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 Kennedy, concurring.

I join the Court's opinion and add these further observations.

In Austin v. United States, 509 U. S. 602, 619–622 (1993), we described the civil in rem forfeiture provision of 21 U. S. C. §881(a)(7) at issue here as punitive. In Libretti v. United States, 516 U. S. ___ (1995), we reviewed 21 U. S. C. §853, which in almost identical terms provides for criminal forfeiture of property involved in or derived from drug crimes. We held that the "fundamental nature of criminal forfeiture" is punishment. 516 U. S., at ___ (slip op. at 11). Today the Court holds that the civil in rem forfeitures here are not punishment implicating the protections of the Double Jeopardy Clause. Ante, at 24–25. I write to explain why, in my view, our holding is consistent with both Austin and Libretti.

The Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U. S. Const., Amdt. 5. We have interpreted the Double Jeopardy Clause to "protec[t] against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense." Justices of Boston Municipal Court v. Lydon, 466 U. S. 294, 306–307 (1984); Jones v. Thomas, 491 U. S. 376, 380–381 (1989).

Although there is language in our cases to the contrary, see One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693, 700 (1965); Boyd v. United States, 116 U. S. 616, 634 (1886), civil in rem forfeiture is not punishment of the wrongdoer for his criminal offense. We made this clear in Various Items of Personal Property v. United States, 282 U. S. 577 (1931), which the Court is right to deem the seminal case in this area, ante, at 5.

"[This] forfeiture proceeding . . . is in rem. It is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient. In a criminal prosecution it is the wrongdoer in person who is proceeded against, convicted and punished. The forfeiture is no part of the punishment for the criminal offense. The provision of the Fifth Amendment to the Constitution in respect of double jeopardy does not apply." 282 U. S., at 581 (citations omitted).

Embracing the rule of Various Items, that the Double Jeopardy Clause applies only to in personam punishments of the wrongdoer and not in rem forfeitures, does not imply that forfeiture inflicts no punishment. Though I have expressed my doubts about the view expressed in Austin, 509 U. S., at 611–618, that throughout history forfeitures have been intended to punish blameworthy owners, id., at 629 (opinion concurring in part and concurring in judgment); Bennis v. Michigan, 516 U. S. ___, ___ (1996) (dissenting opinion) (slip op. at 1–2), I did not there question the punitive nature of §881(a)(7), nor do I now. Under this statute, providing for the forfeiture of real property used to facilitate a drug offense, only the culpable stand to lose their property; no interest of any owner is forfeited if he can show he did not know of or consent to the crime. Ibid.

The key distinction is that the instrumentality-forfeiture statutes are not directed at those who carry out the crimes, but at owners who are culpable for the criminal misuse of the property. See Austin, supra, at 619 (statutory "exemptions serve to focus the provisions on the culpability of the owner"). The theory is that the property, whether or not illegal or dangerous in nature, is hazardous in the hands of this owner because either he uses it to commit crimes, or allows others do so. The owner can be held accountable for the misuse of the property. Cf. One 1958 Plymouth Sedan, supra, at 699 ("There is nothing even remotely criminal in possessing an automobile. It is only the alleged use to which this particular automobile was put that subjects [the owner] to its possible loss.") The same rationale is at work in the statutory provisions enabling forfeiture of currency "used or intended to be used" to facilitate a criminal offense, §881(a)(6). See also 18 U. S. C. §981(a)(1)(A) (property involved in money-laundering transactions or attempts in violation of 18 U. S. C. §1956). Since the punishment befalls any propertyholder who cannot claim statutory innocence, whether or not he committed any criminal acts, it is not a punishment for a person's criminal wrongdoing.

Forfeiture, then, punishes an owner by taking property involved in a crime, and it may happen that the owner is also the wrongdoer charged with a criminal offense. But the forfeiture is not a second in personam punishment for the offense, which is all the Double Jeopardy Clause prohibits. See ante, at 8 ("The forfeitures were not criminal punishments because they did not impose a second in personam penalty for the criminal defendant's wrongdoing."); One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 235 (1972) (per curiam) ("the forfeiture is not barred by the Double Jeop- ardy Clause of the Fifth Amendment because it in- volves neither two criminal trials nor two criminal punishments").

