Sims v. State

Emmett SIMS, Jr. v. STATE of Arkansas

95-1228                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 21, 1996


1.   Forfeitures -- civil forfeitures do not impose "punishment"
     for double-jeopardy purposes -- two-part test to determine
     whether forfeiture is "punishment" for double jeopardy
     purposes. -- In United States v. Ursery, 116 S. Ct. 2135
     (1996) the Court held that civil forfeitures did not impose
     "punishment" for double-jeopardy purposes and that an in rem
     civil forfeiture is not an additional penalty for the
     commission of a criminal act, but rather is a separate civil
     action that is remedial in nature; a two-part test must be
     used to determine whether a forfeiture is "punishment" for
     double-jeopardy purposes; that test first asks whether the
     General Assembly intended the particular statute at issue to
     be a remedial civil sanction or a criminal penalty, and
     second, whether the forfeiture proceedings are so punitive in
     fact as to establish that they may not legitimately be viewed
     as civil in nature, despite any legislative intent to
     establish a civil remedial mechanism.

2.   Forfeitures -- subchapter containing forfeiture provision
     generally remedial -- some criminal sanctions also present. --
     Arkansas Code Annotated  5-64-505 (Repl. 1993) is part of a
     subchapter on the enforcement and administration of the
     Uniform Controlled Substances Act; in general, the subchapter
     is remedial and provides for the forfeiture of all money and
     property used or intended to be used to facilitate a violation
     of the Controlled Substances Act; proceedings are governed by
     the rules of civil procedure, and the burden of proof lies
     upon the claimant; the subsection used in this instance
     provides for educational programs designed to prevent and
     deter misuse and abuse of controlled substances; however,
     because some sections had markings of a criminal sanction
     including provisions for in personam forfeiture based upon a
     person's conduct, the court could not say that the General
     Assembly clearly indicated that all parts of the statute
     provided civil, and not criminal, sanctions. 

3.   Forfeiture -- statute clearly applied as a civil sanction --
     suit was filed against the money. -- Arkansas Code Annotated
      5-64-505 was clearly applied as a civil sanction where the
     suit was filed under the in rem provisions of the statute; it
     was filed against the money; the statute provided that notice
     to an individual was not necessary in all instances; the
     burden of proof was governed by the rules of civil procedure,
     and the burden was upon the claimant; the statute, as applied,
     had none of the makings of punishment.

4.   Forfeiture -- little evidence found to suggest that forfeiture
     proceedings were criminal in nature -- forfeiture imposes an
     economic penalty. -- There was little evidence suggesting that
     the forfeiture proceedings were so punitive in form and effect
     as to render them criminal; forfeiture proceedings against
     property used to commit drug violations encourages owners to
     take care of property and ensures that it is not used in the
     drug trade; forfeiture of property prevents illegal uses by
     imposing an economic penalty, thereby rendering illegal
     behavior unprofitable; and finally, to the extent that the
     statute applies to the proceeds of illegal drug activity, it
     serves the additional nonpunitive goal of ensuring that
     persons do not profit from their illegal acts. 

5.   Forfeiture -- in rem civil forfeiture neither punishment nor
     criminal -- Double Jeopardy Clause not violated. -- The
     supreme court affirmed the trial court and held that the in
     rem civil forfeiture was neither "punishment" nor criminal for
     purposes of the Double Jeopardy Clause.


     Appeal from Pulaski Circuit Court; John B. Plegge, Judge;
affirmed.
     McLean Law Firm, by:  William A. McLean, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen., Sr. Appellate Advocate for appellee.

