Lead
OPINION
{1} This case concerns five consolidated appeals in which each of the defendants faced criminal charges for the possession or sale of drugs, and were also subject to the civil forfeiture of property, such as vehicles and currency, that was allegedly associated with the crime. These appeals each raise the same issue: whether civil forfeiture under the Controlled Substances Act, NMSA 1978, §§ 30-31-1 to -41 (1972, as amended through 1997), is punishment and is limited by the protections against double jeopardy guaranteed by the New Mexico Constitution, N.M. Const, art. II, § 15, and the double-jeopardy statute, NMSA 1978, § 30-1-10 (1963). We
I. FACTS
{2} The double-jeopardy issue we address today was properly preserved at the trial level by all the defendants in these consolidated cases. Some of the defendants raised issues other than the one resolved by this opinion. Because we decide all the cases on double-jeopardy grounds, we will not address any other issues.
A. State v. Nunez
{3} Jesus Diaz Nunez was arrested on April 7, 1995, and, on May 9, 1995, was charged with possession of marijuana with intent to sell. On April 10, 1995, a complaint for forfeiture was filed against Nunez’s 1981 Ford Crown Victoria, in which he was allegedly transporting the marijuana. Nunez was indigent and was unable to obtain legal representation to contest the forfeiture. He did not appear at the forfeiture hearing and a default judgment was entered in May 1995. See State ex rel. Department of Pub. Safety v. One 1981 Ford Crown Victoria, No. SF-95-789(e) (N.M.Dist.Ct. May 25, 1995) (Default Judgment).
{4} Nunez, through a public defender, on August 18, 1995, filed a motion to dismiss the criminal charges based upon the violation of the Double Jeopardy Clauses of the United States and New Mexico Constitutions. The court determined that the forfeiture was penal in nature and that “[sjince the State elected to obtain forfeiture before seeking criminal punishment, the State cannot now seek a second punishment in a criminal proceeding; and, therefore, defendant’s motion should be granted.” See State v. Nunez, No. CR-95-128-S (N.M.Dist.Ct. Aug. 28, 1995) (Order to Dismiss). The State appeals, and we affirm.
B. State v. Chavez
{5} David Michael Chavez was arrested on June 20, 1994, for possession of drug paraphernalia and possession of marijuana with intent to distribute. The police seized $3268 in currency from his home. On July 7, 1994, Chavez was again arrested for possession of marijuana with intent to distribute. The Albuquerque Police Department (APD) police seized a 1986 Chevrolet van, which was allegedly used to transport the marijuana, $50. in currency found in the vehicle, and $300 in currency found in Chavez’s home.
{6} On July 19, 1994, the APD filed a petition of forfeiture against the $3268 seized in June and, on August 8, 1994, filed a petition of forfeiture against the vehicle and $350 seized in July. Chavez filed answers to the petitions in which he asserted that he was the owner of the vehicle and currency seized by the police. Half a year after the forfeiture petitions were filed, criminal charges for the two arrests were filed against Chavez on February 9,1995.
{7} In March 1995, Chavez and the APD arrived at two compromise settlements regarding the seized property. Regarding the vehicle and currency seized in July 1994, a judgment was entered in which the APD kept the $350 and the van was returned to Chavez. See State ex rel. Albuquerque Police Dep’t v. One 1986 Chevrolet Blue and White Van, No. MS 94-162 (N.M.Dist.Ct. Mar. 6, 1995) (Judgment of Forfeiture). As to the $3268 seized in June 1994, a judgment was entered in which the APD kept $2179 and $1089 was returned to Chavez. See State ex rel. Albuquerque Police Dep’t v. Three Thousand Two Hundred Sixty Eight Dollars, No. MS 94-147 (N.M.Dist.Ct. Mar. 9, 1995) (Judgment of Forfeiture).
{8} A few days after the forfeiture settlements, on March 13, 1995, Chavez filed a motion to dismiss the criminal charges. He argued that the State had punished him once by forfeiting his property and was therefore barred by principles of double jeopardy from punishing him a second time in the criminal proceedings. The trial court granted the motion to dismiss. See State v. Chavez, No. CR-95-312 (N.M.Dist.Ct. May 5, 1995) (Order re: Motion to Dismiss for Double Jeopardy). The State appeals, and we affirm.
C.State v. Gallegos
{9} Alex Gallegos was arrested for possession of cocaine on September 1, 1994.
{10} Criminal charges were filed against Gallegos on April 27, 1995. He moved, on October 16, 1995, to dismiss the criminal charges on double-jeopardy grounds. This motion was denied. See State v. Gallegos, No. CR-95-1108 (N.M.Dist.Ct. Feb. 14, 1996) (Order). Gallegos pleaded guilty to possession of cocaine on February 28, 1996, and a judgment was filed in May 1996. See State v. Gallegos, No. CR-95-1108 (N.M.Dist.Ct. May 17, 1996) (Judgment, Sentence and Order Suspending Sentence). He now appeals his criminal conviction on double-jeopardy grounds, and we reverse.
D. State v. Edward Vasquez and State v. Marguerite Vasquez
{11} Edward and Marguerite Vasquez, husband and wife, were arrested on August 25, 1995, at a border patrol checkpoint. In October of 1995, they were charged with possession of cocaine with intent to distribute, conspiracy to distribute cocaine, possession of marijuana with intent to distribute, and conspiracy to distribute marijuana. The police seized a 1983 Ford Fairmont that was allegedly used to transport the drugs, $40 that was in Edward’s possession, and $39 that was in Marguerite’s possession. A petition of forfeiture against the vehicle and currency was filed on September 8,1995. When the Vasquezes failed to appear to contest the forfeiture, a default judgment was entered on November 14, 1995. See In re Forfeiture of a White 1988 Ford Fairmont, No. CV-95-315 (N.M.Dist.Ct. Nov. 14, 1995) (Default Judgment of Forfeiture).
