UNITED STATES, Petitioner,
[p. 270] Chief Justice REHNQUIST delivered the opinion of the Court.
In separate cases, the United States Court of Appeals for the Sixth Circuit and the United States Court of Appeals for the Ninth Circuit held that the Double Jeopardy Clause prohibits the Government from both punishing a defendant for a criminal offense and forfeiting his property for that same offense in a separate civil proceeding. We consolidated those cases for our review, and now reverse. These civil forfeitures (and civil forfeitures generally), we hold, do [p. 271] not constitute "punishment" for purposes of the Double Jeopardy Clause.
No. 95-345: Michigan Police found marijuana growing adjacent to respondent Guy Ursery's house, and discovered marijuana seeds, stems, stalks, and a growlight within the house. The United States instituted civil forfeiture proceedings against the house, alleging that the property was subject to forfeiture under 84 Stat. 1276, as amended, 21 U.S.C. § 881(a)(7) because it had been used for several years to facilitate the unlawful processing and distribution of a controlled substance. Ursery ultimately paid the United States $13,250 to settle the forfeiture claim in full. Shortly before the settlement was consummated, Ursery was indicted for manufacturing marijuana, in violation of § 841(a)(1). A jury found him guilty, and he was sentenced to 63 months in prison.
The Court of Appeals for the Sixth Circuit by a divided vote reversed Ursery's criminal conviction, holding that the conviction violated the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. 59 F.3d 568 (1995). The court based its conclusion in part upon its belief that our decisions in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), meant that any civil forfeiture under § 881(a)(7) constitutes punishment for purposes of the Double Jeopardy Clause. Ursery, in the court's view, had therefore been "punished" in the forfeiture proceeding against his property, and could not be subsequently criminally tried for violation of 21 U.S.C. § 841(a)(1).
No. 95-346: Following a jury trial, Charles Wesley Arlt and James Wren were convicted of: conspiracy to aid and abet the manufacture of methamphetamine, in violation of 21 U.S.C. § 846; conspiracy to launder monetary instruments, in violation of 18 U.S.C. § 371; and numerous counts of money laundering, in violation of § 1956. The District Court [p. 272] sentenced Arlt to life in prison and a 10-year term of supervised release, and imposed a fine of $250,000. Wren was sentenced to life imprisonment and a 5-year term of supervised release.
Before the criminal trial had started, the United States had filed a civil in rem complaint against various property seized from, or titled to, Arlt and Wren, or Payback Mines, a corporation controlled by Arlt. The complaint alleged that each piece of property was subject to forfeiture both under 18 U.S.C. § 981(a)(1)(A), which provides that "[a]ny property ... involved in a transaction or attempted transaction in violation of" § 1956 (the money- laundering statute) "is subject to forfeiture to the United States"; and under 21 U.S.C. § 881(a)(6), which provides for the forfeiture of (i) "[a]ll ... things of value furnished or intended to be furnished by any person in exchange for" illegal drugs, (ii) "all proceeds traceable to such an exchange," and (iii) "all moneys, negotiable instruments, and securities used or intended to be used to facilitate" a federal drug felony. The parties agreed to defer litigation of the forfeiture action during the criminal prosecution. More than a year after the conclusion of the criminal trial, the District Court granted the Government's motion for summary judgment in the civil forfeiture proceeding.
Arlt and Wren appealed the decision in the forfeiture action, and the Court of Appeals for the Ninth Circuit reversed, holding that the forfeiture violated the Double Jeopardy Clause. 33 F.3d 1210 (1994). The court's decision was based in part upon the same view as that expressed by the Court of Appeals for the Sixth Circuit in Ursery's case--that our decisions in Halper, supra, and Austin, supra, meant that, as a categorical matter, forfeitures under § 981(a)(1)(A) and § 881(a)(6) always constitute "punishment."
We granted the Government's petition for certiorari in each of the two cases, and we now reverse. 516 U.S. ----, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1996).
[p. 273] II
The Double Jeopardy Clause provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const., Amdt. 5. The Clause serves the function of preventing both "successive punishments and ... successive prosecutions." United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993), citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The protection against multiple punishments prohibits the Government from " 'punishing twice, or attempting a second time to punish criminally for the same offense.' " Witte v. United States, 515 U.S. 389, ----, 115 S.Ct. 2199, 2204, 132 L.Ed.2d 351 (1995) (emphasis omitted), quoting Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938).
In the decisions that we review, the Courts of Appeals held that the civil forfeitures constituted "punishment," making them subject to the prohibitions of the Double Jeopardy Clause. The Government challenges that characterization of the forfeitures, arguing that the courts were wrong to conclude that civil forfeitures are punitive for double jeopardy purposes.
