SUPREME COURT OF THE UNITED STATES

Nos. 95–345 and 95–346

UNITED STATES, PETITIONER

95–345	v.

GUY JEROME URSERY

on writ of certiorari to the united states court of appeals for the sixth circuit

UNITED STATES, PETITIONER

95–346	v.

$405,089.23 IN UNITED STATES CURRENCY et al.

on writ of certiorari to the united states court of appeals for the ninth circuit

[June 24, 1996]

Justice Stevens, concurring in the judgment in part and dissenting in part.

The question the Court poses is whether civil forfeitures constitute "punishment" for purposes of the Double Jeopardy Clause. Because the numerous federal statutes authorizing forfeitures cover such a wide variety of situations, it is quite wrong to assume that there is only one answer to that question. For purposes of analysis it is useful to identify three different categories of property that are subject to seizure: proceeds, contraband, and property that has played a part in the commission of a crime. The facts of these two cases illustrate the point.

In No. 95–346 the Government has forfeited $405,089.23 in currency. Those funds are the proceeds of unlawful activity. They are not property that respondents have any right to retain. The forfeiture of such proceeds, like the confiscation of money stolen from a bank, does not punish respondents because it exacts no price in liberty or lawfully derived property from them. I agree that the forfeiture of such proceeds is not punitive and therefore I concur in the Court's disposition of No. 95–346.

None of the property seized in No. 95–345 constituted proceeds of illegal activity. Indeed, the facts of that case reveal a dramatically different situation. Respondent Ursery cultivated marijuana in a heavily wooded area not far from his home in Shiawassee County, Michigan. The illegal substance was consumed by members of his family, but there is no evidence, and no contention by the Government, that he sold any of it to third parties. Acting on the basis of the incorrect assumption that the marijuana plants were on respondent's property, Michigan police officers executed a warrant to search the premises. In his house they found marijuana seeds, stems, stalks, and a growlight. I presume those items were seized, and I have no difficulty concluding that such a seizure does not constitute punishment because respondent had no right to possess contraband. Accordingly, I agree with the Court's opinion insofar as it explains why the forfeiture of contraband does not constitute punishment for double jeopardy purposes.

The critical question presented in No. 95–345 arose, not out of the seizure of contraband by the Michigan police, but rather out of the decision by the United States Attorney to take respondent's home. There is no evidence that the house had been purchased with the proceeds of unlawful activity and the house itself was surely not contraband. Nonetheless, 21 U. S. C. §881(a)(7) authorized the Government to seek forfeiture of respondent's residence because it had been used to facilitate the manufacture and distribution of marijuana. Respondent was then himself prosecuted for and convicted of manufacturing marijuana. In my opinion none of the reasons supporting the forfeiture of proceeds or contraband provides a sufficient basis for concluding that the confiscation of respondent's home was not punitive.

The Government has advanced four arguments in support of its position that the forfeiture of respondent's home under §881(a)(7) followed by his prosecution under §841(a)(1) did not violate the Double Jeopardy Clause: (1) the forfeiture was not punitive; (2) even if punitive, it was not a "jeopardy"; (3) even if both the forfeiture and the prosecution were jeopardies, they were not based on the same offense under the rule of Blockburger v. United States, 284 U. S. 299 (1932); and (4) in all events, the two cases should be deemed to constitute a single proceeding for double jeopardy purposes. Because the Court addresses only the first of these arguments, I shall begin by explaining why both reason and precedent support the conclusion that the taking of respondent's home was unmistakably punitive in character. I shall then comment on the other three arguments.

In recent years, both Congress and the state legislatures have armed their law enforcement authorities with new powers to forfeit property that vastly exceed their traditional tools. In response, this Court has reaf-firmed the fundamental proposition that all forfeitures must be accomplished within the constraints set by the Constitution. See, e.g., Austin v. United States, 509 U. S. 602 (1993); United States v. James Daniel Good Real Property, 510 U. S. 43 (1993). This Term the Court has begun dismantling the protections it so recently erected. In Bennis v. Michigan, 516 U. S. ___ (1996), the Court held that officials may confiscate an innocent person's automobile. And today, for the first time it upholds the forfeiture of a person's home. On the way to its surprising conclusion that the owner is not punished by the loss of his residence, the Court repeatedly professes its adherence to tradition and time-honored practice. As I discuss below, however, the decision shows a stunning disregard not only for modern precedents but for our older ones as well.