     Robert H. Dudley, Justice.
     The issue in this case is whether the State is attempting to 
twice punish Emmett Sims, Jr., for the same offense in violation of
the Double Jeopardy Clause of the United States Constitution.  The
trial court held that Sims was not twice punished for the same
conduct.  We affirm the judgment.
     On April 16, 1994, after a car chase, a state trooper forced
Sims's car off the road in order to arrest him.  The trooper
searched Sims and found he was in possession of a .38 caliber
pistol and $8,603.96.  During the chase, the trooper had seen Sims
pitch a crumpled piece of paper out of his car window.  After the
arrest was completed, the trooper went back to the area where he
had seen Sims throw out the crumpled paper and found one syringe
containing cocaine, two additional syringes, and 3.143 grams of
crack cocaine inside the crumpled paper.  The State filed an
information that charged Sims with possession of controlled
substances with intent to deliver.  
     On July 29, 1994, the State filed this civil case, a
forfeiture action in rem against the $8,603.96, under authority of
Ark. Code Ann.  5-64-505 (Repl. 1993).  Sims's attorney requested
notice of a forfeiture action.  Sims, by his attorney, filed an
answer denying that Sims was in possession of controlled substances
and claiming the money.  On December 13, 1994, Sims, in the
criminal case, pleaded guilty to the crime of possession of
controlled substances with the intent to deliver and was sentenced.
     On April 27, 1995, Sims filed a motion to dismiss this in rem
civil action on the ground that it would be a violation of the
Double Jeopardy Clause to forfeit his money after he had been
sentenced for the same criminal offense.  The trial court denied
the motion and ordered the money forfeited.  Sims appeals.
     Sims's sole argument is that the forfeiture of the $8,603.69
amounted to double jeopardy because he had been previously punished
for the same conduct upon which the forfeiture was had.  Both Sims
and the State rely on cases from United States Courts of Appeals. 
At the times their briefs were filed, there was a split of
authority among the United States Courts of Appeals as to whether
civil forfeitures were violative of the "multiple punishment" prong
of the Double Jeopardy Clause.  See Nancy J. King, Portioning
Punishment: Constitutional Limits on Successive and Excessive
Penalties, 144 U. Pa. L. Rev. 101, 117-25 (1995).  However, after
the briefs were filed, the Supreme Court settled the conflicting
viewpoints in the consolidated case of United States v. Ursery, 116 S. Ct. 2135 (1996).  In Ursery the Court held that civil
forfeitures did not impose "punishment" for double jeopardy
purposes and that an in rem civil forfeiture is not an additional
penalty for the commission of a criminal act, but rather is a
separate civil action that is remedial in nature.  The heart of the
holding is that a two-part test must be used to determine whether
a forfeiture is "punishment" for double jeopardy purposes.  That
test first asks whether the General Assembly intended the
particular statute at issue to be a remedial civil sanction or a
criminal penalty, and second, whether the forfeiture proceedings
are so punitive in fact as to establish that they may not
legitimately be viewed as civil in nature, despite any legislative
intent to establish a civil remedial mechanism.  
     We now turn to the first part of the test, which is whether
the General Assembly intended Ark. Code Ann.  5-64-505 to be a
remedial civil sanction or a criminal penalty.  This statute is
part of a subchapter on the enforcement and administration of the
Uniform Controlled Substances Act.  In general, the subchapter is
remedial.  It provides for the forfeiture of all money and property
used or intended to be used to facilitate a violation of the
Controlled Substances Act.  The statute refers to the Arkansas
Rules of Civil Procedure.  The proceedings are governed by the
rules of civil procedure, and the burden of proof lies upon the
claimant.  Limon v. State, 285 Ark. 166, 685 S.W.2d 515 (1985).  It
provides for actions in rem, and actions in rem have traditionally
been viewed as civil proceedings.  Scienter is not required before
forfeiture can be ordered.  The subsection used in this instance
provides for educational programs designed to prevent and deter
misuse and abuse of controlled substances.  Ark. Code Ann.  5-64-
508.  However, some sections have markings of a criminal sanction. 
Arkansas Code Annotated section 5-64-505(m) provides for in
personam forfeiture based upon a person's conduct.  In sum, we
cannot say that the General Assembly has clearly indicated that all
parts of the statute provide civil, and not criminal, sanctions. 
     As a result of our finding, we must examine the manner in
which the statute was applied in this case.  We have no hesitancy
in holding that the statute was applied as a civil sanction.  This
suit was filed under the in rem provisions of the statute; it was
filed against the money.  The statute provides that notice to an
individual is not necessary in all instances.  The burden of proof
was governed by the rules of civil procedure, and the burden was
upon the claimant.  The statute, as applied, had none of the
makings of punishment.  
     We turn now to the second stage of analysis, and there is
little evidence, much less the "`clearest proof'" required by
United States v. Ursery, suggesting that these forfeiture
proceedings were so punitive in form and effect as to render them
criminal.  Forfeiture proceedings against property used to commit
drug violations encourages owners to take care of property and
ensures that it is not used in the drug trade.  Forfeiture of
property prevents illegal uses by imposing an economic penalty,
thereby rendering illegal behavior unprofitable.  Finally, to the
extent that the statute applies to the proceeds of illegal drug
activity, it serves the additional nonpunitive goal of ensuring
that persons do not profit from their illegal acts.  See United
States v. Ursery, 116 S. Ct.  at 2149.
     We affirm the trial court and hold that the in rem civil
forfeiture was neither "punishment" nor criminal for purposes of
the Double Jeopardy Clause.
     Affirmed.