320
Opinion of Stevens, J.
procedural obstacle to including a punitive forfeiture in the final judgment entered in a criminal case. The sentencing proceeding does not commence until after the defendant has been found guilty, and I do not see why that proceeding should not encompass all of the punitive sanctions that are warranted by the conviction. Indeed, a draft of a proposed amendment to the Federal Rules of Criminal Procedure envisions precisely that procedure. See Fed. Rule Crim. Proc. 32(d)(2) (eff. Dec. 1, 1996).18 If, as we have already determined, the "civil" forfeitures pursuant to § 881(a)(7) are in fact punitive, a single judgment encompassing the entire punishment for the defendant's offense is precisely what the Double Jeopardy Clause requires. Congress' decision to create novel and additional penalties should not be permitted to eviscerate the protection against governmental overreaching embodied in the Double Jeopardy Clause. That protection has far deeper roots than the relatively recent enactments that have so dramatically expanded the sovereign's power to forfeit private property.
* * *
One final example may illustrate the depth of my concern that the Court's treatment of our cases has cut deeply into a guarantee deemed fundamental by the Founders. The Court relies heavily on a few early decisions that involved the forfeiture of vessels whose entire mission was unlawful and on the Prohibition-era precedent sustaining the forfeiture of a distillery—a property that served no purpose other than the manufacture of illegal spirits. Notably none of those early cases involved the forfeiture of a home as a form
18 According to the Rule, once there is a finding that property is subject to a criminal forfeiture, the court may enter a preliminary forfeiture order. The order also authorizes the Attorney General to seize the property, conduct any necessary discovery, and begin proceedings to protect the rights of third parties. The order of forfeiture becomes a part of the sentence and is included in the judgment.
Page: Index Previous 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 NextLast modified: October 4, 2007