In the Court's view, the seminal case is Various Items of Personal Property v. United States, 282 U. S. 577 (1931), which approved the forfeiture of an illegal distillery by resort to the "legal fiction" that the distillery rather than its owner was being punished "as though it were conscious instead of inanimate and insentient." Id., at 581. Starting from that fanciful premise, the Court was able to conclude that confiscating the property after the owner was prosecuted for the underlying violations of the revenue laws did not offend the Double Jeopardy Clause.

According to the Court, Various Items established a categorical rule that the Double Jeopardy Clause was "inapplicable to civil forfeiture actions." Ante, at 6. The Court asserts that this rule has received "remarkably consistent" application and was "reaffirmed" by a pair of cases in 1972 and 1984. Ante, at 10, 7. In reality, however, shortly after its announcement, Various Items simply disappeared from our jurisprudence. We cited that case in only two decisions over the next seven years, and never again in nearly six decades. Neither of the two cases that supposedly "affirmed" Various Items—One Lot Emerald Cut Stones v. United States, 409 U. S. 232 (1972) (per curiam), and United States v. One Assortment of 89 Firearms, 465 U. S. 354 (1984)— even mentioned it.

More important, neither of those cases endorsed the asserted categorical rule that civil forfeitures never give rise to double jeopardy rights. Instead, each carefully considered the nature of the particular forfeiture at issue, classifying it as either "punitive" or "remedial," before deciding whether it implicated double jeopardy. Emerald Cut Stones concerned a customs statute that authorized confiscation of certain merchandise, in that case jewelry, that had been smuggled into the United States. The Court explained that the purpose of the statute was to remove such items from circulation, and that the penalty amounted to a reasonable liquidated damages award to reimburse the Government for the costs of enforcement and investigation. In those respects, therefore, it constituted a "remedial rather than punitive sanctio[n]." 409 U. S., at 237. In 89 Firearms, the Court explored in even greater detail the character of a federal statute that forfeited unregistered firearms. It reasoned that the sanction "further[ed] broad remedial aims" in preventing commerce in such weapons, and also covered a broader range of conduct than simply criminal behavior. 465 U. S., at 364. For those reasons, it was not properly characterized as a punitive sanction.

The majority, surprisingly, claims that Austin v. United States, 509 U. S. 602 (1993), "expressly recognized and approved" those decisions. Ante, at 18. But the Court creates the appearance that we endorsed its interpretation of 89 Firearms and Emerald Cut Stones by quoting selectively from Austin. We actually stated the following:

"The Double Jeopardy Clause has been held not to apply in civil forfeiture proceedings, but only in cases where the forfeiture could properly be characterized as remedial. See United States v. One Assortment of 89 Firearms, 465 U. S. 354, 364 (1984); One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 237 (1972); see generally United States v. Halper, 490 U. S. 435, 446–449 (1989) (Double Jeopardy Clause prohibits second sanction that may not be fairly characterized as remedial)." 509 U. S., at 608, n. 4 (emphasis added).

In reality, both cases rejected the monolithic view that all in rem civil forfeitures should be treated the same, and recognized the possibility that other types of forfeitures that could not "properly be characterized as remedial" might constitute "an additional penalty for the commission of a criminal act." 465 U. S., at 366.

That possibility was not merely speculative. The Court had already decided that other constitutional protections applied to forfeitures that had a punitive element. In Boyd v. United States, 116 U. S. 616 (1886), the Court held that compulsory production of an individual's private papers for use in a proceeding to forfeit his property for alleged fraud against the revenue laws violated both the Fourth Amendment and the Fifth Amendment's Self-Incrimination Clause. As the Court stated, "proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, though they may be civil in form, are in their nature criminal" and thus give rise to these constitutional safeguards. Id., at 634.

