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Seizing Ill-Gotten Gains: Valid Drug-War Weapon Or 'Double Jeopardy'?

High court to decide if property confiscation punishes offenders twice for the same crime

THE Supreme Court yesterday heard one of the most important criminal cases of the term: Does the Constitution permit civil penalties, such as the seizure of property, in tandem with criminal cases?

Seizing property - civil forfeiture - has been a powerful weapon in the war on drugs being waged by federal and state law-enforcement agencies. But federal judges have increasingly been ruling against the practice, saying that under the Fifth Amendment no one can be punished twice for the same crime.

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Now the high court is expected to step in and attempt to clarify a complicated area of the law that affects not only drug cases, but also drunk driving, prison behavior, and a host of other criminal-justice issues.

Yesterday, the high court heard two cases in one. When Guy Jerome Ursery was arrested by Michigan police for growing 142 marijuana plants, he paid $13,250 in civil penalties to avoid losing his property. Then he got a 63-month prison term.

When Charles Wesley and James Wren went to prison in California for drug trafficking and money laundering, the US government also tried to impose a "civil forfeiture" penalty by seizing automobiles, boats, and cash owned by the two men.

In both cases, federal judges overruled the lower courts, arguing that civil forfeiture was a punishment not allowed under the Bill of Rights "double jeopardy" clause. Citing Supreme Court precedent, the judges argued that the men could not be prosecuted for a criminal offense and then also lose their property - even if it was obtained illegally.

The Fifth Amendment states that no "person [shall] be subject for the same offense to be twice put in jeopardy of life or limb."

State law-enforcement agencies were outraged by the rulings. Some 48 state attorneys general protested, arguing that civil penalties in criminal cases are not punishments but sanctions and that such penalties are necessary in the fight against all crime, not just drug dealing.

In the past, the Supreme Court has ruled that civil punishments can be regarded on a legal par with criminal punishments, if the punishment is based mainly on the same offense and is not treated as a separate crime in a different court.

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In a 1993 split decision, the high court ruled that property of arrested suspects could not be seized without due process. Writing for the court, Justice Anthony Kennedy stated: "Fair procedures are not confined to the innocent.... Individual freedom finds tangible expression in property rights."

Yet some experts say the high court may well find a legal basis to allow civil forfeiture of property in criminal cases, so long as due process is ensured.

"The decision will permeate so many levels of government action that this is one of the most important criminal cases of the term," says Notre Dame law professor Jimmy Gurule. "Double jeopardy has wreaked havoc with the states' efforts to perform their traditional role.... The states are having to make ludicrous choices in prosecuting crimes."

In recent years, double jeopardy penalties for drunk driving have become popular with the public, both as a punishment and as a safety measure. A drunken driver's license is suspended, and then the offender is tried on criminal charges. Many judges, however, oppose the two penalties and have been throwing out such charges by the thousands.

Double jeopardy in these cases is interpreted in such a scatter-shot manner that, in many states, a court in one town will hand out a double jeopardy penalty, while the court in the next will not.

The double jeopardy clause has implications in prisons, as well. If a prisoner assaults a guard, and the prisoner is penalized by the warden, can the guard also press charges? Or is that double jeopardy? The court is expected to rule by July.

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