[p. 274] A
Since the earliest years of this Nation, Congress has authorized the Government to seek parallel in rem civil forfeiture actions and criminal prosecutions based upon the same underlying events. See, e.g., Act of July 31, 1789, ch. 5, § 12, 1 Stat. 39 (goods unloaded at night or without a permit subject to forfeiture and persons unloading subject to criminal prosecution); § 25, id., at 43 (persons convicted of buying or concealing illegally imported goods subject to both monetary fine and in rem forfeiture of the goods); § 34, id., at 46 (imposing criminal penalty and in rem forfeiture where person convicted of relanding goods entitled to drawback); see also The Palmyra, 12 Wheat. 1, 14-15, 6 L.Ed. 531 (1827) ("Many cases exist, where there is both a forfeiture in rem and a personal penalty"); cf. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683, 94 S.Ct. 2080, 2091-2092, 40 L.Ed.2d 452 (1974) (discussing adoption of forfeiture statutes by early Congresses). And, in a long line of cases, this Court has considered the application of the Double Jeopardy Clause to civil forfeitures, consistently concluding that the Clause does not apply to such actions because they do not impose punishment.
One of the first cases to consider the relationship between the
Double Jeopardy Clause and civil forfeiture was Various Items of Personal
Property v. United States, 282 U.S. 577, 51 S.Ct. 282, 75 L.Ed. 558 (1931).
In Various Items, the Waterloo Distilling Corporation had been ordered
to forfeit a distillery, warehouse, and denaturing plant, on the ground
that the corporation had conducted its distilling business in violation
of federal law. The Government conceded that the corporation had been convicted
of criminal violations prior to the initiation of the forfeiture proceeding,
and admitted that the criminal conviction had been based upon "the transactions
set forth ... as a basis for the forfeiture." Id., at 579, 51 S.Ct.,
at 283. Considering the corporation's argument that the forfeiture action
violated the Double Jeopardy Clause, this Court unanimously held that the
Clause was inapplicable to civil forfeiture actions:
[p. 275] "[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." Id., at 581, 51 S.Ct., at 284 (citations omitted; emphasis added).
In reaching its conclusion, the Court drew a sharp distinction
between in rem civil forfeitures and in personam civil penalties such as
fines: Though the latter could, in some circumstances, be punitive,
the former could not. Ibid. Referring to a case that was decided
the same day as Various Items, the Court made its point absolutely clear:
"In United States v. La Franca, [282 U.S.] 568 [51 S.Ct. 278, 75 L.Ed. 551 (1931)], we hold that, under § 5 of the Willis-Campbell Act, a civil action to recover taxes, which in fact are penalties, is punitive in character and barred by a prior conviction of the defendant for a criminal offense involving the same transactions. This, however, is not that case, but a proceeding in rem to forfeit property used in committing an offense." Id., at 580, 51 S.Ct., at 283.
Had the Court in Various Items found that a civil forfeiture could constitute a "punishment" under the Fifth Amendment, its holding would have been quite remarkable. As that Court recognized, "[a]t common law, in many cases, the right of forfeiture did not attach until the offending person had been convicted and the record of conviction produced." Ibid. In other words, at common law, not only was it the case that a criminal conviction did not bar a civil forfeiture, but, in fact, the civil forfeiture could not be instituted unless a criminal conviction had already been obtained. Though this Court had held that common-law rule inapplicable where [p. 276] the right of forfeiture was "created by statute, in rem, cognizable on the revenue side of the exchequer," The Palmyra, supra, at 14, it never had suggested that the Constitution prohibited for statutory civil forfeiture what was required for common-law civil forfeiture. For the Various Items Court to have held that the forfeiture was prohibited by the prior criminal proceeding would have been directly contrary to the common-law rule, and would have called into question the constitutionality of forfeiture statutes thought constitutional for over a century. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 327-328, 57 S.Ct. 216, 224-225, 81 L.Ed. 255 (1936) (Evidence of a longstanding legislative practice "goes a long way in the direction of proving the presence of unassailable grounds for the constitutionality of the practice").
Following its decision in Various Items, the Court did not consider another double jeopardy case involving a civil forfeiture for 40 years. Then, in One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972) (per curiam), the Court's brief opinion reaffirmed the rule of Various Items. In Emerald Cut Stones, after having been acquitted of smuggling jewels into the United States, the owner of the jewels intervened in a proceeding to forfeit them as contraband. We rejected the owner's double jeopardy challenge to the forfeiture, holding that "[i]f for no other reason the forfeiture is not barred by the Double Jeopardy Clause of the Fifth Amendment because it involves neither two criminal trials nor two criminal punishments." 409 U.S., at 235, 93 S.Ct., at 492. Noting that the forfeiture provisions had been codified separately from parallel criminal provisions, the Court determined that the forfeiture clearly was "a civil sanction." Id., at 236, 93 S.Ct., at 492-493. The forfeitures were not criminal punishments because they did not impose a second in personam penalty for the criminal defendant's wrongdoing.
In our most recent decision considering whether a civil forfeiture constitutes punishment under the Double Jeopardy Clause, we again affirmed the rule of Various Items. In [p. 277] United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984), the owner of the defendant weapons was acquitted of charges of dealing firearms without a license. The Government then brought a forfeiture action against the firearms under 18 U.S.C. § 924(d), alleging that they were used or were intended to be used in violation of federal law.