We reaffirmed Boyd twice during the span of time between our decisions in Various Items and 89 Firearms. In One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693 (1965), the Court unanimously repeated Boyd's conclusion that "a forfeiture proceeding is quasi-criminal in character" and "[i]ts object, like a criminal proceeding, is to penalize for the commission of an offense against the law." The Court therefore held that the Fourth Amendment applied to a proceeding to forfeit an automobile used to transport illegally manufactured liquor. Id., at 700.

Even more significant is United States v. United States Coin & Currency, 401 U. S. 715 (1971), in which the Court again held that the Fifth Amendment applied to forfeiture proceedings. Coin & Currency involved the confiscation of gambling money under a statute, quite similar to 21 U. S. C. §881, providing that "[i]t shall be unlawful to have or possess any property intended for use in violating the provisions of the internal revenue laws . . . and no property right shall exist in any such property." Id., at 716 (citing 26 U. S. C. §7302). The Court held that the Fifth Amendment barred the Government's attempt to introduce evidence of the defendant's failure to file required tax forms against him in the forfeiture proceeding. Following Boyd, the Court explained that the form of the proceeding as civil or criminal could not have any bearing on the rights that attached when the sanction was a penalty. "From the relevant constitutional standpoint, there is no difference between a man who `forfeits' $8,674 because he has used the money in illegal gambling activities and a man who pays a `criminal fine' of $8,674 as a result of the same course of conduct." 401 U. S., at 718. In each case, the Court reasoned, the liability derives from the same offense of the owner; hence, "the Fifth Amendment applies with equal force." Ibid.

Emerald Cut Stones expressly recognized the continuing validity of Coin & Currency and One 1958 Plymouth Sedan. It distinguished the customs statute in that case because the forfeiture did not depend on the fact of a criminal offense or conviction. See 409 U. S., at 236, n. 6. See also United States v. Ward, 448 U. S. 242, 254 (1980) (discussing Boyd). That recognition is critical. For whatever its connection to the Excessive Fines Clause of the Eighth Amendment, the Double Jeopardy Clause is part of the same Amendment as the Self-Incrimination Clause, and ought to be interpreted in pari materia. By confining its holding to civil forfeitures fairly characterized as remedial, and by distinguishing cases that had applied the Fifth Amendment to other types of forfeitures, Emerald Cut Stones and 89 Firearms recognized the possibility that the Double Jeopardy Clause might apply to certain punitive civil forfeiture proceedings. One of the mysteries of the Court's opinion is that although it claims that civil in rem forfeiture cannot be understood as punishment, it devotes Part II–C to examining the actual purposes of the forfeiture in this case and "proving" that they are not punitive. If the Court truly adhered to the logic of its position, that entire section would be unnecessary.

Read properly, therefore, 89 Firearms and Emerald Cut Stones are not inconsistent with, but set the stage for the modern understanding of how the Double Jeopardy Clause applies in nominally civil proceedings. That understanding has been developed in a trio of recent decisions: United States v. Halper, 490 U. S. 435 (1989), Austin v. United States, 509 U. S. 602 (1993), and Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. ___ (1994). The court of appeals found that the combined effect of two of those decisions—Halper and Austin—established the proposition that forfeitures under 21 U. S. C. §881(a)(7) implicated double jeopardy. This Court rejects that conclusion, asserting that none of these cases changed the "oft-affirmed rule" of Various Items. Ante, at 10.

It is the majority, however, that has "misread" Halper, Austin, and Kurth Ranch by artificially cabining each to a separate sphere, see ante, at 20, and treating the three as if they concerned unrelated subjects. In fact, all three were devoted to the common enterprise of giving meaning to the idea of "punishment," a concept that plays a central role in the jurisprudence of both the Excessive Fines Clause and the Double Jeopardy Clause. Halper laid down a general rule for applying the Double Jeopardy Clause to civil proceedings:

"[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. . . . We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." 490 U. S., at 448–449.

In the past seven years, we have applied that same rule to three types of sanctions: civil penalties, civil forfeitures, and taxes.

