WASHINGTON — The Supreme Court announced Friday that it will reconsider the long-standing legal tradition that allows the government first to prosecute a person for a crime and later to seize his assets in a civil proceeding.
A decision on the issue, expected by June, could change the basic rules on forfeitures and make it harder, but not impossible, for prosecutors to seize all of a defendant's money and property.
Friday's action is the latest from the court as it has looked at the government's forfeiture power in the last few years. As part of the "war on drugs" in the 1980s, Congress gave federal prosecutors sweeping authority to seize assets from drug dealers. Many states followed with similar laws of their own. These forfeiture laws built upon historic legal peculiarities involving civil proceedings.
But critics charge that these powers have been abused on occasion. In swift legal proceedings, some small-time criminals have lost a house, a car and all their assets even though they dealt in tiny amounts of drugs. In other instances, innocent bystanders, such as a friend or relative of a drug dealer, lost their property too.
In a case heard this fall, the high court heard arguments on whether an entirely innocent owner could lose her car because her husband had used it to commit a crime. A ruling in that case is expected within a few months.
Now the justices have turned their attention to the basic questions raised by the use of civil suits by the government.
Prosecutors can take advantage of two odd features of civil suits that in the past have warded off double-jeopardy claims. First, an item of property can be sued in a civil proceeding, rather than its owner. For example, one case granted review by the high court Friday is officially known as "United States vs. $405,089.23." That is so because the government supposedly brought the action against the cash itself, not against its owner.
And second, money lost through a civil suit is not deemed to be punishment, but rather is considered more like a debt repaid.
By law, prosecutors could bring a criminal forfeiture action against a drug defendant as part of their main case. But to win in criminal court is harder. It requires proof beyond a reasonable doubt.
By contrast, a civil suit seeking a forfeiture can be filed quickly and easily, especially after the owner has been convicted of a crime.
But last year, in a path-breaking decision, the U.S. 9th Circuit Court of Appeals, based in San Francisco, declared this common practice unconstitutional because it violates the 5th Amendment's double-jeopardy clause. It makes no sense to say that civil forfeiture is not punishment, the appeals court said.
The case had arisen in 1992 after two Los Angeles men, James Wren and Charles Arlt, were convicted of manufacturing methamphetamines and laundering money to hide their illegal business. In a separate civil proceeding, prosecutors then won an order to seize more than $400,000 in cash, along with an aircraft, a boat and other property.
The appeals court said this second proceeding amounted to a second punishment for the same crime, a violation of the double-jeopardy clause.
Meanwhile, an appeals court in the Midwest applied the same principle, but in the opposite direction. A Michigan man, Jerome Usery, agreed in response to a civil suit to forfeit $13,250 that he had made from growing marijuana at home. But later, when prosecutors brought a criminal charge against him for the same offense, the U.S. 6th Circuit Court of Appeals threw out the charge on double-jeopardy grounds.
Acting for the government, U.S. Solicitor General Drew S. Days III appealed both rulings, saying they threatened to upset the entire asset-forfeiture program.
In a brief order, the justices said they would hear both cases (U.S. vs. $405,089.23, 95-346 and U.S. vs. Usery, 95-345) in April.
The justices also agreed to hear a third related case involving fugitives who are subject to forfeiture orders.
Brian Degen was charged in Nevada in 1989 with marijuana trafficking, but he fled to Switzerland rather than face the charges. Later, prosecutors brought a civil suit seeking to seize $5 million worth of his property in Nevada, California and Hawaii.
His lawyers maintained that it was unfair to bring a civil proceeding against someone who was not in court to respond. A federal judge disagreed, but the Supreme Court said it would hear his appeal (Degen vs. U.S., 95-173).
Friday's announcements in the three forfeiture cases completes a week in which the high court, virtually alone in official Washington, conducted business as usual despite crippling snowstorms.
Chief Justice William H. Rehnquist is a stickler for operating on time and on schedule. By long tradition, the court also prides itself as a separate institution of government that sets its own rules.
This week, while the federal government shut down four of five days because of heavy snow, Rehnquist ordered the court to remain open. Employees were told to be on the job or take a vacation day.
Eight of the nine justices were on the bench for arguments early in the week. Justice John Paul Stevens, who spends his free time at a winter home in Fort Lauderdale, Fla., .was unable to return because of the snow.