{12} In response to the narcotics charges on March 7, 1996, Edward filed a pre-trial motion to dismiss in which Marguerite claims to have joined, arguing that, because they had already been penalized by the forfeiture, double jeopardy prevented further prosecution. The trial court denied the motion, apparently at a hearing on March 12, 1996. Edward and Marguerite, in a single trial, were convicted on all counts by a jury on March 15, 1996. See State v. Vasquez, No. CR-95-383 (N.M.Dist.Ct. Mar. 21, 1996) (Judgment and Sentence). They now appeal their criminal convictions on double-jeopardy grounds, and we reverse.
II. NEW MEXICO AND THE FEDERAL CONSTITUTION
{13} It is settled law in New Mexico that “[w]e are not bound to give the same meaning to the New Mexico Constitution as the United States Supreme Court places upon the United States Constitution, even in construing provisions having wording that is identical, or substantially so, ‘unless such interpretations purport to restrict the liberties guaranteed the entire citizenry under the federal charter.’ ” State ex rel. Serna v. Hodges,
Under the interstitial approach, the court asks first whether the right being asserted is protected under the federal constitution. If it is, then the state constitutional claim is not reached. If it is not, then the state constitution is examined. A state court adopting this approach may diverge from federal precedent for three reasons: a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics.
{15} Thus, the first step in the Gomez analysis is a determination of whether the United States Constitution protects the right in question. As a matter of principle, we prefer to interpret our State Constitution in conformity with federal doctrine. “[W]e recognize the value of uniformity in the advancement and application of the rights guaranteed by both our state and federal constitutions Breit,
{16} In our opinion today, we reject federal doctrine regarding the double-jeopardy implications of civil forfeiture as it is applied under the Controlled Substances Act. In 1996, the United States Supreme Court, in a singular reversal of its recent double-jeopardy jurisprudence, issued United States v. Ursery,
{17} Under the second part of the Gomez analysis, we justify our departure from federal constitutional doctrine because of the distinctive characteristics of New Mexico’s double-jeopardy and forfeiture jurisprudence.
{18} We emphasize that our opinion today is founded entirely and exclusively on the New Mexico State Constitution. We cite to federal jurisprudence, not on its own authority, but solely on the basis of the strength of its argument. Much of this opinion is devoted
III. RELEVANT FORFEITURE LAWS
{19} The Controlled Substances Act defines controlled substances, empowers the Board of Pharmacy to administer and regulate their manufacture, distribution, and dispensation, and establishes penalties for the illegal trafficking of controlled substances. Pertinent to this ease are the Act’s provisions for civil forfeiture, NMSA 1978, §§ 30-31-34 to -37 (1972, as amended through 1989).
{20} The types of property that may be forfeited are listed in NMSA 1978, § 30-31-34 (1989):
The following are subject to forfeiture:
A. all controlled substances and all controlled substance analogs which have been manufactured, distributed, dispensed or acquired in violation of the Controlled Substances Act;
B. all raw materials, products and equipment of any kind including firearms which are used or intended for use in manufacturing, compounding, processing, delivering, importing or exporting any controlled substance or controlled substance analog in violation of the Controlled Substances Act;
C. all property which is used or intended for use as a container for property described in Subsection A or B of this section;
D. all conveyances, including aircraft, vehicles or vessels, which are used or intended for use to transport or in any manner to facilitate the transportation for the purpose of sale of property described in Subsection A or B of this section;
E. all books, records and research products and materials, including formulas, microfilm, tapes and data, which are used or intended for use in violation of the Controlled Substances Act;
F.narcotics paraphernalia or money which is a fruit or instrumentality of the crime;
H. all drug paraphernalia as defined [in subsection (V) of the “Definitions” section of the Act, NMSA 1978, § 30-31-2 (1997) ].
(Emphasis added.) The forfeitures of the various automobiles and trucks in these consolidated cases were carried out under the auspices of Subsection D of this statute. The cash forfeitures were authorized by Subsection F. Several of the remaining provisions of this statute regulated the forfeiture of the controlled substances, cpntraband, and instrumentalities that gave rise to the various criminal prosecutions in these cases.
{21} The Act specifies that the judicial forfeiture proceeding is civil rather than criminal:
In the event of seizure pursuant to [a court order or under specific circumstances that do not require a court order], proceedings under ... the Rules of Civil Procedure for the District Courts of New Mexico shall be instituted promptly and not later than thirty days after seizure.
NMSA 1978, § 30-31-35(0 (1981).
{22} The New Mexico forfeiture statute includes innocent-owner provisions that protect property from forfeiture when the violation of the Controlled Substances Act was committed without the owner’s “knowledge or consent.” Section 30-31-34(0(1), (2), (4). We shall address below the double-jeopardy significance of these provisions. We will also address the statutory provision that places the burden of proof in a forfeiture action, not on the State to prove that the property was used in a crime, but on the defendant to prove that it was not. See NMSA 1978, § 30-31-37 (1972). The forfeiture laws also provide for the disposition of forfeited property, and we shall mention the implications behind the fact that law enforcement agencies may benefit from the proceeds of forfeitures. See § 30-31-35(E).
{23} The holding by the United States Supreme Court in Ursery that double jeopardy is not implicated by civil forfeitures under
IV. DOUBLE JEOPARDY
A. The Double Jeopardy Clause
{24} The New Mexico Double Jeopardy Clause differs from its federal counterpart. The Fifth Amendment to the United States Constitution states simply, “No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb ----” U.S. Const, amend. V. New Mexico specifies double-jeopardy protections that are only implicit in the federal version:
No person shall ... be twice put in jeopardy for the same offense; and when the indictment, information or affidavit upon which any person is convicted charges different offenses or different degrees of the same offense and a new trial is granted the accused, he [or she] may not again be tried for an offense or degree of the offense greater than the one of which he [or she] was convicted.
N.M. Const, art. II, § 15.
{25} This constitutional protection is reiterated and expanded by our double-jeopardy statute:
No person shall be twice put in jeopardy for the same crime. The defense of double jeopardy may not be waived and may be raised by the accused at any stage of a criminal prosecution, either before or after judgment. When the indictment, information or complaint charges different crimes or different degrees of the same crime and a new trial is granted the accused, he [or she] may not again be tried for a crime or degree of the crime greater than the one of which he [or she] was originally convicted.
Section 30-1-10 (emphasis added). The non-waiver provision is especially significant because federal ease law expressly denies a similar interpretation of the Fifth Amendment.