The first was the subject of Halper itself. The defendant had been convicted for submitting 65 false claims for reimbursement (seeking $12 for each, when the actual services rendered entitled him to only $3) to a Medicare provider, and sentenced to imprisonment for 2 years and a $5,000 fine. The Government then brought a civil action against him for the same offenses. The penalty for violating the civil false-claims statute consisted of double the Government's damages plus court costs and a fixed fine of $2,000 per false claim. See id., at 438. Accordingly, the Government sought a penalty of $130,000, although the defendant's fraud had caused an actual loss of only $585. Applying the definition of "punishment" given above, the Court first held that the fixed $2,000 fine served a remedial purpose because it was designed to compensate the Government "roughly" for the costs of law enforcement and investigation. Id., at 445. Despite finding that the fine was not by nature punitive, the Court went on to consider whether the sanction "as applied in the individual case," id., at 448, amounted to punishment. It answered that question in the affirmative, for the applied sanction created a "tremendous disparity" with the amount of harm the defendant actually caused. Id., at 452. The Court explained that, as a rule, a fixed penalty that would otherwise serve remedial ends could still punish the defendant if the imposed amount was out of all proportion to the damage done.

The second category of sanctions—civil forfeitures—was the subject of Austin. In that case, the Government sought to forfeit the petitioner's mobile home and auto body shop as instrumentalities of the drug trade under 21 U. S. C. §§881(a)(4) and (a)(7) because he had sold cocaine there. Applying Halper's definition of punishment, see 509 U. S., at 610, 621, we held that §§881(a)(4) and (a)(7) must be considered to qualify as such, partly because forfeitures have historically been understood as punishment and more importantly because no remedial purpose underlay the sanction the statute created. Merely compensating the Government for its costs, as in Halper, could not justify the forfeiture scheme because "[t]he value of the conveyances and real property forfeitable under §§881(a)(4) and (a)(7) . . . can vary so dramatically that any relationship between the Government's actual costs and the amount of the sanction is merely coincidental." 509 U. S., at 622, n. 14. Accordingly, we held that any forfeiture was subject to the constraints of the Excessive Fines Clause of the Eighth Amendment.

The Court expends a great deal of effort attempting to distinguish Austin away as purely an excessive fines case. The Court states, for example, that it is "difficult to see" how one would apply the "rule of Halper" to a civil forfeiture such as was present in Austin. Ante, at 15. But the Court conflates the two different rules that Halper announced. As discussed above, Austin expressly quoted Halper and followed its general rule that a sanction should be characterized as "punishment" if it serves any punitive end. See 509 U. S., at 610, 621. It relegated to a footnote Halper's narrower rule—the one for the "rare case," which requires an accounting of the Government's damages and costs—because it had already decided that the statute was of a punitive character. 509 U. S., at 622, n. 14. That approach was perfectly appropriate. There is no need to determine whether a statute that is punitive by design has a punitive effect when applied in the individual case. Halper is entirely consistent with Austin, because it determined first that the sanction there generally did not have a punitive character before it considered whether some applications might be punitive nonetheless.

The majority implies that Austin's "categorical approach" is somehow suspect as an application of double jeopardy jurisprudence, ante, at 18, but Kurth Ranch definitively refutes that suggestion. The sanction there was a tax imposed on marijuana and applied to a taxpayer who had already been prosecuted for ownership of the drugs sought to be taxed. Again applying Halper's definition of punishment, see 511 U. S., at ___ (slip op., at 9–10), we considered the nature of the tax, focusing on several unusual features that distinguished it from ordinary revenue-raising provisions, and concluded that it was motivated by a "penal and prohibitory intent." Id., at ___ (slip op., at 14). On that basis, we held that imposition of the tax after criminal prosecution of the taxpayer violated double jeopardy. The approach taken was thus identical to that followed in Austin. By considering and rejecting each of the asserted "remedial" interests served by the sanction, we reasoned that the tax had an "unmistakable punitive character" that rendered it punishment in all of its applications. 511 U. S., at ___ (slip op., at 16).

