Final Jeopardy: Merging the Civil and Criminal Rounds in the Punishment Game

• NCJ Number: 162446
• Journal: Florida Law Review Volume: 46 Issue: 4 Dated: (September 1995) Pages: 661-686
• Author(s): J T Martin
• Date Published: 1995
• Length: 26 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This article examines U.S. Supreme Court decisions pertinent to the legality of the government's using civil forfeiture as a means of punishment pursued in addition to punishment from a parallel criminal proceeding.

Abstract

In United States v. Halper (1989), the U.S. Supreme Court held that punishment, for purposes of double jeopardy analysis, need not be limited to the criminal context. In Austin v. United States (1993), the Court built on "Halper's" liberalization of punishment principles and held that punitive civil actions, such as forfeitures, were subject to the proportionality structures of the eighth amendment. Together, these cases ostensibly eliminated the civil/criminal distinction, forcing prosecutors to think twice before allowing jeopardy to attach from a single proceeding of either type unless they were prepared to be bound fully by that proceeding's outcome. The third and most recent blow to prosecutors' absolute discretion in seeking noncriminal penalties in addition to criminal punishments came in the Court's decision in Department of Revenue v. Kurth Ranch (1994). Applying the principles developed in "Halper" and "Austin," the Court struck down an administrative tax on forfeited proceeds, exacted only after criminal conviction, as being punitive in nature for double jeopardy purposes. Thus, where "Halper" and "Austin" dismantled the civil/criminal distinction, "Kurth Ranch" deconstructed the judicial/administrative distinction, theoretically rendering all punitive actions subject to constitutional review. This article first examines the advantages that prosecutors enjoyed under the system of parallel proceedings prior to the three Supreme Court decisions cited. This is followed by an examination of the three court decisions in more detail in an attempt to predict the future of civil forfeiture. The author then examines the growing conflicts in the lower Federal courts, especially in the fifth and ninth circuits. She suggests that civil forfeiture must soon be discarded as a system for punishment used in addition to the criminal system and that criminal forfeiture must be expanded to effect the same punishment in the more appropriate criminal setting. 149 footnotes