United States v. Ursery
Concurrence And Dissent: Standing Austin On Its Head
Justice Kennedy issued a concurring opinion in which he reviewed the history of past cases and showed why the Court's holding in the present action was consistent with its judgment not only in Austin, but also in Libretti v. United States (1995). "Forfeiture," he wrote, " . . . 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." Justice Scalia, joined by Justice Thomas, concurred in the judgment, holding that "the Double Jeopardy Clause prohibits successive prosecution, not successive punishment." In other words, one could receive more than a single punishment for a crime, but should not be tried twice for the same offense.
Justice Stevens concurred in part of the judgment-with regard to Arlt and Wren--and dissented in part of the judgment involving Ursery. "Because the numerous federal statutes authorizing forfeitures cover such a wide variety of situations," he wrote, "it is quite wrong to assume that there is only one answer to [the] question" of whether the actions against Ursery and the two others constituted double jeopardy. Justice Stevens then went on to establish crucial differences between Ursery's case and that of the two other men. The $405,089.23 seized from Arlt and Wren had come directly from criminal activity; whereas "none of the property seized in No. 95-345 [Ursery] constituted proceeds of an illegal activity."
Looking closely at the facts, Justice Stevens noted a number of problems with the case against Ursery. "Respondent Ursery," who "cultivated marijuana in a heavily wooded area not far from his home in Shiawassee County, Michigan," did so purely for the purpose of supplying his family with marijuana: "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, the Michigan State Police executed a warrant to search the premises." The fact that they seized the grow light and other items used in the actual criminal activity, Justice Stevens suggested, was lawful. But the government overstepped the bounds when it attempted to seize Ursery's house, because "There is no evidence that the house had been purchased with the proceeds of unlawful activity[,] and the house itself was surely not contraband." Justice Stevens then proceeded to address the government's four arguments supporting the seizure of the home, first establishing in his view that the forfeiture was punitive in nature.
After reviewing Austin, a decision which he held that the Court "today stands . . . on its head," Justice Stevens wrote, "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." He further questioned the majority's view 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." He further took issue with the government's view "that the word `jeopardy' refers only to a criminal proceeding." Justice Stevens concluded by referring to Various Items and other Prohibition-Era decisions cited by the Court in the present ruling. "Consider how drastic the remedy would have been," he observed, "if Congress in 1931 had authorized the forfeiture of every home in which alcoholic beverages were consumed."
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