{26} In times past we regarded our State Constitution’s Double Jeopardy Clause as being “subject to the same construction and interpretation as its counterpart in the Fifth Amendment to the United States Constitution.” State v. Day,
{27} When compared to recent United States Supreme Court Fifth-Amendment jurisprudence, New Mexico’s constitutional and statutory protection against double jeopardy, on its face, is of a different nature, more encompassing and inviolate.
B. The Moments When Jeopardy Attaches
{28} Civil and criminal proceedings each have different moments of attachment. In a criminal trial, jeopardy attaches at the moment the trier of fact is empowered to make any determination regarding the
{29} In civil forfeiture proceedings, many authorities have suggested that jeopardy attaches at the time the court enters its final judgment.
{30} The protection against multiple prosecutions of the same offense is not dependent upon whether jeopardy first attached in the criminal or the civil proceeding. Whatever the sequence, the New Mexico Double Jeopardy Clause forbids the prosecution of the same infraction in two separate proceedings. See Department of Revenue v. Kurth Ranch,
{31} In cases like those we address today, if the civil forfeiture is pursued first, resulting in either a trial or a default judgment, the double-jeopardy defense would arise upon the subsequent initiation of a criminal proceeding. Conversely, if the defendant is first subjected to a criminal prosecution, the double-jeopardy defense would be triggered at the moment the state commenced a subsequent forfeiture action.
V. FORFEITURE DEFINED
{32} In the New Mexico Constitution, the ownership of property is as meaningful and fundamental as the rights to life, safety, and happiness:
All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness.
N.M. Const, art. II, § 4.
{33} Forfeiture is the complete divestiture of the ownership of property without compensation. See Black’s Law Dictionary 661 (7th ed.1999). Thus, it extinguishes one of the most fundamental liberty interests. Mary M. Cheh, Can Something This Easy, Quick, and Profitable Also Be Fair? Runaway Civil Forfeiture Stumbles on the Constitution, 39 N.Y.L. Sch. L.Rev. 1, 10 (1994) [hereinafter Cheh, Easy ]. It is a statutorily created sanction for the commission of certain illegal acts or for the breach of certain obligations or conditions. See Black’s Law Dictionary 661.
{34} Forfeiture, as a means of combating the trafficking of controlled substances, is based on the principle that people who commit crimes must not profit from their wrongdoing.
Modem forfeiture is justified as a means of taking the profit out of crime and as a device to destroy criminal “enterprises,” that is, any business, association, cartel, or concerted action that tends to continue operating even if involved individuals are jailed. These are laudable objectives that appeal to good common sense and elementary principles of morality. It is the essence of justice to deprive a criminal of hisbooty and to destroy what are, in effect, nests of criminal activity.
Cheh, Easy, supra, at 5-6 (footnote omitted). Thus, ideally, forfeitures under the Controlled Substances Act discourage illegal economies and divest criminals of the profits of the drug trade.
{35} Civil forfeiture is often analyzed as the confiscation of three different types of property: First is contraband, which is anything that, by law, “cannot be possessed at all or possessed only under strict conditions,” such as contaminated or misbranded products, controlled substances, unlawfully possessed firearms, counterfeit money, stolen property, and vehicles with false identification numbers.
VI. THE NEW MEXICO MULTIPLE PROSECUTIONS TEST
A. The Three-Part Test From Schwartz and the Two-Part Test from Ursery
{36} Among the distinctive state characteristics in New Mexico’s double-jeopardy jurisprudence is the three-pronged “[m]ultiple punishment analysis” described in State ex rel. Schwartz v. Kennedy:
Multiple punishment analysis ... entails three factors: (1) whether the State subjected the defendant to separate proceedings; (2) whether the conduct precipitating the separate proceedings consisted of one offense or two offenses; and (3) whether the penalties in each of the proceedings may be considered “punishment” for the purposes of the Double Jeopardy Clause.
{37} In contrast, the Ursery majority justified its conclusion by applying a two-pronged test. Ursery,
First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.
89 Firearms,
{38} The most obvious distinction between these two tests is that Schwartz includes two factors left unexpressed by Ursery that, to us, seem indispensable in evaluating a multiple prosecution double-jeopardy claim: whether there were “separate proceedings” and whether the proceedings were directed at only “one offense.” By discounting these considerations, the Ursery Court avoids addressing whether the cases in question are multiple punishment
{39} However, of greater significance is the almost complete reliance by the two-part Ursery/89 Firearms test on the legislative determination to label a particular sanction “civil” or “criminal.” The fust question the Court asks is “whether Congress intended proceedings under 21 U.S.C. § 881, and 18 U.S.C. § 981, to be criminal or civil.” Ursery,
{40} In the second stage of the analysis, the Court evoked the declaration of 89 Firearms, that, “‘“[ojnly the clearest proof” that the purpose and effect of the forfeiture are punitive will suffice to override Congress’ manifest preference for a civil sanction.” 89 Firearms,
{41} Commentators — including those courts that have followed Ursery — almost universally interpret Ursery to justify the abrogation of any double-jeopardy protection in civil forfeiture actions.
{42} We have discovered only two eases — only one of which deals with forfeiture — that held, under the Ursery “clearest proof’ standard, that a sanction was punitive for double jeopardy purposes. In State v. Klein,
{43} The non-forfeiture case, People v. Wood,
{44} Even if there are other eases like these, they are all solitary exceptions to the otherwise universal impact of the two-part Ursery test: the abrogation of any double-jeopardy protection when a civil forfeiture and a criminal prosecution are brought for the same offense. As we demonstrate below, we would have to discard a significant body of established New Mexico law if we were to construe so narrowly our own Double Jeopardy Clause.