In another unanimous decision, we held that the forfeiture was
not barred by the prior criminal proceeding. We began our analysis
by stating the rule for our decision:
"Unless the forfeiture sanction was intended as punishment, so that the proceeding is essentially criminal in character, the Double Jeopardy Clause is not applicable. The question, then, is whether a § 924(d) forfeiture proceeding is intended to be, or by its nature necessarily is, criminal and punitive, or civil and remedial." 89 Firearms, supra, at 362, 104 S.Ct., at 1105 (citations omitted).
Our inquiry proceeded in two stages. In the first stage, we looked to Congress' intent, and concluded that "Congress designed forfeiture under § 924(d) as a remedial civil sanction." 465 U.S., at 363, 104 S.Ct., at 1105. This conclusion was based upon several findings. First, noting that the forfeiture proceeding was in rem, we found it significant that "actions in rem have traditionally been viewed as civil proceedings, with jurisdiction dependent upon the seizure of a physical object." 89 Firearms, id., at 363, 104 S.Ct., at 1105, citing, Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S., at 684, 94 S.Ct., at 2092. Second, we found that the forfeiture provision, because it reached both weapons used in violation of federal law and those "intended to be used" in such a manner, reached a broader range of conduct than its criminal analogue. Third, we concluded that the civil forfeiture "further[ed] broad remedial aims," including both "discouraging unregulated commerce in firearms," and "removing from circulation firearms that have been used or intended for use outside regulated channels of commerce." 89 Firearms, supra, at 364, 104 S.Ct., at 1105-1106.
[p. 278] In the second stage of our analysis, we looked to " 'whether the statutory scheme was so punitive either in purpose or effect as to negate' Congress' intention to establish a civil remedial mechanism," 465 U.S., at 365, 104 S.Ct., at 1106, quoting United States v. Ward, 448 U.S. 242, 248- 249, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980). Considering several factors that we had used previously in order to determine whether a civil proceeding was so punitive as to require application of the full panoply of constitutional protections required in a criminal trial, see id., at 248, 100 S.Ct., at 2641, we found only one of those factors to be present in the § 924(d) forfeiture. By itself, however, the fact that the behavior proscribed by the forfeiture was already a crime proved insufficient to turn the forfeiture into a punishment subject to the Double Jeopardy Clause. Hence, we found that the petitioner had "failed to establish by the 'clearest proof' that Congress has provided a sanction so punitive as to 'transfor[m] what was clearly intended as a civil remedy into a criminal penalty.' " 89 Firearms, supra, at 366, 104 S.Ct., at 1107, quoting Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149 (1956). We concluded our decision by restating that civil forfeiture is "not an additional penalty for the commission of a criminal act, but rather is a separate civil sanction, remedial in nature." 89 Firearms, supra, at 366, 104 S.Ct., at 1107.
Our cases reviewing civil forfeitures under the Double Jeopardy Clause adhere to a remarkably consistent theme. Though the two-part analytical construct employed in 89 Firearms was more refined, perhaps, than that we had used over 50 years earlier in Various Items, the conclusion was the same in each case: in rem civil forfeiture is a remedial civil sanction, distinct from potentially punitive in personam civil penalties such as fines, and does not constitute a punishment under the Double Jeopardy Clause. See Gore v. United States, 357 U.S. 386, 392, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958) ( "In applying a provision like that of double jeopardy, which is rooted in history [p. 279] and is not an evolving concept ... a long course of adjudication in this Court carries impressive authority").
In the case that we currently review, the Court of Appeals for the Ninth Circuit recognized as much, concluding that after 89 Firearms, "the law was clear that civil forfeitures did not constitute 'punishment' for double jeopardy purposes." 33 F.3d, at 1218. Nevertheless, that court read three of our decisions to have "abandoned" 89 Firearms and the oft-affirmed rule of Various Items. According to the Court of Appeals for the Ninth Circuit, through our decisions in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), and Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), we "changed [our] collective mind," and "adopted a new test for determining whether a nominally civil sanction constitutes 'punishment' for double jeopardy purposes." 33 F.3d, at 1218-1219. The Court of Appeals for the Sixth Circuit shared the view of the Ninth Circuit, though it did not directly rely upon Kurth Ranch. We turn now to consider whether Halper, Austin, and Kurth Ranch accomplished the radical jurisprudential shift perceived by the Courts of Appeals.
In Halper, we considered "whether and under what circumstances a civil penalty may constitute 'punishment' for the purposes of double jeopardy analysis." Halper, supra, at 436, 109 S.Ct., at 1895. Based upon his submission of 65 inflated Medicare claims, each of which overcharged the Government by $9, Halper was criminally convicted of 65 counts of violating the false-claims statute, 18 U.S.C. § 287 (1982 ed.), as well as of 16 counts of mail fraud, and was sentenced to two years in prison and fined $5,000. Following that criminal conviction, the Government successfully brought a civil action against Halper under 31 U.S.C. § 3729 (1982 ed. and Supp. II). The District Court hearing the civil action determined that Halper was liable to the Government for over $130,000 under § 3729, which then provided for liability in the amount of [p. 280] $2,000 per violation, double the Government's actual damages, and court costs. The court concluded that imposing the full civil penalty would constitute a second punishment for Halper's already-punished criminal offense, however, and therefore reduced Halper's liability to double the actual damages suffered by the Government and the costs of the civil action. The Government directly appealed that decision to this Court.