The claim that Halper's "case-by-case" method is "impossible to apply" to forfeitures or taxes, ante, at 17, thus misses the point. It is true that since fixed penalties can serve only one remedial end (compensation), it is easy to determine whether a particular fine is punitive in application. Forfeitures and taxes, generally speaking, may have a number of remedial rationales. But to decide if a sanction is punitive, one need only examine each claimed remedial interest and determine whether the sanction actually promotes it. Many of our cases have followed just such an approach, regardless of whether any nonpunitive purpose can be "quantif[ied]," ante, at 16. See, e.g., Austin; One 1958 Plymouth Sedan. The majority itself embarks on such an inquiry in Part II–C of its opinion. Furthermore, even in the context of forfeitures and taxes, nothing prevents a court from deciding that although a sanction is designed to be remedial, its application in a particular case is so extreme as to constitute punishment. Austin, 509 U. S., at 608, n. 4.

In reaching the conclusion that the civil forfeiture at issue yielded punishment, the Austin Court surveyed the history of civil forfeitures at some length. That history is replete with expressions of the idea that forfeitures constitute punishment. But it was not necessary in Austin, strictly speaking, to decide that all in rem forfeitures are punitive. As Justice Scalia emphasized in his separate opinion, it was only necessary to characterize the specific "in rem forfeiture in this case." 509 U. S., at 626 (concurring in part and concurring in judgment). The punitive nature of §§881(a)(4) and (a)(7) was accepted by every Member of the Austin Court. The majority offered several reasons for its holding. The applicable provisions expressly provided an "innocent owner" defense, indicating that culpability was a requirement for forfeiture. Further, the provisions tied forfeiture directly to the commission of narcotics offenses. Id., at 620. Finally, the legislative history indicated that the provisions were necessary because traditional criminal sanctions were "`inadequate to deter or pun- ish.'" Ibid. (quoting S. Rep. No. 98–225, p. 191 (1983)). In sum, it was unanimously agreed that "[s]tatutory forfeitures under §881(a) are certainly payment (in kind), to a sovereign as punishment for an offense." 509 U. S., at 626–627 (Scalia, J., concurring in part and concurring in judgment) (emphasis in original).

Remarkably, the Court today stands Austin on its head—a decision rendered only three years ago, with unanimity on the pertinent points—and concludes that §881(a)(7) is remedial rather than punitive in character. Every reason Austin gave for treating §881(a)(7) as punitive—the Court rejects or ignores. Every reason the Court provides for treating §881(a)(7) as remedial— Austin rebuffed. The Court claims that its conclusion is consistent with decisions reviewing statutes "indistinguishable" "in most significant respects" from §881(a)(7), ante, at 20, but ignores the fact that Austin reached the opposite conclusion as to the identical statute under review here.

First, the Court supposes that forfeiture of respondent's house is remedial in nature because it was an instrumentality of a drug crime. It is perfectly conceivable that certain kinds of instruments used in the commission of crimes could be forfeited for remedial purposes. Items whose principal use is illegal—for example, the distillery in Various Items—might be thus forfeitable. But it is difficult to understand how a house in which marijuana was found helped to substantially "facilitate" a narcotics offense, or how forfeiture of that house will meaningfully thwart the drug trade. In Austin, we rejected the argument that a mobile home and body shop were "instruments" of drug trafficking simply because marijuana was sold out of them. I see no basis for a distinction here.

Second, the Court claims that the statute serves the purpose of deterrence, which helps to show that it is remedial rather than punitive in character. Ante, at 24. That statement cannot be squared with our prece dents. Halper expressly held, and Austin and Kurth Ranch reaffirmed, that "a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment" for purposes of the Double Jeopardy Clause. 490 U. S., at 448. "`Retribution and deterrence are not legitimate nonpunitive governmental objectives.'" Ibid. (emphasis added) (quoting Bell v. Wolfish, 441 U. S. 520, 539, n. 20 (1979)). To say otherwise is to renounce Halper's central holding. If deterrence is a legitimate remedial rationale "distinct from" any punitive purpose, ante, at 23, then the $130,000 fine in Halper could not be condemned as excessive because it plainly served a powerful deterrent function. It was a premise of the Court's analysis in that case that deterrence could not justify a penal sanction. As in Bennis v. Michigan, where the Court first announced this new view of deterrence, it simply ignores Halper without explanation or comment. See 516 U. S., at ___ (slip op., at 12) (Stevens, J., dissenting).

