Punishment Only In The "Rare Case."

Part B, supra, demonstrates how an erroneously

expansive reading of Halper is having a deleterious effect on

an array of civil sanctions. The most immediate negative

effect of the decisions of the courts below is on the forfeiture

® See, ¢.g., State v. Davis, 903 P.2d 940 (Utah Ct. App. 1995)

(interlocutory appeal from denial of motion to dismiss criminal

prosecution following forfeiture of vehicle); State v. Aparo, 614 A.2d

401, 403 n.4 (Conn. 1992), cert. denied, $07 U.S. 972 (1993) (double

jeopardy claim exception to final judgment rule for appellate review,

citing Abney v. United States, 431 U.S. 651 (1977)).

19

sanction. The courts below held that civil forfeitures,

categorically, are “punishment” for purposes of applying the

Double Jeopardy Clause. This directly conflicts with

Halper’s holding that civil sanctions are “punishment” only

in the rare case. Moreover, this court in Austin recognized

that some types of forfeiture are remedial and thus fall

outside the Double Jeopardy Clause.

The courts below also neglected to assess the

particular remedial purposes of forfeiture actions. The fine

in Halper was intended to compensate the government for its

direct losses and expenses incurred as a result of the false

claims filed by Halper and the ensuing litigation. In the case

of forfeiture, there are costs to society resulting from illegal

drug marketing that are not assessable in financial terms, but

are nonetheless real.” And the remedial goal is to remove

the harmful assets from society to prevent future damage.

Moreover, the illegal narcotics industry is an entire

underground economy in which no one acts alone. Every

"| Many states, recognizing the nature of these costs, have statutorily

allocated the proceeds of civil forfeiture actions to remedial compensatory

goals such as funding drug law enforcement, drug abuse education and

gang prevention programs. See, ¢.g., Conn. Gen. Stat. § 54-36i(c)

(1994) (allocating forfeiture of drug assets to fund of which 70% goes to

local and state police for drug education and detection and investigation

of drug crime and gang violence, 20% to the department of health for

substance abuse treatment and education, and 10% for the prosecution of

drug related crimes by the division of criminal justice); Or. Rev. Stat. tit.

16, ch. 166, § 10(1)(c) (1993) (allocating funds to enforcement of drug

laws, drug intervention, treatment and education programs and

prohibiting use for construction, expansion or maintenance of buildings

and employment positions previously funded out of non-forfeiture

proceeds); Ariz. Rev. Stat. Ann. §§ 13-4311(1),(N) (1995) (allocating

forfeiture proceeds as a first priority to compensate the victim of the

20

participant is tied to others in the enterprise. The costs of

investigating and prosecuting an individual defendant will

inevitably include costs attributable to investigation and

prosecution of many others as well. Therefore, it is fair to

view broadly the costs of the drug business in assessing the

remedial nature of civil forfeiture.

1, Forfeiture of proceeds of a crime is always

remedial.

In Austin, the Court recognized that forfeiture of

contraband is remedial. The Court cited United States v. One

Assortment of 89 Firearms, 465 U.S. 354 (1984), where

contraband was forfeited, as an example of cases where the

forfeiture could properly be “characterized as remedial

because it removes dangerous or illegal items from society."

Austin, 113 S. Ct at 2811. Proceeds of criminal activity,

often of illegal narcotics trafficking, are the functional

equivalent of the contraband they replace. Forfeiture of

criminal proceeds serves to remove the illegally obtained

assets from society and to prevent their reinvestment in the

expansion of harmful, illegal activity. Thus, forfeiture of

proceeds is remedial under Austin, because it does in fact

remove dangerous items from society. Jd. at 2811.”

= In general, this Court has upheld against doubie jeopardy

challenges the imposition of criminal punishment and the in rem

forfeiture of property associated with the crime. See One Lot of Emerald

Cut Stones and One Ring v. United States, 409 U.S. 232 (1972); United

States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984); Various

items of Personal Property v. United States, 282 U.S. 577 (1931); But

see Coffey v. United States, 116 U.S. 436 (1886) (striking down

forfeiture following acquittal of crime on grounds difficult to determine

but appearing to be collateral estoppel principles, with no specific

mention of the Double Jeopardy Clause). Coffey was disapproved in

21

Furthermore, forfeiture of proceeds, like that of

contraband, takes property to which the possessor has no

lawful right. In Caplin & Drysdale v. United States, 491

U.S. 617 (1989), this Court upheld the forfeiture of proceeds

of drug trafficking intended to pay for a criminal defendant's

legal fees. The Court reasoned that the money was not

rightfully the defendant’s, and, therefore, forfeiture did not

violate his Sixth Amendment right to counsel of his

choice.” Cf. Rex Trailer Co. v. United States, 350 U.S.