B. New Mexico’s Doctrine Regarding Deference to Legislative Intent
{45} The immediate virtue of the Schwartz test over the Ursery/89 Firearms two-part test is that there is no deference to legislative intent regarding the determination of fundamental constitutional rights. The congressional decision to describe forfeiture as a civil proceeding is one of the main arguments the Ursery Court depends upon to support its conclusion that forfeitures are not punishment. See Ursery,
{46} The Controlled Substances Act explicitly declares that forfeiture shall be instituted under “the Rules of Civil Procedure for the District Courts of New Mexico.” Section 30-31-35(C). However, in New Mexico, the fact that the Legislature has chosen to label a proceeding “civil” or “criminal” is not dis-positive of the true nature of that proceeding. We settled this matter in State ex rel. Schwartz v. Kennedy. In that case we concluded that if the penalty in a civil proceeding “may be fairly characterized only as a deterrent or as retribution, then the revocation is punishment; if the penalty may be fairly characterized as remedial, then it is not punishment for the purposes of double jeopardy analysis.” Schwartz,
{47} The Ursery Court’s willingness to cede to Congress so much of its control over fundamental constitutional protections is contrary to New Mexico law. See Susan R. Klein, Redrawing the Criminal-Civil Boundary, 2 Buff.Crim. L.Rev. 679, 683 (1999) (The United States Supreme Court “now routinely blesses whatever label a legislature places on a sanction.”). Our Court of Appeals has expressed disapproval for such an approach, stating that, in New Mexico, “[t]he State cannot restrict an individual’s constitutional rights by statute.” Whitener,
{48} It is the role of the judiciary, and not the legislature, to interpret the constitution. The mere fact that the legislature has chosen to affix to a statute the appellations “civil” or “criminal” does not sanctify the deprivation of constitutional rights that are guaranteed to all criminal defendants. Most emphatically, legislative intent should not be considered determinative of multiple prosecution cases. Legislative intent, no matter how well meaning, cannot bestow constitutional legitimacy upon the imposition of multiple punishments in multiple proceedings for a single offense. Legislators, in choosing whether to describe a sanction as “civil” or “criminal,” will naturally seek to minimize the likelihood of judicial scrutiny. Cf. Andrew J. Gottman, Note, Fair Notice, Even for Terrorists: Timothy McVeigh and a New Standard for the ex Post Facto Clause, 56 Wash. & Lee L.Rev. 591, 645 (1999) (“No rational Congress would ever place a criminal label on a retrospective bill”). The New Mexico Double Jeopardy Clause may not be circumvented simply because the Legislature has labeled one of two sanctions as “civil.”
{49} To be sure, in a single proceeding, the New Mexico Double Jeopardy Clause does not prevent the Legislature from authorizing multiple punishments for the same offense.
C. Schwartz Distinguished
{50} The issues we addressed in Schwartz differ from the issues we address today. Schwartz concerned an administrative sanction rather than a nominally civil forfeiture. Specifically, Schwartz addressed “whether double jeopardy prohibits the State from subjecting an accused drunk driver to both an administrative driver’s license revocation proceeding and a criminal prosecution.” Schwartz,
{51} In making this determination we followed the United States Supreme Court’s holding in Halper,
{52} In contrast, the statutes applicable to the cases we address today do not concern a regulated lawful activity, but rather an illegal criminal activity. Trafficking in controlled substances is not a government-granted privilege that is taken away by the sanction of forfeiture. As we explain in detail below, forfeitures under Section 30-31-34 were not designed — and indeed could never be designed — to serve the remedial objective of compensating the government or society for the incalculable costs of the illegal drug trade. Forfeiture inflicts a pecuniary penalty as punishment for the crime and seeks to deter any recurrence of the crime. Applying the logic of Schwartz, even though forfeiture has some remedial aspects, the design and motives behind the forfeiture statutes are unquestionably punitive. The forfeitures in the cases at hand are distinct from the administrative sanction discussed in Schwartz because their purposes and intentions are primarily punitive.
{53} The Schivartz test set forth New Mexico’s distinctive method for evaluating possible violations of the protections against multiple prosecutions and multiple punishments. Even though the Schwartz test was directed at administrative license revocation rather than civil forfeiture, we find it to be entirely adaptable to the cases we address today. A measure of the dispassionate nature of the three-part Schwartz test is that it is conducive, on the one hand, of the holding in Schwartz that administrative revocations are not punitive, and on the other hand, of our holding today that forfeitures under the Controlled Substances Act are punitive. The two-part Ursery/89 Firearms test would be an unnecessary departure from New Mexico law.
{54} The rights asserted by the defendants in the cases before us today are not protected by the federal test. Following Gomez, we therefore will examine whether there is protection under the New Mexico test. See Gomez,
VII. SEPARATE PROCEEDINGS
{55} Applying the first prong of the Schwartz test, there is no dispute that, under current New Mexico law, the criminal prosecution and the forfeiture action are separate proceedings. We certainly reject any attempt to contrive an identity between the two proceedings such as that set forth in United States v. Millan,
VIII. ONE OFFENSE
{56} The second factor in the Schwartz test — whether the conduct at issue consists of one or more than one offense — is more complex. Because two different bodies of law are applied — drug trafficking laws and forfeiture laws — we must determine whether each statute punishes different conduct or both apply to the same conduct. Most courts, if they address this question, answer it by invoking the well-worn Blockburger test which states that when “the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact the other does not.” Blockburger v. United States,
{57} We conclude that an examination of the Controlled Substances Act reveals that there is no fact needed to prove the drug trafficking violation that is not also needed to prove the grounds for forfeiture. All the forfeitures of property under Section 30-31-34 are expressly predicated on the fact that the defendant was “in violation of the Controlled Substances Act.” The forfeiture statute entirely subsumes the criminal offense.
{58} This interpretation is further supported by the innocent owner provisions that limit the application of the forfeiture statute exclusively to those who are in “violation of the Controlled Substances Act.” See § 30-31-34(G)(1), (2), (4). By making an exception for innocent owners the Legislature could only have intended the criminal offense to be an element necessary to justify the civil forfeiture action.
{59} Therefore, in the ease of forfeitures under the Controlled Substances Act, we hereby establish a presumption that when a forfeiture action and a criminal action are directed at the same defendant and rely on the same general evidence, then both proceedings concern the same offense. The State will bear the burden of proving otherwise. Specifically, the State will have to prove with clear and convincing evidence that the criminal action and forfeiture action are unquestionably directed at completely distinct and unrelated offenses.