For good measure, the Court also rejects two considerations that persuaded the majority in Austin to find 21 U. S. C. §881(a)(7) a punitive statute. The Court first asserts that the statute contains no scienter requirement and property may be forfeited summarily if no one files claim to it. Ante, at 24 (citing 19 U. S. C. §1609). Property that is not claimed, however, is considered abandoned; it proves nothing that the Government is able to forfeit property that no one owns. Any time the Government seeks to forfeit claimed property, it must prove that the claimant is culpable, for the statute contains an express "innocent owner" exception. Today the Court finds the structure of the statute irrelevant, but Austin said that the exemption for innocent owners "makes [the statute] look more like punishment." 509 U. S., at 619. In United States v. United States Coin & Currency, 401 U. S. 715 (1971), the Court found a forfeiture statute punitive on the basis of discretionary authority granted to the Secretary of the Treasury to remit property to innocent owners that was provided by a different statute.

Finally, the Court announces that the fact that the statute is "tied to criminal activity" is insufficient to render it punitive. Ante, at 24. Austin expressly relied on Congress' decision to "tie forfeiture directly to the commission of drug offenses" as evidence that it was intended to be punitive. 509 U. S., at 620.

The recurrent theme of the Court's opinion is that there is some mystical difference between in rem and in personam proceedings, such that only the latter can give rise to double jeopardy concerns. The Court claims that "[s]ince at least Various Items," we have drawn this distinction for purposes of applying relevant constitutional provisions. Ante, at 14–15. That statement, however, is incorrect. We have repeatedly rejected the idea that the nature of the court's jurisdiction has any bearing on the constitutional protections that apply at a proceeding before it. "From the relevant constitutional standpoint, there is no difference between a man who `forfeits' $8,674 because he has used the money in illegal gambling activities and a man who pays a `criminal fine' of $8,674 as a result of the same course of conduct." Coin & Currency, 401 U. S., at 718. See also One 1958 Plymouth Sedan, 380 U. S., at 701, n. 11; Boyd, 116 U. S., at 638. Most recently, in our application of Halper's definition of punishment, we stated that "[w]e do not understand the Government to rely separately on the technical distinction between proceedings in rem and proceedings in personam, but we note that any such reliance would be misplaced." Austin, 509 U. S., at 615, n. 9.

The notion that the label attached to the proceeding is dispositive runs contrary to the trend of our recent cases. In Halper we stated that "the labels `criminal' and `civil' are not of paramount importance" in determining whether a proceeding punishes an individual. 490 U. S., at 447. In Kurth Ranch we held that the Double Jeopardy Clause applies to punitive proceedings even if they are labeled a tax. Indeed, in reaching that conclusion, we followed a 1931 decision that noted that a tax statute might be considered punitive for double jeopardy purposes. It is thus far too late in the day to contend that the label placed on a punitive proceeding determines whether it is covered by the Double Jeopardy Clause.

The pedantic distinction between in rem and in personam actions is ultimately only a cover for the real basis for the Court's decision: the idea that the property, not the owner, is being "punished" for offenses of which it is "guilty." Although the Court prefers not to rely on this notorious fiction too blatantly, its repeated citations to Various Items make clear that the Court believes respondent's home was "guilty" of the drug offenses with which he was charged. See ante, at 15. On that rationale, of course, the case is easy. The owner of the property is not being punished when the Government confiscates it, just the property. The same sleight-of-hand would have worked in Austin, too: The owner of the property is not being excessively fined, just the property itself. Despite the Government's heavy reliance on that fiction in Austin, we did not allow it to stand in the way of our holding that the seizure of property may punish the owner.