This Court agreed with the District Court's analysis. We determined that our precedent had established no absolute and irrebuttable rule that a civil fine cannot be "punishment" under the Double Jeopardy Clause. Though it was well established that "a civil remedy does not rise to the level of 'punishment' merely because Congress provided for civil recovery in excess of the Government's actual damages," we found that our case law did "not foreclose the possibility that in a particular case a civil penalty ... may be so extreme and so divorced from the Government's damages and expenses as to constitute punishment." 490 U.S., at 442, 109 S.Ct., at 1898. Emphasizing the case- specific nature of our inquiry, id., at 448, 109 S.Ct., at 1901-1902, we compared the size of the fine imposed on Halper, $130,000, to the damages actually suffered by the Government as a result of Halper's actions, estimated by the District Court at $585. Noting that the fine was more than 220 times greater than the Government's damages, we agreed with the District Court that "Halper's $130,000 liability is sufficiently disproportionate that the sanction constitutes a second punishment in violation of double jeopardy." Id., at 452, 109 S.Ct., at 1904. We remanded to the District Court so that it could hear evidence regarding the Government's actual damages, and could then reduce Halper's liability to a nonpunitive level. Ibid.
In Austin, we considered whether a civil forfeiture could violate the Excessive Fines Clause of the Eighth Amendment to the Constitution, which provides that "[e]xcessive bail shall not be required, nor excessive fines imposed...." U.S. Const., Amdt. 8. Aware that Austin had sold two grams of cocaine the previous [p. 281] day, police searched his mobile home and body shop. Their search revealed small amounts of marijuana and cocaine, a handgun, drug paraphernalia, and almost $5,000 in cash. Austin was charged with one count of possessing cocaine with intent to distribute, to which he pleaded guilty. The Government then initiated a civil forfeiture proceeding against Austin's mobile home and auto shop, contending that they had been "used" or were "intended for use" in the commission of a drug offense. See 21 U.S.C. §§ 881(a)(4) and (a)(7). Austin contested the forfeiture on the ground of the Excessive Fines Clause, but the District Court and the Court of Appeals held the forfeiture constitutional.
We limited our review to the question "whether the Excessive Fines Clause of the Eighth Amendment applies to forfeitures of property under 21 U.S.C. §§ 881(a)(4) and (a)(7)." Austin, supra, at 604, 113 S.Ct., at 2803. We began our analysis by rejecting the argument that the Excessive Fines Clause was limited solely to criminal proceedings: The relevant question was not whether a particular proceeding was criminal or civil, we determined, but rather was whether forfeiture under §§ 881(a)(4) and (a)(7) constituted "punishment" for the purposes of the Eighth Amendment. Austin, supra, at 610, 113 S.Ct., at 2806. In an effort to answer that question, we briefly reviewed the history of civil forfeiture both in this country and in England, see id., at 611-618, 113 S.Ct., at 2806-2810, taking a categorical approach that contrasted sharply with Halper 's case-specific approach to determining whether a civil penalty constitutes punishment. Ultimately, we concluded that "forfeiture under [§§ 881(a)(4) and (a)(7) ] constitutes 'payment to a sovereign as punishment for some offense,' and, as such, is subject to the limitations of the Eighth Amendment's Excessive Fines Clause." Id., at 622, 113 S.Ct., at 2812.
In Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), we considered whether a state tax imposed on marijuana was invalid under the Double Jeopardy Clause when the taxpayer had already been criminally convicted of owning [p. 282] the marijuana which was taxed. We first established that the fact that Montana had labeled the civil sanction a "tax" did not end our analysis. We then turned to consider whether the tax was so punitive as to constitute a punishment subject to the Double Jeopardy Clause. Several differences between the marijuana tax imposed by Montana and the typical revenue-raising tax were readily apparent. The Montana tax was unique in that it was conditioned on the commission of a crime and was imposed only after the taxpayer had been arrested: thus, only a person charged with a criminal offense was subject to the tax. We also noted that the taxpayer did not own or possess the taxed marijuana at the time that the tax was imposed. From these differences, we determined that the tax was motivated by a " 'penal and prohibitory intent rather than the gathering of revenue.' " Id., at ----, 114 S.Ct., at 1947. Concluding that the Montana tax proceeding "was the functional equivalent of a successive criminal prosecution," we affirmed the Court of Appeals' judgment barring the tax. Id., at ----, 114 S.Ct., at 1948.
We think that the Court of Appeals for the Sixth Circuit and the Court of Appeals for the Ninth Circuit misread Halper, Austin, and Kurth Ranch. None of those decisions purported to overrule the well-established teaching of Various Items, Emerald Cut Stones, and 89 Firearms. Halper involved not a civil forfeiture, but a civil penalty. That its rule was limited to the latter context is clear from the decision itself, from the historical distinction that we have drawn between civil forfeiture and civil penalties, and from the practical difficulty of applying Halper to a civil forfeiture.