{60} We establish this presumption in favor of defendants because they should be protected from an unfair partitioning of their offenses. When there is more than one count of trafficking in controlled substances, the State is forbidden from instituting a criminal action on some counts and a forfeiture action on the others. In New Mexico, this partitioning would run afoul of the Double Jeopardy Clause. See State v. Boeglin,
IX. PUNISHMENT
{61} The third Schwartz factor, whether both proceedings impose punishment, is the most contentious. Though this factor and the second part of the Ursery/89 Firearms test address the same basic question, Schwartz does not defer to legislative intent nor does it require the insurmountable “clearest proof’ standard.
A. The Punitive/Remedial Evaluation under Schwartz
{62} As mentioned above, in Schwartz we stated that the punitive or remedial nature of a sanction is established by looking at the purposes behind the statute that authorizes the sanction. Schwartz,
{63} As noted above, Schwartz makes it clear that a nonpunitive sanction need not be “ ‘solely’ ” remedial. Schwartz,
{64} Thus, Schwartz indicates that determining whether a sanction is remedial or punitive for double-jeopardy purposes requires a balancing of all the purposes behind the sanction. See id. at 633-34,
{65} Thus, as we explain below, while New Mexico’s forfeiture statutes under the Controlled Substances Act have certain remedial goals, they primarily serve decidedly punitive objectives. Moreover, there are certain aspects—or earmarks—of these forfeiture laws that are demonstrative of their punitive nature. As one commentator concluded, “New Mexico’s drug forfeiture statute, codified in its Criminal Offenses law, is intended as a penalty for convicted drug felons. It is penal and punitive in nature, not remedial, as most civil statutes purport to be.” 1 Steven L. Kessler, Civil & Criminal Forfeiture: Fed. & State Practice § 9.04[5] (1999) (footnote omitted).
B. Remedial Aspects of Forfeitures under the Controlled Substances Act
{66} In this section we will outline a number of remedial qualities that are usually ascribed to forfeitures associated with controlled-substances prosecutions. Even though some of these remedial qualities apply to the New Mexico Controlled Substances Act, they do not outweigh its punitive nature.
1. Reimbursement
{67} The most frequently mentioned objective is that forfeiture reimburses the government for the cost of its efforts to minimize the availability of illegal drugs including investigating, prosecuting, and incarcerating drug traffickers. Moreover, civil forfeiture allegedly helps compensate for the societal costs of the drug trade such as caring for victims, lost productivity, and social programs that combat the temptation of illegal drugs. See Arthur W. Leach & John G. Malcolm, Criminal Forfeiture: An Appropriate Solution to the Civil Forfeiture Debate, 10 Ga. St. U.L.Rev. 241, 260 n. 81 (1994) (“Forfeiture is remedial ... because it compensates the government for its expenditures on law enforcement activities and on other societal problems resulting from the offending instrumentalities.”). There is no claim that forfeiture reimburses the government dollar for dollar, even if a specific dollar amount could be determined. Rather, forfeiture is defended as a “rough justice” remedy or a “a reasonable form of liquidated damages” designed to indemnify the costs related to the trafficking of controlled substances.12 As explained below, the New Mexico Controlled Substances Act was created without this purpose in mind.
2. Removes harm
{68} Forfeiture is also ascribed the remedial objective of removing harm from society and from the stream of commerce. Thus, social betterment and not individual punishment is the goal when the state eliminates harmful substances, confiscates dangerous instrumentalities, abates nuisances, and impounds illegal goods.13 There is little doubt that the removal of harm is an aspect of forfeitures under the Controlled Substances Act. But this aspect, by itself, does
3. Confiscation of harmful property
{69} Similarly, the confiscation of contraband, and proceeds, and instrumentalities of the illegal drug trade is justified as a way of protecting society from harm. Possession of contraband, such as a controlled substance, is unlawful for all citizens and its forfeiture is not punishment. See J. Moms Clark, Civil and Criminal Penalties and Forfeitures: A Framework for Constitutional Analysis, 60 Minn. L.Rev. 379, 478 (1976). Proceeds are the profits of illegal activities and property purchased with those illegal profits and their forfeiture deprives the owner of nothing to which he or she is entitled. Cheh, Easy, supra, at 15. It is claimed as well that the forfeiture of instrumentalitiesproperty that is used to facilitate a crime-serves remedial objectives. The harmful nature of such property and the remedial character of such forfeitures is disputed. See Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug War’s Hidden Economic Agenda, 65 U. Chi. L.Rev. 35, 45-46 (1998). Forfeiture of harmful property can be beneficial. However, this factor, even when considered with the other remedial qualities we mention, does not outweigh the punitive nature of forfeiture under the Controlled Substances Act.
4. Restitution
{70} Forfeiture proceeds can be used to provide restitution for victims of the illegal drug trade. See Nancy J. King, Portioning Punishment: Constitutional Limits on Successive & Excessive Penalties, 144 U. Pa. L.Rev. 101, 174 n. 215, 175 n. 216, 176 n. 220 (1995). However, New Mexico’s Controlled Substances Act makes no provision for the direct compensation of victims. At best, victims may benefit obliquely when forfeited property or the proceeds of their sale revert to the general fund or are used by law enforcement agencies. See § 30-31-35(E) (permitting law enforcement agencies to use forfeited property or sell it and apply proceeds to state, county, municipal general funds).
5.Encouraging the proper management of property
{71} Often mentioned is the argument that forfeiture encourages property owners to actively manage their property to ensure that it will not be used for illegal purposes. See Ursery,
C. Punitive Aspects of Forfeitures under the Controlled Substances Act
{72} In this section we shall explain the factors that demonstrate how forfeitures under the Controlled Substances Act were designed to be punitive.
