A Stitch in Haste

"This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence."

So declares Justice Ginsburg in Cunningham v. California, No. 05-6551 (January 22, 2007) (links). The statement is so succinct as to sound rudimentary and even remedial to the point of insulting.

I haven't followed too closely the jurisprudence of sentencing laws or the soap opera over the United States Sentencing Commission and the Federal Sentencing Guidelines (one stray exception here). The Cunningham opinion itself includes a useful review of the saga from Apprendi to Blakely to Booker and now to Cunningham.

My sole hasty stitch from Cunningham is somewhat different. If "any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence," then how, exactly, are civil forfeiture laws constitutional?

To review: The government can and does seize property from people who are never convicted of any crime, on the theory that the government can "sue" the fruits of criminal activity rather than "prosecute" the perpetrator himself. This why these proceedings have such preposterous titles as "U.S. v. $124,700 in Currency."

As you may know, in a civil lawsuit the burden of proof is typically the lower "preponderance of the evidence" standard rather than the higher "beyond a reasonable doubt" standard of criminal trials. Also, far fewer civil defendants are entitled to jury trials than in the criminal court system.

Still, it just doesn't sit well with most people, and certainly not with libertarians: A person can lose his car, or his home, or $124,700 in cash, without being convicted of any crime.

The jurisprudential legerdemain used to sidestep this pesky contradiction is to posit that forfeiture is not "punishment" in the criminal sense. "Punishment" means imprisonment or a fine. Forfeiture is neither, just as restitution is neither or confinement of the insane is neither or deportation is neither. And if forfeiture is not a "criminal" punishment, then Cunningham -- indeed the Sixth Amendment itself -- just does not apply.

That simply cannot be right.

The Fifth Amendment, which goes hand-in-hand with the Sixth, says: "No person shall be ... deprived of life, liberty, or property, without due process of law." Shouldn't Cunningham's simple, elegant Sixth Amendment dictate in fact extend to encompass all three prongs of the Fifth Amendment's protection? Is imprisonment (i.e., denial of liberty) really so different from forfeiture (i.e., denial of property)?

If you believe in the spirit of Cunningham, then you must, by definition, believe that forfeiture -- which is a punishment regardless of how it's pigeonholed within the legal system -- requires a finding, by a jury, of criminal culpability beyond a reasonable doubt.