In Halper, we emphasized that our decision was limited to the
context of civil penalties:
"What we announce now is a rule for the rare case, the case such as the one before us, where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused. The rule is one of reason: Where a [p. 283] defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as 'punishment' in the plain meaning of the word, then the defendant is entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment." 490 U.S., at 449-450, 109 S.Ct., at 1902 (emphasis added).
The narrow focus of Halper followed from the distinction that we have drawn historically between civil forfeiture and civil penalties. Since at least Various Items, we have distinguished civil penalties such as fines from civil forfeiture proceedings that are in rem. While a "civil action to recover ... penalties, is punitive in character," and much like a criminal prosecution in that "it is the wrongdoer in person who is proceeded against ... and punished," in an in rem forfeiture proceeding, "it is the property which is proceeded against, and by resort to a legal fiction, held guilty and condemned." Various Items, 282 U.S., at 580-581, 51 S.Ct., at 283-284. Thus, though for Double Jeopardy purposes we have never balanced the value of property forfeited in a particular case against the harm suffered by the Government in that case, we have balanced the size of a particular civil penalty against the Government's harm. See, e.g., Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222-223, 100 L.Ed. 149 (1956) (fines not "so unreasonable or excessive" as to transform a civil remedy into a criminal penalty); United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (fine of $315,000 not so disproportionate to Government's harm of $101,500 as to transform the fine into punishment). Indeed, the rule set forth in Halper developed from the teaching of Rex Trailer and Hess. See Halper, supra, at 445-447, 109 S.Ct., at 1900-1901.
It is difficult to see how the rule of Halper could be applied to a civil forfeiture. Civil penalties are designed as a rough form of "liquidated damages" for the harms suffered by the [p. 284] Government as a result of a defendant's conduct. See Rex Trailer, supra, at 153-154, 76 S.Ct., at 222- 223. The civil penalty involved in Halper, for example, provided for a fixed monetary penalty for each false claim count on which the defendant was convicted in the criminal proceeding. Whether a "fixed-penalty provision" that seeks to compensate the Government for harm it has suffered is "so extreme" and "so divorced" from the penalty's nonpunitive purpose of compensating the Government as to be a punishment may be determined by balancing the Government's harm against the size of the penalty. Civil forfeitures, in contrast to civil penalties, are designed to do more than simply compensate the Government. Forfeitures serve a variety of purposes, but are designed primarily to confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct. Though it may be possible to quantify the value of the property forfeited, it is virtually impossible to quantify, even approximately, the nonpunitive purposes served by a particular civil forfeiture. Hence, it is practically difficult to determine whether a particular forfeiture bears no rational relationship to the nonpunitive purposes of that forfeiture. Quite simply, the case-by-case balancing test set forth in Halper, in which a court must compare the harm suffered by the Government against the size of the penalty imposed, is inapplicable to civil forfeiture.
[p. 285] We recognized as much in Kurth Ranch. In that case, the Court expressly disclaimed reliance upon Halper, finding that its case-specific approach was impossible to apply outside the context of a fixed civil-penalty provision. Reviewing the Montana marijuana tax, we held that because "tax [p. 286] statutes serve a purpose quite different from civil penalties, ... Halper 's method of determining whether the exaction was remedial or punitive simply does not work in the case of a tax statute." Kurth Ranch, supra, at ----, 114 S.Ct., at 1948 (internal quotation marks omitted); see also id., at ----, 114 S.Ct., at 1949-1950 (REHNQUIST, C. J., dissenting) (Halper inapplicable outside of " 'fixed-penalty provision [s]' " that are meant "to recover the costs incurred by the Government for bringing someone to book for some violation of law"). This is not to say that there is no occasion for analysis of the Government's harm. 89 Firearms makes clear the relevance of an evaluation of the harms alleged. The point is simply that Halper 's case-specific approach is inapplicable to civil forfeitures.
In the cases that we review, the Courts of Appeals did not find Halper difficult to apply to civil forfeiture because they concluded that its case-by-case balancing approach had been supplanted in Austin by a categorical approach that found a civil sanction to be punitive if it could not "fairly be said solely to serve a remedial purpose." See Austin, 509 U.S., at 610, 113 S.Ct., at 2806; see also Halper, supra, at 448, 109 S.Ct., at 1901-1902. But Austin, it must be remembered, did not involve the Double Jeopardy Clause at all. Austin was decided solely under the Excessive Fines Clause of the Eighth Amendment, a constitutional provision which we never have understood as parallel to, or even related to, the Double Jeopardy Clause of the Fifth Amendment. The only discussion of the Double Jeopardy Clause contained in Austin appears in a footnote that acknowledges our decisions holding that "[t]he Double Jeopardy Clause has been held not to apply in civil forfeiture proceedings ... where the forfeiture could properly be characterized as remedial." Austin, supra, at 608, n. 4, 113 S.Ct., at 2804, n. 4. And in Austin we expressly recognized and approved our decisions in One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972), and United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984). See Austin, supra, at 608, n. 4, 113 S.Ct., at 2804, n. 4.
