# Amicus Curiae Brief — United States v. Ursery

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0649%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 267

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0649%3A09. Public record. Not legal advice.