Even if the point had not been settled by prior decisions, common sense would dictate the result in this case. There is simply no rational basis for characterizing the seizure of this respondent's home as anything other than punishment for his crime. The house was neither proceeds nor contraband and its value had no relation to the Government's authority to seize it. Under the controlling statute an essential predicate for the forfeiture was proof that respondent had used the property in connection with the commission of a crime. The forfeiture of this property was unquestionably "a penalty that had absolutely no correlation to any damages sustained by society or to the cost of enforcing the law." United States v. Ward, 448 U. S., at 254. As we unanimously recognized in Halper, formalistic distinctions that obscure the obvious practical consequences of governmental action disserve the "`humane interests'" protected by the Double Jeopardy Clause. 490 U. S., at 447, quoting United States ex rel. Marcus v. Hess, 317 U. S. 537, 554 (1943) (Frankfurter, J., concurring). Fidelity to both reason and precedent dictates the conclusion that this forfeiture was "punishment" for purposes of the Double Jeopardy Clause.

The Government also argues that the word "jeopardy" refers only to a criminal proceeding, and that our cases precluding two punishments for the same offense apply only to situations in which the first punishment was imposed after conviction of a crime. In this case the civil forfeiture proceeding antedated the filing of the criminal charge. Since the civil case was not a "jeopardy," the argument runs, the criminal case was the first, rather than the second, jeopardy. This argument is foreclosed by our decisions in Halper and Kurth Ranch.

Although the point was not expressly mentioned in either case, both holdings necessarily rested on the assumption that the civil proceeding in which the second punishment was imposed was a "jeopardy" within the meaning of the Fifth Amendment. Otherwise there would have been no basis for concluding that the defendants had been "twice put in jeopardy" as the text of the Clause forbids. The prohibition against two such proceedings cannot depend on the order in which they are filed. Cf. Kurth Ranch, 511 U. S., at ___ (slip op., at 7) (Scalia, J., dissenting) ("if there is a constitutional prohibition on multiple punishments, the order of punishment cannot possibly make any difference").

The Government's third argument is that the civil forfeiture and the criminal proceeding did not involve the same offense. The Government relies principally on Blockburger v. United States, 284 U. S. 299 (1932), in which we held that for double jeopardy purposes two statutes define different offenses if "each provision requires proof of a fact which the other does not." Id., at 304. The application of that test would avoid any double jeopardy objection to a forfeiture followed by a prosecution—or a prosecution followed by a forfeit ure—whenever the seizure could be supported without proof that the defendant committed a crime and the conviction did not require proof that the forfeited property had been used illegally.

Thus, if instead of forfeiting Ursery's home the Government had decided to forfeit his neighbor's property where the marijuana was grown, the Blockburger rule would avoid any double jeopardy objection to either the forfeiture or respondent's prosecution. In that scenario, the forfeiture could be supported without proof that Ursery violated the law and Ursery could be convicted without proof that he harvested the marijuana on property owned by someone else.

The rule does, however, bar this conviction because the elements that the Government was required to allege and prove to sustain the forfeiture of Ursery's home under §881(a)(7) included each of the elements of the offense for which he was later convicted. As in Illinois v. Vitale, 447 U. S. 410 (1980), and Harris v. Oklahoma, 433 U. S. 682 (1977) (per curiam), the fact that the "greater" offense (here, the forfeiture) could have been proved by means of a different "lesser" offense does not negate the fact that in this instance it was proved by resort to the same elements as the criminal offense. This conclusion also accords with our oft-repeated under standing of the relationship between a civil forfeiture and the underlying offense. See, e.g., One 1958 Plymouth Sedan, 380 U. S., at 701 ("the forfeiture is clearly a penalty for the criminal offense"); Boyd, 116 U. S., at 634 (describing sanction as "proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him"). Accordingly, under the analysis we unanimously applied most recently in Rutledge v. United States, 517 U. S. ___ (1996), the criminal charge was a lesser-included offense of the forfeiture and therefore constituted a second jeopardy.

Justice Kennedy joins the Court's opinion and therefore ought to agree with the majority that civil forfeitures do not constitute punishment for purposes of the Double Jeopardy Clause. In fact, however, he recognizes that "[f]orfeiture . . . punishes an owner by taking property involved in a crime." Ante, at 3. His real objection is that a forfeiture does not punish for the same offense as the underlying criminal conviction.