[p. 287] We acknowledged in Austin that our categorical approach under the Excessive Fines Clause was wholly distinct from the case-by-case approach of Halper, and we explained that the difference in approach was based in a significant difference between the purposes of our analysis under each constitutional provision. See Austin, supra, at 622, n. 14, 113 S.Ct., at 2812, n. 14. It is unnecessary in a case under the Excessive Fines Clause to inquire at a preliminary stage whether the civil sanction imposed in that particular case is totally inconsistent with any remedial goal. Because the second stage of inquiry under the Excessive Fines Clause asks whether the particular sanction in question is so large as to be "excessive," see Austin, 509 U.S., at 622-623, 113 S.Ct., at 2812-2813 (declining to establish criteria for excessiveness), a preliminary-stage inquiry that focused on the disproportionality of a particular sanction would be duplicative of the excessiveness analysis that would follow. See id., at 622, n. 14, 113 S.Ct., at 2812, n. 14 ("[I]t appears to make little practical difference whether the Excessive Fines Clause applies to all forfeitures ... or only to those that cannot be characterized as purely remedial," because the Excessive Fines Clause "prohibits only the imposition of 'excessive' fines, and a fine that serves purely remedial purposes cannot be considered 'excessive' in any event"). Forfeitures effected under 21 U.S.C. §§ 881(a)(4) and (a)(7) are subject to review for excessiveness under the Eighth Amendment after Austin; this does not mean, however, that those forfeitures are so punitive as to constitute punishment for the purposes of double jeopardy. The holding of Austin was limited to the Excessive Fines Clause of the Eighth Amendment, and we decline to import the analysis of Austin into our double jeopardy jurisprudence.
In sum, nothing in Halper, Kurth Ranch, or Austin, purported to replace our traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause. Congress long has authorized the Government to bring parallel criminal proceedings and civil [p. 288] forfeiture proceedings, and this Court consistently has found civil forfeitures not to constitute punishment under the Double Jeopardy Clause. It would have been quite remarkable for this Court both to have held unconstitutional a well-established practice, and to have overruled a long line of precedent, without having even suggested that it was doing so. Halper dealt with in personam civil penalties under the Double Jeopardy Clause; Kurth Ranch with a tax proceeding under the Double Jeopardy Clause; and Austin with civil forfeitures under the Excessive Fines Clause. None of those cases dealt with the subject of this case: in rem civil forfeitures for purposes of the Double Jeopardy Clause.
We turn now to consider the forfeitures in these cases under the teaching of Various Items, Emerald Cut Stones, and 89 Firearms. Because it provides a useful analytical tool, we conduct our inquiry within the framework of the two-part test used in 89 Firearms. First, we ask whether Congress intended proceedings under 21 U.S.C. § 881, and 18 U.S.C. § 981, to be criminal or civil. Second, we turn to consider whether the proceedings are so punitive in fact as to "persuade us that the forfeiture proceeding[s] may not legitimately be viewed as civil in nature," despite Congress' intent. 89 Firearms, 465 U.S., at 366, 104 S.Ct., at 1107.
There is little doubt that Congress intended these forfeitures to be civil proceedings. As was the case in 89 Firearms, "Congress' intent in this regard is most clearly demonstrated by the procedural mechanisms it established for enforcing forfeitures under the statute[s]." 465 U.S., at 363, 104 S.Ct., at 1105. Both 21 U.S.C. § 881 and 18 U.S.C. § 981, which is entitled "Civil forfeiture," provide that the laws "relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws ... shall apply to seizures and forfeitures incurred" under § 881 and § 981. See 21 U.S.C. § 881(d); 18 U.S.C. § 981(d). Because forfeiture [p. 289] proceedings under the customs laws are in rem, see 19 U.S.C. § 1602 et seq., it is clear that Congress intended that a forfeiture under § 881 or § 981, like the forfeiture reviewed in 89 Firearms, would be a proceeding in rem. Congress specifically structured these forfeitures to be impersonal by targeting the property itself. "In contrast to the in personam nature of criminal actions, actions in rem have traditionally been viewed as civil proceedings, with jurisdiction dependent upon seizure of a physical object." 89 Firearms, 465 U.S., at 363, 104 S.Ct., at 1105, citing Calero-Toledo, 416 U.S., at 684, 94 S.Ct., at 2092.