1. New Mexico precedent regards forfeitures as punitive
{73} Were we to follow Ursery’s holding that civil forfeitures are not punitive, we would be forced to repudiate over a quarter century of consistent and unequivocal statements by the New Mexico appellate courts that civil forfeiture is indeed quasi criminal, penal, and punitive in nature.15 Moreover, the presumption that forfeiture is punitive can be traced to the earliest opinions of the Territorial Supreme Court, prior to our statehood.16 This presumption continued after New Mexico was admitted into the Union.17 In more recent years, the forfeiture of water rights has similarly been regarded as punishment.18
{74} The Ursery majority did not mention its holding in Boyd v. United States,
{75} For these reasons, it is well established in New Mexico that, “[fjorfeitures are not favored at law and statutes are to be construed strictly against forfeiture.” State v. Ozarek,
{76} We would have to renounce a significant body of precedent were we to conclude that forfeitures were remedial rather than punitive. Though many of our early forfeiture cases are far removed from the sanctions contemplated by the Controlled Substances Act, New Mexico has never, in any context, in addressing any issue, ever effectuated a forfeiture without characterizing it as penal or quasi-criminal or punitive.
2. In rem
{77} The Ursery majority rests a preponderance of its rationale upon the in rem nature of the forfeiture proceeding, which it characterizes in terms of the guilty property fiction. In this segment we will explain why in rem jurisdiction and the guilty property fiction are not synonymous. Additionally, we shall show why the in rem doctrine does not imply, as Ursery suggests, that forfeiture is a remedial sanction. Rather, a proper understanding of in rem doctrine supports the conclusion that forfeiture is punitive for double-jeopardy purposes under the Controlled Substances Act.
a. In rem jurisdiction is directed at persons’ interests
{78} Most commonly, “in rem” is defined as a proceeding or action instituted against a thing in contradistinction to “in personam” actions which are directed against a person. Black’s Law Dictionary 797. However, in modern jurisprudence, this definition is neither conceptually nor practically accurate. It is true that the names of the proceedings are styled as if the inanimate object were a defendant in a civil or criminal action. See, e.g., State v. One 1967 Peterbilt Tractor (In re Seizure & Intended Forfeiture of One 1967 Peterbilt Tractor),
{79} The in rem doctrine has its origins in the need for the court to have jurisdiction over property when its owner is absent, when there is no owner, or when the extent of ownership is unknown.24 In such circumstances, in rem jurisdiction allows the court to dispose of the property, with absolute finality, as to everyone anywhere who has any interest in it whatsoever, whether they are present, absent, or unknown, and even if there is no owner. Flesch v. Circle City Excavating & Rental Corp.,
b. The guilty property fiction
{80} Our Court has previously criticized the in rem doctrine as being “rooted in the hoary annals of admiralty law” when courts often could not obtain in personam jurisdiction over those who committed maritime offenses, but could obtain in rem jurisdiction over the wrongdoers’ ocean vessels. $2730.00,
{81} The guilty property fietion-as opposed to the less theoretical and more practicable understanding of in rem jurisdiction which recognizes its effect on persons-is indispensable to all the Ursery Court’s arguments that forfeitures are not punishment.25
[This] forfeiture proceeding ... is in rem. It is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient. In a criminal prosecution it is the wrongdoer in person who is proceeded against, convicted, and punished. The forfeiture is no part of the punishment for the criminal offense. The provision of the Fifth Amendment to the Constitution in respect of double jeopardy does not apply.
Ursery,
{82} However, in New Mexico, we have expressly dismissed the guilty property fiction as “anachronistic” and not reflective of the true nature of an in rem civil forfeiture proceeding under the Controlled Substances Act. See $2730.00,
c. In rem jurisdiction is punitive
{83} “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” Oliver Wendell Holmes, The Path of Law, 10 Harv. L.Rev. 457, 469 (1897). The fact that the guilty property fiction is old does not mean it is either venerable or applicable to modern law. See Leading Case, Double Jeopardy Clause-In Rem Civil Forfeiture, 110 Harv.L.Rev. 206, 214 (1996) (“In Ursery, the Court failed to recognize that modem civil forfeiture is far different in application, motivation, and result from the civil forfeiture statutes used in ‘the earliest years of this Nation.’ ” (quoting Ursery,
To say that an owner is not liable, but that his vessel is liable, seems to us like talking in riddles. A man’s liability for a demand against him is measured by the amount of property that may be taken from him to satisfy that demand. In the matter of liability, a man and his property cannot be separated----
Place v. Norwich & N.Y. Transp. Co.,
{84} The problems that gave rise to the guilty property fiction still exist: courts must still deal with property that has no owner and defendants who do not reside within the jurisdiction or who are unidentified. The purpose of in rem jurisdiction, even in its most archaic form, was to extend the jurisdiction of the courts. It still serves the same purpose. However, it must not be forgotten that the in rem action is directed, not at the property itself, but at any interest that may exist in that property, and that when, as the consequence of a crime, the court divests a defendant, without compensation, of any interest in property-that defendant has been punished. In rem was never intended, and should never be interpreted, to abrogate fundamental constitutional rights.
3. Deterrence
{85} “Deterrence” is defined as “[t]he act or process of discouraging certain behavior, particularly by fear.” Moreover, as an objective of criminal law, deterrence connotes “the prevention of criminal behavior by fear of punishment.” Black’s Law Dictionary 460. Deterrence is a way of using the punishment of a defendant as an example to others who might be tempted to commit the same crime. It is an announcement to the world of the consequences for those who are caught committing the prohibited act. See Mary M. Cheh, Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction, 42 Hastings L.J. 1325, 1355 n. 166 (1991) [hereinafter Cheh, Constitutional ]. “In order for a deterrent to be effective, the potential costs to that individual, discounted by the probability that the individual will incur such costs, must be sufficiently high to dissuade her [or him] from taking that action. Thus, the strength of the deterrent depends on the size of the penalty.” Leading Case, supra, at 212. Sanctions that deter are different from those that remedy. A deterrent “must amount to more than recompense or restitution. The theory is that humans, as rational weighers of the risks and benefits of their actions, will risk being penalized if the worst they face is having to pay market value for their illicit gains.” Cheh, Constitutional, supra, at 1355 (1991) (footnote omitted).
