At a time when anti-government sentiment is running high in some quarters, the U.S. Supreme Court is considering several cases on the hot-button issue of government seizure of private property linked to crimes, known as asset forfeitures

Reuben, Richard C

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University of Missouri School of Law

University of Missouri School of Law Scholarship RepositoryFaculty Publications Faculty Scholarship1995One Crime, Two Punishments - Asset ForfeitureCases Offer Chance to Sort out Double JeopardyIssuesRichard C. ReubenUniversity of Missouri School of Law, reubenr@missouri.eduFollow this and additional works at: https://scholarship.law.missouri.edu/facpubsPart of the Courts CommonsThis Article is brought to you for free and open access by the Faculty Scholarship at University of Missouri School of Law Scholarship Repository. It hasbeen accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. Formore information, please contact bassettcw@missouri.edu.Recommended CitationRichard C. Reuben, One Crime, Two Punishments - Asset Forfeiture Cases Offer Chance to Sort out Double Jeopardy Issues, 81 ABAJournal 38 (1995).Available at: https://scholarship.law.missouri.edu/facpubs/831SSUPREME COURT PREVIEWOne Crime, Two PunishmentsAsset forfeiture cases offer chance to sort out double jeopardy issuesBY RICHARD C. REUBENAt a time when anti-govern-ment sentiment is running high insome quarters, the U.S. SupremeCourt is considering several caseson the hot-button issue of govern-ment seizure of private propertylinked to crimes, known as assetforfeitures.Critics of big government "mightwell point to forfeiture as anotherexample of the problems that comewith entrusting matters to a bu-reaucracy, particularly one with afinancial interest that could skewlaw enforcement decisions," observesforfeiture expert Gary M. Maveal, alaw professor at the University ofDetroit Mercy School of Law.The justices already haveheard arguments in two cases thisfall, and are expected to add at leastone or two others to the docket.Congress began dramaticallyexpanding the forfeiture power in1984. There are now more than 100such federal laws, and civil forfei-ture proceedings have become a keyweapon in the war on crime anddrugs.But critics claim asset forfei-ture gives unfair leverage to thegovernment in criminal cases. "Itallows the government to whipsawthe forfeiture claimant by forcinghim to defend on both the civil andcriminal fronts," says Richard J.Troberman, a Seattle lawyer whochairs the Forfeiture Abuse TaskForce of the National Association ofCriminal Defense Lawyers.The Supreme Court, in its cur-rent conservative mode, might beexpected to be sympathetic to pros-ecution needs. But forfeiture is onearea in which the Court has beenputting on the brakes, issuing fourpro-defendant opinions since 1992.This paradox speaks directly tofissures in conservative legalthought. Crime is abhorrent, beyonda doubt, but in the view of conserv-atives, so is unchecked govern-ment-particularly when it exercis-es its power by confiscating privateproperty.That tension is apparentRichard C. Reuben, a lawyer,is a reporter for the ABA Journal.38 ABA JOURNAL / DECEMBER 1995throughout this term's cases.For instance, Bennis v. Michi-gan, No. 94-8729, argued in No-vember, questions whether the gov-ernment may seize the property ofan innocent party.Bennis involves the confisca-tion by Detroit police, under statelaw, of a car in which they caughtJohn Bennig in a sex act with aknown prostitute.The Michigan courts upheldthe forfeiture of Tina Bennis' halfMepnan -lerpel neiped I ina bennis seek e reinterest in the car, even though shedid not know her husband wasusing it for illicit purposes.Before the Supreme Court,Mrs. Bennis is challenging that rul-ing on grounds that the forfeiturewas an unconstitutional 'taking" ofprivate property.Forfeiture of Third-Party InterestsInnocent owners also factoredinto Libretti v. United States, No.94-7427, which was argued beforethe Court on Oct. 3.Midway through his drug-crimes trial, Joseph V. Librettiagreed to a deal with prosecutorsthat included the forfeiture of alltainted property. After the plea wasentered, however, several third par-ties challenged the forfeiture, con-tending that their innocent inter-ests were being forfeited, as well.Reversing the trial court, the10th U.S. Circuit Court of Appealsat Denver held that trial courts donot have to find a factual basis forforfeiture under Rule 11(f) of theFederal Rules of Criminal Proce-dure because forfeiture is part ofthe plea-bargained punishmentrather than a part of the substan-tive offense.The impact of these casesmay prove limited. Most state andfederal statutes, for instance, arebelieved to include specific exemp-tions for innocentowners.Similarly, fed-eral forfeiture pol-icy has changedsince the lowercourts consideredLibretti, and nowcalls for prosecu-tors to suggestthat trial courtsfind a factual ba-sis for forfeitures.The Court isexpected, howev-er, to move intomore fundamen-tal ground laterthis term by grant-ing review on themore controversialissue of whether aecovery of her car. prior civil forfei-ture action bars acriminal prosecution, or vice versa,under the double jeopardy clause ofthe Fifth Amendment.At least two federal circuitcourts earlier this year held thatdouble jeopardy bars the subsequentcriminal action, in United States v.$405,089.23 U.S. Currency, 33 F.3d1210 (9th Cir.) and United States v.Ursery, 59 F.3d 568 (6th Cir.)."These rulings have thrownforfeiture into present turmoil be-cause of the uncertainty in thelaw," says Stefan D. Cassella, aleading trial attorney in the JusticeDepartment's forfeiture program.A Supreme Court decision bar-ring civil forfeiture and criminal pro-secution in the same case, he says,would force prosecutors "to choosebetween seeking a criminal prose-cution and a civil forfeiture in caseswhere there is no criminal forfei-ture statute." UABAJ/WUSS MARSHALL

One Crime, Two Punishments - Asset Forfeiture Cases Offer Chance to Sort out Double Jeopardy Issues

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One Crime, Two Punishments - Asset Forfeiture Cases Offer Chance to Sort out Double Jeopardy Issues

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