Other procedural mechanisms governing forfeitures under § 981 and § 881 also indicate that Congress intended such proceedings to be civil. Forfeitures under either statute are governed by 19 U.S.C. § 1607, which provides that actual notice of the impending forfeiture is unnecessary when the Government cannot identify any party with an interest in the seized article, and by § 1609, which provides that seized property is subject to forfeiture through a summary administrative procedure if no party files a claim to the property. And 19 U.S.C. § 1615, which governs the burden of proof in forfeiture proceedings under § 881 and § 981, provides that once the Government has shown probable cause that the property is subject to forfeiture, then "the burden of proof shall lie upon [the] claimant." In sum, "[b]y creating such distinctly civil procedures for forfeitures under [§ 881 and § 981], Congress has 'indicate[d] clearly that it intended a civil, not a criminal sanction.' " 89 Firearms, supra, at 363, 104 S.Ct., at 1105, quoting Helvering v. Mitchell, 303 U.S., at 402, 58 S.Ct., at 634. [n. 3]
Most significant is that § 981(a)(1)(A), and §§ 881(a)(6) and (a)(7), while perhaps having certain punitive aspects, serve important nonpunitive goals. Title 21 U.S.C. § 881(a)(7), under which Ursery's property was forfeited, provides for the forfeiture of "all real property ... which is used or intended to be used, in any manner or part, to commit, or to facilitate the commission of" a federal drug felony. Requiring the forfeiture of property used to commit federal narcotics violations encourages property owners to take care in managing their property and ensures that they will not permit that property to be used for illegal purposes. See Bennis v. Michigan, 516 U.S. 442, ----, 116 S.Ct. 994, 1000, 134 L.Ed.2d 68 (1996) ( "Forfeiture of property prevents illegal uses ... by imposing an economic penalty, thereby rendering illegal behavior unprofitable"); 89 Firearms, supra, at 364 (forfeiture "discourages unregulated commerce in firearms"); Calero-Toledo, supra, at 687-688, 94 S.Ct., at 2094. In many circumstances, the forfeiture may abate a nuisance. See, e.g., United States v. 141st Street Corp., 911 F.2d 870 (C.A.2 1990) (forfeiting apartment building used to sell crack cocaine); see also Bennis, supra, at ----, 116 S.Ct., at 1000 (affirming application of Michigan statute abating car as a nuisance; forfeiture "prevent[s] further illicit use of" property); cf. 89 Firearms, supra, [p. 291] at 364, 104 S.Ct., at 1106 (forfeiture "remov[ed] from circulation firearms that have been used or intended for use" illegally); Emerald Cut Stones, 409 U.S., at 237, 93 S.Ct., at 493 (forfeiture "prevented forbidden merchandise from circulating in the United States").
The forfeiture of the property claimed by Arlt and Wren took place pursuant to 18 U.S.C. § 981(a)(1)(A), and 21 U.S.C. § 881(a)(6). Section 981(a)(1)(A) provides for the forfeiture of "any property" involved in illegal money-laundering transactions. Section 881(a)(6) provides for the forfeiture of "[a]ll ... things of value furnished or intended to be furnished by any person in exchange for" illegal drugs; "all proceeds traceable to such an exchange"; and "all moneys, negotiable instruments, and securities used or intended to be used to facilitate" a federal drug felony. The same remedial purposes served by § 881(a)(7) are served by § 881(a)(6) and § 981(a)(1)(A). Only one point merits separate discussion. To the extent that § 881(a)(6) applies to "proceeds" of illegal drug activity, it serves the additional nonpunitive goal of ensuring that persons do not profit from their illegal acts.
Other considerations that we have found relevant to the question whether a proceeding is criminal also tend to support a conclusion that § 981(a)(1)(A) and §§ 881(a)(6) and (a)(7) are civil proceedings. See Ward, supra, at 247-248, n. 7, 249, 100 S.Ct., at 2640-2641, n. 7, 2641- 2642 (listing relevant factors and noting that they are neither exhaustive nor dispositive). First, in light of our decisions in Various Items, Emerald Cut Stones, and 89 Firearms, and the long tradition of federal statutes providing for a forfeiture proceeding following a criminal prosecution, it is absolutely clear that in rem civil forfeiture has not historically been regarded as punishment, as we have understood that term under the Double Jeopardy Clause. Second, there is no requirement in the statutes that we currently review that the Government demonstrate scienter in order to establish that the property is subject to forfeiture; indeed, the property may be subject to forfeiture even if no party files a [p. 292] claim to it and the Government never shows any connection between the property and a particular person. See 19 U.S.C. § 1609. Though both § 881(a) and § 981(a) contain an "innocent owner" exception, we do not think that such a provision, without more indication of an intent to punish, is relevant to the question whether a statute is punitive under the Double Jeopardy Clause. Third, though both statutes may fairly be said to serve the purpose of deterrence, we long have held that this purpose may serve civil as well as criminal goals. See, e.g., 89 Firearms, supra, at 364, 104 S.Ct., at 1105-1106; Calero-Toledo, supra, at 677-678, 94 S.Ct., at 2088-2089. We recently reaffirmed this conclusion in Bennis v. Michigan, supra, at ----, 116 S.Ct., at 1000, where we held that "forfeiture ... serves a deterrent purpose distinct from any punitive purpose." Finally, though both statutes are tied to criminal activity, as was the case in 89 Firearms, this fact is insufficient to render the statutes punitive. See 89 Firearms, 465 U.S., at 365-366, 104 S.Ct., at 1106-1107. It is well settled that "Congress may impose both a criminal and a civil sanction in respect to the same act or omission," Helvering, 303 U.S., at 399, 58 S.Ct., at 633. By itself, the fact that a forfeiture statute has some connection to a criminal violation is far from the "clearest proof" necessary to show that a proceeding is criminal.
We hold that these in rem civil forfeitures are neither "punishment" nor criminal for purposes of the Double Jeopardy Clause. The judgments of the Court of Appeals for the Sixth Circuit, in No. 95-345, and of the Court of Appeals for the Ninth Circuit, in No. 95-346, are accordingly reversed.
It is so ordered.
