Supreme Court narrows double jeopardy protection It removes limit on criminal, civil charges for the same deed


WASHINGTON -- The Supreme Court swept away yesterday a major constitutional obstacle to the government's power to treat an illegal act as both a crime and a civil violation and to punish the wrongdoer twice.

By a vote of 5-4 in an Oklahoma case, the court cast aside one of its earlier rulings, a 1989 decision that defense lawyers have used to challenge federal and state laws that use a one-two punch to achieve multiple punishment for the same act.

The theory was that this amounted to "double jeopardy," which is barred by the Sixth Amendment. In the new ruling, the court majority said that civil-then-criminal, or criminal-then-civil, punishments rarely constitute double jeopardy, and prosecutors are free to employ both.

Chief Justice William H. Rehnquist, writing for the majority, said the court had become concerned "about the wide variety of novel double jeopardy claims spawned in the wake of" the 1989 decision.

Rehnquist implied that the court wanted to halt the use of that ruling by defense lawyers to challenge "Megan's laws" that publicly identify convicted sex criminals, drug convictions of military personnel followed by their discharge for the same conduct, bans on government contracts followed by criminal prosecution, prosecution for escape from prison after discipline by the warden, and evictions from public housing after drug convictions.

In the 1989 ruling that the court abandoned yesterday, the justices had ruled unanimously that it would be double jeopardy to impose both criminal punishment and civil fines that were far ++ out of line with the seriousness of the harm done.

In that case, Irwin Halper of New York had been ordered to pay $16,000 in civil penalties to the federal government. Halper had already been criminally convicted for filing false Medicaid claims that brought him $585. The civil fine was so large, the court ruled then, that it went far beyond compensation for the harm he did, and imposed an additional criminal penalty.

Yesterday, the court "disavowed" that decision. The justices said the earlier ruling had been "ill-considered" and created a formula that "has proved unworkable" in determining whether a specific punishment was harsh enough to be considered a criminal sanction.

The double jeopardy clause, the court said, bars only "multiple criminal punishments for the same offense." Fines, penalties or other punishments that are described in laws as civil, it added, do not constitute criminal penalties unless there is "the clearest proof" that they are. That should be clear, the court said, by simply looking at what the law says.

The new ruling demolished the core of the 1989 decision. Though the court did not say explicitly that it was overruling all aspects of that decision, it was not clear what remained for defense lawyers to use in challenging multiple-punishment laws.

Gary E. Bair, an assistant Maryland attorney general, said the new decision was a strong sign that "unless something really is a criminal proceeding, it won't implicate double jeopardy."

The underlying constitutional issue, Bair said, had figured in Maryland cases ranging from drug forfeiture after criminal prosecution to the withdrawal of a driver's license after a conviction for a traffic offense.

In the case before the court yesterday, the justices found no double jeopardy violation in federal prosecutors' plans to pursue criminal charges against three Oklahoma bankers who had previously been given civil fines for making phony loans to customers that enabled the three bankers to benefit personally.

The financial penalties, the court said, were clearly civil in nature and not the kind of sanction that has been considered punishment equal to a a criminal penalty.

Maryland was one of 48 states that had urged the court to re-examine the 1989 ruling.

Joining in Rehnquist's opinion were Justices Anthony M. Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.

Four other justices -- Ruth Bader Ginsburg, Stephen G. Breyer, David H. Souter and John Paul Stevens -- agreed that the three bankers should lose their appeal but did not support the abandonment of the earlier ruling.

Stevens said the court majority had exaggerated the success lawyers had had in using the 1989 decision to strike down multiple punishment laws.

In a separate decision yesterday, the court ruled unanimously that the complete immunity prosecutors usually have to civil rights lawsuits does not protect them if they lie in laying out facts to support a search warrant.

Pub Date: 12/11/97

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