{86} It is universally acknowledged that our forfeiture statutes are meant to deter those who contemplate trafficking in controlled substances. As the definition indicates, deterrence is accomplished by instilling fear in potential drug dealers. The cost of the forfeiture is designed to exceed, if possible, any profitability from the crime. See Leading Case, supra, at 212. Defendants are deprived of all the profits and
4. No correlation to harm
{87} It is apparent that, on their face, the forfeiture provisions of the Controlled Substances Act were never intended to serve as a source of restitution for the state’s costs of investigating and prosecuting the crime, the harm to any innocent victims from illegal drug trade, or the unmeasurable cost to society from the trafficking of controlled substances. See Cheh, Easy, supra, at 18 (“[Cjivil asset forfeitures never were intended to serve as a form of restitution nor are they designed to serve that goal.”). A statute that attempted to, for example, recompense the government for its investigation and prosecution costs, would devise a fine that reasonably approximated the dollar amount of the government’s efforts, based upon past average expenditures. In contrast, under the Controlled Substances Act, the value of the property forfeited is never mentioned and has absolutely no bearing on the reasons for its confiscation.27 The statute makes no demand that the State correlate its prosecutorial expenses to the value of the seized property. See Cheh, Easy, supra, at 10 (“Whether the nature or the value of any property seized bears any equivalence to harms caused by use of the property or to the culpability of the property owner is pure happenstance.”). The Legislature did not intend to overwhelm the courts with contentious accountings of the costs associated with the illegal drug trade.
{88} Moreover, under the Act, the law enforcement agency seizing the property may “take custody of the property for use by law enforcement agencies in the enforcement of the Controlled Substances Act or remove it for disposition in accordance with law.” Section 30-31-35(E)(2). This aspect of contemporary forfeiture law has been much criticized and raises serious constitutional concerns.28 The law enforcement agency may keep the forfeited property or the proceeds therefrom. Section 30-31-35(E). But the value of the property is applied toward the nebulous enterprise of enforcing the Act. Section 30-31-35(E)(2). Nothing in this statute requires the value of the property to be applied in a remedial fashion to reimbursing the agency’s costs in prosecuting the specific crime from which the property was derived.
{89} If it is clear that the sanction greatly exceeds the quantum of harm, then it is punitive. Conversely, forfeiture is no more remedial if the state’s expenditures or the cost of the harm exceed the value of the forfeited property. In fact, the State indicated that it may have lost money in the prosecution of both Nunez and the Vasquezes even after forfeiting their property. These disparities merely underscore the contention that the forfeitures are punitive. The cases of Nunez and the Vasquezes further illustrate that any parity between costs and recovery under the Controlled Substances Act is both coincidental and unintentional. Also unpersuasive is the notion, set forth in Hal-per and mentioned by the State, that forfeitures are a “rough justice” approximation of the monetary costs of the crime. See Halper,
{90} If a remedial sanction is designed to recompense the utterly incalculable social costs of the illicit drug trade then there is no question that civil forfeiture is punitive. There will never be a consensus about the monetary value of the social damage caused by illegal drugs, much less any particular defendant’s share of that cost. The property is taken without regard to its value or the defendant’s portion of responsibility for the social devastation. The forfeiture can, thus, only be characterized as a sanction whose correlation to the harm is completely arbitrary-in other words it is punishment. See King, supra, at 164 (stating that a civil sanction is punitive if, “assuming the statute does
5. Tied to crime
{91} Among the most compelling arguments that civil forfeiture is punitive is that it is conditioned upon the commission of a crime. The forfeiture necessarily requires proof of the criminal offense and by its terms compels the defendant to relinquish property rights precisely because he or she has committed a crime.29 Our Court of Appeals was correct in determining “that the legislature’s choice to tie forfeiture directly to the commission of drug offenses under the Controlled Substances Act confirms the punitive nature of these provisions.” Albuquerque Police Dep’t v. Martinez (In re Forfeiture of Fourteen Thousand Six Hundred Thirty Nine Dollars),
6. Innocent owner
{92} Our forfeiture statute includes some innocent owner provisions. A common carrier is not subject to forfeiture “unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of the Controlled Substances Act.” Section 30-31-34(0(1). Aircraft, vehicles, and vessels cannot be forfeited if the violation of the Act was “committed or omitted without [the owner’s] knowledge or consent.” Section 30-31-34(0(2). The “forfeiture of a conveyance encumbered by a bona fide security interest shall be subject to the interest of a secured party if the secured party neither had knowledge of nor consented to the” violation of the Act. Section 30-31-34(0(4).
{93} Our Court of Appeals properly concluded that these innocent owner provisions demonstrate the “legislature’s intent to punish only those persons involved in drug trafficking.” $14,639,
D. Summation
{94} Because of the strength of New Mexico precedent, the punitive nature of in rem jurisdiction, the deterrent function of the sanction, the lack of correlation between the penalty and the crime, the fact that the sanction is tied to a crime, the exclusion of innocent owners from the sanction, and the fact that a fundamental right is affected, we conclude that the remedial objectives of forfeitures under the Controlled Substances Act are incidental, and that the purposes of the sanction are decidedly punitive for double-jeopardy purposes.
X. PROCEDURAL ISSUES
{95} With the exception of Chavez, all the cases in these consolidated appeals were
A. Plea Agreements
{96} The State maintains that the guilty plea of Gallegos resulted in a waiver of the defendant’s double-jeopardy claims. The State bases its argument on Montoya v. New Mexico,
{97} In the case of Gallegos before us today, we interpret the effect of the defendant’s plea agreement under the New Mexico Constitution and New Mexico law. Generally, a guilty plea waives the right to appeal. State v. Handa,
{98} As we have stated above, under the New Mexico anti-waiver statute, the double-jeopardy defense may be raised at any time, both before and after judgment. Section 30-1-10; see Breit,
{99} We note that the Court of Appeals, in addressing this issue in Handa,
{100} We thus hold that Gallegos did not waive his double-jeopardy claim by entering into a guilty plea agreement.
B. Default Judgments
{101} Because Nunez, Gallegos, Edward Vasquez, and Marguerite Vasquez failed to appear at their forfeiture hearings, their property was forfeited by default judgment. The State would have us dismiss their double-jeopardy claims on the basis that
{102} It is absurd to claim that a person is not punished by a default forfeiture judgment. As we have explained, we look to the purpose served by statutory sanctions in order to determine whether they are punitive in nature. Schwartz,
{103} We hold that jeopardy does attach upon the entry of a default judgment in a forfeiture proceeding under the Controlled Substances Act.
