Asset Seizure Is Not Double Jeopardy, High Court Rules

Upholding the broad reach of the government’s forfeiture power, the Supreme Court ruled Monday that it is not “double punishment” for prosecutors to seize a criminal’s house and assets after he has been sent to prison.

The 8-1 decision overturns recent federal appeals court rulings in California and Michigan, which declared that the Constitution’s ban on “double jeopardy” does not permit prosecutors to hit a defendant twice, once with a criminal sentence and a second time with a civil forfeiture order.

“Civil forfeitures, we hold, do not constitute punishment for purposes of the double-jeopardy clause, “ said Chief Justice William H. Rehnquist.

The ruling restores the government’s seizure power to what it has been for much of American history, and it spares prosecutors a major headache. Had the justices found a double-jeopardy violation, thousands of forfeiture orders involving houses, cars, boats and cash could have been overturned.

Still, Monday’s decision is something of a surprise. Three years ago, the justices moved to rein in the aggressive use of civil forfeitures.

In one ruling, the court insisted that a defendant deserved a full hearing before his property could be taken. In a second case, it said that seizing a man’s house and auto repair business over the sale of two ounces of cocaine amounted to cruel and unusual punishment.

But in this term, the court has backed off those rulings. Instead, it upheld the most sweeping use of forfeiture power in three cases.

In November, the court said that federal prosecutors can seize all the assets of a convicted drug criminal, including a high school coin collection and a childhood savings account that had nothing to do with his illegal business.

In March, the court upheld the seizure of property from “innocent owners.” If a person’s car, boat or apartment was used for criminal purposes, such as selling drugs, the property can be seized, even if the owner knew nothing of it.

In that case, Bennis vs. Michigan, the 5-4 ruling upheld the seizure of a Michigan woman’s car because her husband had used it to pick up a prostitute.

Monday’s ruling relies on 18th century maritime cases and Prohibition cases from the 1920s. The maritime cases involved customs agents who found ship cargoes for which taxes had not been paid and then brought a civil action to seize the items. By the Prohibition era, it was well-established in law that prosecutors could bring a forfeiture action against an illegal distillery.

“It is the property which is proceeded against, and, by resort of a legal fiction, held guilty,” said Rehnquist, quoting from a 1931 ruling.

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Because a civil forfeiture action is directed at the guilty property, not its owner, it cannot be deemed a double punishment of the defendant, the chief justice said.

A staunch conservative, Rehnquist has insisted on sticking with the court’s long-standing precedents allowing both criminal charges and civil forfeitures in the same case.

While the other justices did not explain themselves, several may believe it is up to Congress, not the high court, to rein in the government’s forfeiture authority.

Only Justice John Paul Stevens dissented, as he has in all of the court’s recent forfeiture rulings.

“This term, the court has begun dismantling the protections [in forfeiture cases] it so recently erected,” he wrote. The Bennis case said that “officials may confiscate an innocent person’s automobile. And today, for the first time, it upholds the forfeiture of a person’s home,” Stevens wrote.

He referred to the case of Guy Ursery, a Flint, Mich., auto worker who grew marijuana plants near his rural farmhouse. His son’s former girlfriend told police about the marijuana plants, and a police raid found 142 plants, none more than two feet tall.

Ursery was not charged with drug trafficking. “The most you could say was he was giving it to friends. I’m amazed the federal government got involved in this case at all,” said his attorney, Lawrence Emery of Lansing, Mich.

Prosecutors first sought a civil forfeiture order for his house on grounds that it was “used to facilitate the unlawful processing of a controlled substance.” Later, they indicted Ursery for growing marijuana, and he was convicted and sentenced to 63 months in prison.

The U.S. 6th Circuit Court of Appeals in Cincinnati reversed the criminal sentence, saying that it was a second punishment for the same crime.

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Meanwhile, the U.S. 9th Circuit Court of Appeals took the same view in a case involving two Los Angeles men, Charles Arlt and James Wren, who were convicted of manufacturing methamphetamines and sentenced to life in prison. Separately, prosecutors brought a civil forfeiture order to take possession of $405,089 from a bank account, as well as 11 cars, one helicopter, one small airplane and 138 silver bars.

Judge Stephen Reinhardt, writing for the appeals court, said that the forfeiture “implicates the core double-jeopardy protection” because it is a successive punishment for the same crime.

The high court reversed both judgments (U.S. vs. Ursery, 95-345, and U.S. vs. $405,089, 95-346).

In other rulings, the court:

* In a setback for prisoners’ rights, overturned on an 8-1 vote a judge’s order that required Arizona’s prison warden to have first-rate law libraries and to help illiterate inmates file legal challenges. The Constitution “does not guarantee inmates the wherewithal to transform themselves into litigating engines,” Justice Antonin Scalia wrote in Lewis vs. Casey, 94-1511.

* Ruled 5-4 that defendants who are charged with multiple petty offenses are not entitled to a jury trial (Lewis vs. U.S., 95-6465). The 7th Amendment protects the right to a jury trial for serious offenses, which are defined as those yielding a maximum sentence of six months or more.