By Schroeder, William R.
The FBI Law Enforcement Bulletin , Vol. 65, No. 10
On February 12, 1996, the Attorney General of the United States issued a directive that urged all federal prosecutors and agents of the Federal Bureau of Investigation (FBI), Drug Enforcement Administration (DEA), and Immigration and Naturalization Service (INS) to reinvigorate their efforts in using asset forfeiture as a law enforcement tool. The Attorney General sought this additional commitment because asset forfeiture has proven to be one of the most effective methods available in the continuing battle against major drug traffickers, organized crime figures, and their criminal organizations. As the Attorney General pointed out in the directive, the failure to attack the economic infrastructure of criminals and their organizations seriously limits the effect that any prosecution of these criminals would have on improving the safety and welfare of the American public.(1)
A decline in the use of asset forfeiture by federal law enforcement over the past 2 years prompted this reinvigoration effort. Although a number of factors contributed to this decline, the loss of asset forfeiture's effectiveness in addressing serious crime and criminals is not one of them.
The forfeiture of property stifles the goals of those who, motivated by greed, engage in criminal activity. Forfeiture takes the profit out of crime, deprives the criminal of the money essential to finance future criminal conduct, and works to dismantle the financial underpinnings of the criminal organization.
This article discusses two recent Supreme Court cases affecting the use of civil forfeiture. The first case addresses one of the major reasons for the downward spiral in the use of assest forfeiture - the concern over double jeopardy. The second case addresses another issue that has contributed to the decline - the perception that civil forfeiture is unfair.
One major reason for the decline in asset forfeiture has been the concern that its use may bar subsequent criminal prosecution. Civil forfeiture, unlike its criminal counterpart, involves procedures that allow pretrial seizure of assets, requires a relatively low burden of proof on the part of the government, and is not contingent on an owner's conviction. These factors lead to the basis for the concern - whether the combination of criminal prosecution and civil forfeiture may be successive punishment for the same crime, in violation of the Double Jeopardy Clause of the fifth amendment.
In the past 2 years, a significant number of opinions issued by the courts focused on this dilemma.(2) Two lower court rulings, in particular, led to the Supreme Court decision regarding double jeopardy discussed in this article. An adverse decision by the Court could have freed hundreds of drug dealers across the United States, required the return of millions of dollars of ill-gotten gain,(3) and prevented the future use of one of the most important law enforcement tools available to attack the organizational infrastructure of criminal cartels.
Lower Court Holdings
In September 1994, the U.S. Court of Appeals for the Ninth Circuit reversed a forfeiture order against various properties valued at approximately $1 million that had been seized from convicted methamphetamine dealers.(4) The court found that the civil forfeiture of drug proceeds and property used in money laundering,(5) which followed the dealers' convictions on drug trafficking and money laundering charges, constituted "punishment" under the Double Jeopardy Clause of the fifth amendment.(6)
The court based its finding in large measure on two recent Supreme Court decisions, one involving double jeopardy and the other involving the Excessive Fines Clause of the eighth amendment.(7) Both of these cases involved findings by the Court that certain government civil sanctions, despite the "civil" label, could constitute punishment under the Constitution and, therefore, require greater protections. …