Justice KENNEDY, concurring.
Justice SCALIA, with whom Justice THOMAS joins, concurring in the judgment.
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 [p. 298] 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 [p. 299] 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. [n. 1] 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.
. . . . .
"(7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, 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." § 881(a)(7).
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 reaffirmed the fundamental [p. 301] 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, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); United States v. James Daniel Good Real Property, 510 U.S. 43, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993). This Term the Court has begun dismantling the protections it so recently erected. In Bennis v. Michigan, 516 U.S. 442, 116 S.Ct. 994, 134 L.Ed.2d 68 (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, 51 S.Ct. 282, 75 L.Ed. 558 (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, 51 S.Ct., at 284. 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 2140-41. 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 2142, 2141. 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 [p. 302] 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, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972) (per curiam), and United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (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, 93 S.Ct., at 493. 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, 104 S.Ct., at 1105-1106. 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, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), "expressly recognized
and approved" those decisions. Ante, at 2146. 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 [p. 303] where the forfeiture could properly be characterized as remedial. See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364 [104 S.Ct. 1099, 1105-1106, 79 L.Ed.2d 361] (1984); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237 [93 S.Ct. 489, 493, 34 L.Ed.2d 438] (1972); see generally United States v. Halper, 490 U.S. 435, 446-449 [109 S.Ct. 1892, 1900-1902, 104 L.Ed.2d 487] (1989) (Double Jeopardy Clause prohibits second sanction that may not be fairly characterized as remedial)." 509 U.S., at 608, n. 4, 113 S.Ct., at 2804, 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, 104 S.Ct., at 1107.
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, 6 S.Ct. 524, 29 L.Ed. 746 (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, 6 S.Ct., at 534.
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, 85 S.Ct. 1246, 14 L.Ed.2d 170 (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 [p. 304] to forfeit an automobile used to transport illegally manufactured liquor. Id., at 700, 85 S.Ct., at 1250.
Even more significant is United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (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, 91 S.Ct., at 1042 (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, 91 S.Ct., at 1043. 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, 93 S.Ct., at 492, n. 6. See also United States v. Ward, 448 U.S. 242, 254, 100 S.Ct. 2636, 2644, 65 L.Ed.2d 742 (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 [p. 305] in pari materia. [n. 3] 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.
It is the majority, however, that has "misread" Halper, Austin,
and Kurth Ranch by artificially cabining each to a separate sphere, see
ante, at 2147, 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 [p.
306] 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, 109 S.Ct., at 1902.
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, 109 S.Ct., at 1896. 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, 109 S.Ct., at 1900. Despite finding that the fine was not by nature punitive, the [p. 307] Court went on to consider whether the sanction "as applied in the individual case," id., at 448, 109 S.Ct., at 1902, 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, 109 S.Ct., at 1903-1904. 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, 113 S.Ct., at 2805-2806, 2811-2812, 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, 113 S.Ct., at 2812, n. 14. Accordingly, we held that any forfeiture was subject to the constraints of the Excessive Fines Clause of the Eighth Amendment.
[p. 308] 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 2145. 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, 113 S.Ct., at 2805-2806, 2811-2812. 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, 113 S.Ct., at 2812, 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 2146, 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 ----, 114 S.Ct., at 1944-1945, we considered the nature of the tax, focusing on several unusual features that distinguished it from ordinary revenue-raising provisions, and concluded [p. 309] that it was motivated by a "penal and prohibitory intent." Id., at ----, 114 S.Ct., at 1947. [n. 6] 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 ----, 114 S.Ct., at 1947.
[p. 310] 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. [n. 8] 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, 113 S.Ct., at 2814 (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, 113 S.Ct., at 2811. Finally, the legislative history indicated that the provisions were necessary because traditional criminal sanctions were " 'inadequate to deter or punish.' " Ibid. (quoting S.Rep. No. 98-225, p. 191 (1983), U.S.Code Cong. & Admin.News 1984, pp. 3182, 3374). 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, 113 S.Ct., at 2814 (SCALIA, J., concurring in part and concurring in judgment) (emphasis in original).
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 2149. That statement cannot be squared with our precedents. Halper expressly [p. 312] 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, 109 S.Ct., at 1902. " 'Retribution and deterrence are not legitimate nonpunitive governmental objectives.' " Ibid. (emphasis added) (quoting Bell v. Wolfish, 441 U.S. 520, 539, n. 20, 99 S.Ct. 1861, 1874, n. 20, 60 L.Ed.2d 447 (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 2148-49, 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 ----, 116 S.Ct., at 1008-1009 (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 2149 (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, 113 S.Ct., at 2811. In United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), the Court [p. 313] 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 2149. 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, 113 S.Ct., at 2811.
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 2144. 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, 91 S.Ct., at 1043. See also One 1958 Plymouth Sedan, 380 U.S., at 701, n. 11, 85 S.Ct., at 1251, n. 11; Boyd, 116 U.S., at 638, 6 S.Ct., at 536-537. [n. 12] Most recently, [p. 314] 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, 113 S.Ct., at 2808, n. 9.
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Accordingly, I respectfully dissent from the judgment in No. 95-345.