Justice Kennedy theorizes that civil forfeiture punishes for the misuse of property. Ibid. It might be true that some forfeiture statutes are best described as creating a sanction for misuse, as opposed to (but perhaps in addition to) a sanction for the substantive criminal offense. But, again, this statute is not structured that way. Section 881(a)(7) incorporates the criminal offense itself as the predicate for the forfeiture. See 21 U. S. C. §881(a)(7) (subjecting to forfeiture "[a]ll real property . . . which is used . . . to commit . . . a violation of this subchapter punishable by more than one year's imprisonment"). Furthermore, the innocent owner exemption in the same subsection provides that "no property shall be forfeited under this paragraph . . . by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner." Ibid. (emphasis added). In Austin, we held that the exemption revealed a "congressional intent to punish only those involved in drug trafficking" because "`the traditional criminal sanctions . . . are inadequate to deter or punish the enormously profitable trade in dangerous drugs.'" 509 U. S., at 619, 620 (quoting S. Rep. No. 98–225, p. 191 (1983)). See also 509 U. S., at 628 (Scalia, J., concurring in part and concurring in judgment) (suggesting that proportionality of a forfeiture be measured by the relationship of the property to the underlying offense). Again, these statements accord with common sense: forfeiting respondent's house punished him for the same narcotics violations as his criminal conviction.

The final argument advanced by the Government is that the forfeiture and the criminal conviction should be treated as having occurred in the same proceeding because both were commenced before a final judgment was entered in either. Emphasizing the fact that the Double Jeopardy Clause, and particularly the prohibition against multiple punishments for the same offense, protects the defendant's legitimate expectation of finality in the original sentence, the Government maintains that such an expectation could not arise until after one proceeding was completed. Moreover, it argues, the civil and criminal sanctions "cannot be (and never have been) joined together in a single trial under our system of justice." Brief for United States 55.

This argument is unpersuasive because it is simply inaccurate to describe two separate proceedings as one. I also cannot agree with the Government's view that there is any procedural obstacle to including a punitive forfeiture in the final judgment entered in a criminal case. The sentencing proceeding does not commence until after the defendant has been found guilty, and I do not see why that proceeding should not encompass all of the punitive sanctions that are warranted by the conviction. Indeed, a draft of a proposed amendment to the Federal Rules of Criminal Procedure envisions precisely that procedure. See Fed. Rule Crim. Proc. 32(d)(2) (eff. Dec. 1, 1996). If, as we have already determined, the "civil" forfeitures pursuant to §881(a)(7) are in fact punitive, a single judgment encompassing the entire punishment for the defendant's offense is precisely what the Double Jeopardy Clause requires. Congress' decision to create novel and additional penalties should not be permitted to eviscerate the protection against governmental overreaching embodied in the Double Jeopardy Clause. That protection has far deeper roots than the relatively recent enactments that have so dramatically expanded the sov ereign's power to forfeit private property.

* * *

One final example may illustrate the depth of my concern that the Court's treatment of our cases has cut deeply into a guarantee deemed fundamental by the Founders. The Court relies heavily on a few early decisions that involved the forfeiture of vessels whose entire mission was unlawful and on the Prohibition-era precedent sustaining the forfeiture of a distillery—a property that served no purpose other than the manufacture of illegal spirits. Notably none of those early cases involved the forfeiture of a home as a form of punishment for misconduct that occurred therein. Consider how drastic the remedy would have been if Congress in 1931 had authorized the forfeiture of every home in which alcoholic beverages were consumed. Under the Court's reasoning, I fear that the label "civil," or perhaps "in rem," would have been sufficient to avoid characterizing such forfeitures as "punitive" for purposes of the Double Jeopardy Clause. Our recent decisions in Halper, Austin, and Kurth Ranch, dictate a far different conclusion. I remain persuaded that those cases were correctly decided and should be followed today.

Accordingly, I respectfully dissent from the judgment in No. 95–345.