Civil in rem forfeiture has long been understood as independent of criminal punishments. In The Palmyra, 12 Wheat. 1 (1827), we rejected a claim that a libel in rem required a conviction for the criminal offense charged in the libel. Distinguishing forfeitures of a felon's goods and chattels, which required proof of a conviction, we noted that the statutory in rem "offence is attached primarily to the thing," and that often in rem forfeiture was imposed in the absence of any in personam penalty. Id., at 14. Examining American and English statutes, we concluded, "the practice has been, and so this Court understand[s] the law to be, that the proceeding in rem stands independent of, and wholly unaffected by any criminal proceeding in personam." Id., at 15.

Distinguishing between in rem and in personam punishments does not depend upon, or revive, the fiction alive in Various Items, supra, at 581, but condemned in Austin, supra, at 615, n. 9, that the property is punished as if it were a sentient being capable of moral choice. It is the owner who feels the pain and receives the stigma of the forfeiture, not the property. See United States v. United States Coin & Currency, 401 U. S. 715, 718 (1971). The distinction simply recognizes that Congress, in order to quiet title to forfeitable property in one proceeding, has structured the forfeiture action as a proceeding against the property, not against a particular defendant. Indeed, the Government will often file a forfeiture complaint without any knowledge of who the owner is. See ante, at 24. True, the forfeiture statutes require proof of a violation of a drug trafficking or other offense, but the purpose of this predicate showing is just to establish that the property was used in a crime. In contrast to criminal forfeiture, see 21 U. S. C. §853(a), civil in rem forfeiture actions do not require a showing that the owner who stands to lose his property interest has committed a criminal offense. See 21 U. S. C. §881(a)(6) ("any violation of this subchapter"); §881(a)(7) ("a violation of this subchapter"); 18 U. S. C. §981(a)(1)(A) ("a transaction or attempted transaction in violation of" 18 U. S. C. §1956). The offenses committed by Ursery, Arlt, and Wren were proffered as evidence that the property was used in a crime, but this does not make forfeiture a punishment for those offenses. See United States v. One Assortment of 89 Firearms, 465 U. S. 354, 366 (1984) (civil forfeiture is "not an additional penalty for the commission of a criminal act").

For this reason, Justice Stevens' attempt, post, at 22–23, to rely on the same-elements test of Blockburger v. United States, 284 U. S. 299, 304 (1932), is unavailing. Blockburger is a misfit in this context; it compares the elements of two offenses charged against a defendant. The forfeiture cause of action is not charging a second offense of the person; it is a proceeding against the property in which proof of a criminal violation by any person will suffice, provided that some knowledge of or consent to the crime on the part of the property owner is also established.

In Part II–C of its opinion, the Court conducts the two-part inquiry established in 89 Firearms, supra, at 362–366, as to whether, first, Congress intended the proceedings to be civil, and, second, the forfeitures are so punitive as to be criminal in nature and therefore subject to the Double Jeopardy Clause. Ante, at 20. The test was imported by the 89 Firearms Court from cases involving civil in personam penalties. See 465 U. S., at 362 (citing Helvering v. Mitchell, 303 U. S. 391, 398–399 (1938), and United States v. Ward, 448 U. S. 242, 248 (1980)). In the context of this case and the precedents bearing upon it, I am not sure the test adds much to the clear rule of Various Items that civil in rem forfeiture of property involved in a crime is not punishment subject to the Double Jeopardy Clause. As to the first prong of the test, any in rem proceeding is civil. As to the second prong, so long as forfeiture hinges on the property's use in a crime, there will always be the remedial purpose the Court identifies of preventing property owners from allowing their goods to be used for illegal purposes, ante, at 22. I acknowledge 89 Firearms to be precedent, however, and, because the Court's application of the test is consistent with Various Items, I join its opinion in full.