148, 153-54, n.6 (1956) (illegal proceeds from fraudulent

transaction with the government characterized as “unjust

enrichment"). Similarly, the forfeiture of assets which do

not legally belong to the possessor is not punishment. It

merely places the offender back in the position he enjoyed

prior to his criminal activities. Moreover, the forfeiture of

drug proceeds will always be proportional to the amount of

drugs sold, and therefore proportional also to the harm to

society. United States v. Tilley, 18 F.3d 295 (Sth Cir.), cert.

denied, 115 S. Ct. 574 (1994).

Although the Ninth Circuit failed to understand the

remedial nature of proceeds forfeiture, the same mistake was

not made by other circuit courts and many state courts. See,

e.g., United States v. Tilley, 18 F.3d 295; United States v.

$184,505.01 in United States Currency, 72 F.3d 1160 (3d

Cir. 1995); United States v. Alexander, 32 F.3d 1231, 1236

(8th Cir. 1994) (proceeds forfeiture not punishment for

United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984).

® The proceeds of criminal activity are analogous to the money taken

in a bank robbery. Caplin & Drysdale, 491 U.S. at 626. It would be

absurd to find that forfeiture of the proceeds of bank robbery bars a

criminal prosecution or vice versa.

22

purposes of the Eighth Amendment Excessive Fines Clause);

District Attorney of Kings County v. ladarola, 623 N.Y .S.2d

999 (N.Y. Sup. Ct. 1995); Idaho Dep’t. of Law Enforcement

By and Through Cade v. Real Property Located in Minidoka

County, 885 P.2d 381, 383 n.5 (Idaho 1994). Those courts

correctly held that forfeiture of proceeds is not punishment.

As the Fifth Circuit stated:

When ... . the property taken by the

government was not derived from lawful

activities, the forfeiting party loses nothing to

which the law ever entitled him. . . . The

possessor of proceeds from illegal drug sales

never invested honest labor or other lawfully

derived property to obtain the subsequently

forfeited proceeds. Consequently, he has no

reasonable expectation that the law will

protect, condone, or even allow, continued

possession of such proceeds because they

have their very genesis in illegal activity.

Tilley, 18 F.3d at 300. See also SEC v. Bilzerian, 29 F.3d

689, 696 (D.C. Cir. 1994) (ordering a previously convicted

defendant to disgorge profits of illegal securities activities

not punishment for double jeopardy purposes). Bur see

United States v. 9844 South Titan Ct., Unit 9, Littleton,

Colo. , Nos. 94-1285, 94-1290, 1996 U.S. App. LEXIS 1559

(10th Cir. Feb. 5, 1996) (agreeing with the Ninth Circuit's

holding that forfeiture of proceeds is punishment for double

jeopardy purposes).

23

2. The forfeiture of property which facilitates

criminal activity is also remedial.

Forfeiture of criminal instrumentalities protects the

public from continued crime by diminishing its profits and

providing obstacles to its pursuit. For example, when a drug

dealer’s car is forfeited, he has to find other transportation.

Walking or using public transit makes transporting drugs less

flexible, more time-consuming and less secure. Without the

property necessary to conduct his business, including

buildings and conveyances, the manufacturer or distributor

of illegal drugs will have difficulty remaining in business and

society will be spared the harm inflicted by this crime. The

remedial purpose is not to compensate the government for its

litigation costs as was the case for the fine in Halper, rather,

forfeiture of instrumentalities serves the remedial purpose of

removing the tools of the drug dealer’s trade. United States

v. Cullen, 979 F.2d 992, 994 (4th Cir. 1992); State v.

Rosenfeld, 540 N.W.2d 915, 921 (Minn. Ct. App. 1995);

See also One Lot Emerald Cut Stones and One Ring v.

United States, 409 U.S. 232, 237 (1972) (non-contraband

property forfeitable as instruments of a customs offense, and

analyzed as liquidated damages).

This is true irrespective of the value of the forfeited

facilitating property. Considering that value as an indication

of disproportionality and punishment, as was suggested in

Austin, is illogical in the double jeopardy assessment. To do

so would reward those drug merchants who are successful,

and have thus created enormous harm to society, by barring

under double jeopardy doctrine a criminal prosecution. On

the other hand, small-time or unsuccessful drug dealers who

have not managed to amass wealth would be subject to both

24

forfeiture and prosecution. That distinction makes no sense.

See Cullen, 979 F.2d at 995 ("So far as the public welfare

is concerned, the Ferrarri is at least as harmful an

instrumentality as the Chevette"). Rather, it is the nexus

between the property and the crime which is the appropriate

consideration. Austin, 113 S. Ct. at 2815 (Scalia, J.,

concurring in part, concurring in the judgment). If property

is sufficiently involved in crime, its removal from that use

is remedial.

D. This Court Should Reconsider Halper's Double

Jeopardy Application To Civil Sanctions.

