318
Opinion of Stevens, J.
(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 understanding of the relationship between a civil forfeiture and the underlying offense. See, e. g., One 1958 Plymouth Sedan, 380 U. S., at 701 ("[T]he 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. 292 (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 295. 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. Ante, at 294. 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
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