As discussed, the two cases on review can be

reversed in accord with the actual holdings of Halper and

Kurth Ranch. However, if this Court concludes that the

Ninth and Sixth Circuits correctly interpreted the Halper

doctrine, the amici states believe that that doctrine should be

reconsidered and overruled. Such an expanded view of

double jeopardy does not comport with the constitutional

purposes of the provision. And that expanded analysis, if

adopted by this Court, would continue to engender

overwhelming litigation in state courts and crippling

obstacles to state administration of civil and criminal justice.

The core concern of the Double Jeopardy Clause is

the finality of criminal judgments and the prevention of

abusive repeated prosecutions for the same offense. Crist v.

Bretz, 437 U.S. 28, 33, 35 (1978); Mitchell, 303 U.S. at

25

399; Breed, 421 U.S. at 528.% The multiple punishment

prong, at least in the context of a single trial, does no more

than ensure that any punishment imposed does not exceed

that authorized by the legislature. Missouri v. Hunter, 459

U.S. 359, 368-369 (1983). Those concerns are not

furthered by the expanded Halper analysis employed by the

Ninth and Sixth Circuits. By rejecting the legislatively

authorized cumulative civil and criminal penalties for certain

misconduct, that doctrine actually conflicts with that strain

of prior double jeopardy jurisprudence. In fact, it creates an

unwarranted shift in the balance of power between the

legislative and judicial branches by substituting the trial

court’s judgment for the legislature’s as to the appropriate

sanciion for misconduct.

Although addressing only the multiple punishment

prong, Halper, when read as the Sixth and Ninth Circuits

did, in fact creates a concept of “successive punishments"

applied to civil actions. That concept does not address

potential abuse of the criminal process through successive

* Prior to Halper, it had been well settled that a legislature “may

impose both a criminal and a civil sanction in respect to the same act or

omission” without violating the Double Jeopardy Clause. Helvering v.

Mitchell, 303 U.S. 391, 399 (1938). Before Halper, therefore, the Court

had considered a civil sanction in the context of determining if a statutory

scheme was in fact a criminal proceeding requiring all of the

constitutional protections accorded criminal defendants, despite a

legislative label indicating it was intended to be a civil proceeding. The

paid to the legislature's denomination. Only the clearest proof that the

purpose and effect of the sanction were punitive would suffice to override

the legislature's manifest preference for a civil penalty. United States v.

Ward, 448 U.S. 242, 249 (1980).

26

trials. The Halper decision does not bar a civil action

following a criminal prosecution; it merely bars any portion

of a civil penalty imposed that is deemed greater than that

which would be remedial. Thus, the Court did not preclude

a second trial, nor did it require the civil action to provide

the constitutional safeguards of the Sixth Amendment and

other provisions relating to criminal defendants. It is evident

therefore that the Court was not furthering the successive

prosecution concern of the Double Jeopardy Clause.”

The amici states therefore urge this Court to end the

confusion in Double Jeopardy jurisprudence created by lower

courts’ attempts to deal with the aftermath of Halper and

Kurth Ranch. The principles enunciated in prior cases for

determining if a statutory scheme is in fact punitive provides

for the rare case where a legislature has created what is

really a criminal process but has denominated it civil. See

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); United

States v. Ward, 448 U.S. 242 (1980). Returning to those

* It is worth noting that the remedy proposed by the Ninth Circuit

for the federal system, i.e. using criminal forfeiture and combining 1)

with the criminal prosecution in one action, will not necessarily work in

the states. Many states do not have a criminal forfeiture procedure and

cannot combine the civil forfeiture action with the criminal prosecution.

Instead, those states will have to forego either the forfeiture action or the

criminal prosecution if the analysis in the federal cases below is affirmed.

Moreover in many states the civil forfeiture statutes require short time

periods for adjudication after seizure. E.g., Conn. Gen. Stat. § 54-36h(b)

(1994) (forfeiture petition must be filed within 90 days of seizure and a

hearing must be held promptly). Thus, it could often be the criminal

approach also provides an incentive for large scale criminal defendants

to concede forfeiture cases quickly in order to avoid lengthy prison

terms. See People v. Hellis, 536 N.W.2d 587, 592 (Mich. Ct. App.),

appeal denied, 539 N.W.2d 504 (Mich. 1995).

27

principles will stem the tide of onerous, but meritless,

liti

double jeopardy litigation that Halper has unnecessarily

created.

CONCLUSION

For the reasons set forth herein, the decisions of the

Courts of Appeal for the Ninth and Sixth Circuits should be

reversed.

Respectfully submitted,

JOHN M. BAILEY

Chief State’s Attorney of Connecticut

* MARY H. LESSER

Assistant State’s Attorney

300 Corporate Place

Rocky Hill, Connecticut 06067

(860) 258-5800

Counsel for Amici States

* Counsel of Record

February 23, 1996