XI. SINGLE TRIAL
{104} We hold that civil forfeiture under the Controlled Substances Act is punishment for double-jeopardy purposes under the New Mexico Constitution. We therefore hold that, henceforth, all forfeiture complaints and criminal charges for violations of the Controlled Substances Act may both be brought only in a single, bifurcated proceeding. The single proceeding will eliminate the potential for double-jeopardy violations. See Luis Garcia-Rivera, Comment, Dodging Double Jeopardy: Combined Civil and Criminal Trials, 26 Stetson L.Rev. 373, 375-76 (1996) (“[T]he only feasible way to avoid double jeopardy is to bring both civil and criminal suits in one combined proceeding.”). It will also remedy some of the other factors that bring into question the fairness of modern forfeiture. Most notably, the indigent defendant will have available the assistance of counsel in the forfeiture proceeding because both the property and the criminal actions will take place in a single trial.31 Of course, the State is not restricted from bringing only a criminal action or only a forfeiture action. However, if it elects to bring both a forfeiture complaint and a criminal proceeding growing out of the same facts, the action may be brought only in a single, bifurcated proceeding.
{105} We are not unmindful that a single proceeding may pose some logistical or procedural complexities. See, e.g., Garcia-Rivera, supra, at 398-404 (discussing procedural differences between criminal trial and civil forfeiture). However, bifurcated proceedings are a common mechanism for dealing with factually identical but procedurally distinct aspects of a single action.32 There is no other way, under current New Mexico law, that the State will be able to prosecute, under the Controlled Substances Act, both the crime and the forfeiture.
XII. BURDEN OF PROOF
{106} One of the most onerous aspects of the New Mexico forfeiture statutes is that the defendant bears the burden of showing that he or she should be exempt from the provisions of the forfeiture statutes:
It is not necessary for the state to negate any exemption or exception in the Controlled Substances Act in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under the Controlled Substances Act. The burden of proof of any exemption or exception is upon the person claiming it.
Section 30-31-37. This ambiguous language fails to specify the precise burden of proof borne by the State when it initiates a forfeiture
{107} However, Section 30-31-37 may be a statutory exception to the general rule that civil claims must be established by a preponderance of the evidence. Its ambiguous language suggests that the burden of proof in a forfeiture action is not on the State to prove that the property was used in a crime, but on the defendant to prove that it was not. This leaves open the possibility that the State is initially required to offer no more than probable cause that the property in question is contraband, proceeds, or the instrumentality of a drug crime. This is a standard adopted by federal law and by some states. See Sean M. Dunn, Note, United States v. Ursery: Drug Offenders Forfeit Their Fifth Amendment Rights, 46 Am. U.L.Rev. 1207, 1212-15 (1997) (discussing burdens of proof under federal law).
{108} The fact that the State bears a low burden of proof — be it either probable cause or preponderance of the evidence — when it initiates the deprivation of a fundamental constitutional right raises grave due process concerns. See Schaefer v. Whitson,
{109} The advantages to the State under these circumstances cannot be overstated. At the time the forfeiture action is filed, the property is almost always already in possession of the State because it was confiscated at the time of the arrest. The proceeding begins with a virtual presumption that the confiscation was proper. Moreover, because forfeitures are nominally civil proceedings, protections that are indispensable in a criminal setting — such as proof beyond a reasonable doubt, the right to counsel, presumption of innocence, the right to confront one’s accusers — are not guaranteed. See Helvering v. Mitchell,
{110} We therefore hold that, in the forfeiture portion of the trial, the burden of proof will be on the State to prove by clear and convincing evidence that the property in question is subject to forfeiture. In doing so, we are joining the Supreme Court of Florida’s decision to place this standard of proof upon state forfeiture proceedings. See Department of Law Enforcement v. Real Property,
{111} We are not expressly deciding at this time whether the burden of proof set forth in Section 30-31-37 is always unconstitutional. That statute may still apply in a solitary forfeiture action that involves no
XIII. RETROACTIVITY
{112} The final question is the extent to which our holding today applies retroactively. The New Mexico Constitution provides that, “[n]o act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case.” N.M. Const. art. IV, § 34. The threshold question in retroactively applying a new rule of criminal law is whether doing so would violate constitutional prohibitions against ex post facto laws. See U.S. Const. art. I, § 10 (states may not pass ex post facto laws); N.M. Const, art. II, § 19 (same prohibition). The Latin phrase “ex post facto” implicates in its literal meaning any law passed “after the fact.” Generally, this means “that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.” Collins v. Youngblood,
{113} In Santillanes v. State we set forth factors to be considered in determining whether a new rule of criminal law should be applied retroactively: “[R]etrospeetive or prospective application must be determined on a case by case basis by looking at three issues: the purpose of the new rule, the reliance placed upon the old rule, and the effect upon the administration of justice that retroactive application would have.” Santilanes v. State,
{114} The retroactive application of law is triggered at the moment when a change of law becomes enforceable. A change of law by an appellate court is not established until the date the court’s opinion is filed. Obviously, once the new rule is enforceable, it will apply to all subsequently filed eases. Conversely, it seems apparent that a change of law by an appellate court will have no retroactive application to any case that is finalized before the date the court’s decision is filed. State v. Rogers,
{115} However, when the new rule applies to the protection against double jeopardy, it is not apparent that retroactive application should be precluded from finalized cases. Moreover, it is evident that the preservation and fundamental error requirements for pending cases do not apply. This is because, under New Mexico’s non-waiver statute, Section 30-1-10, the double-jeopardy defense cannot be waived and may be raised at any time, including on appeal. Conceivably, under our holding today, the non-waiver provision could require the State to reopen cases as old as 1972 when the Controlled Substances Act was first passed. This question was alluded to by our Court in Jackson v. State,
{116} We conclude that the retroactive application of our holding today to finalized cases would, under the Santillanes test, have a deleterious “effect upon the administration of justice.” Santillanes,
XIV. CONCLUSION
{117} We hold that the New Mexico Double Jeopardy Clause forbids bringing criminal charges and civil forfeiture petitions for the same crime in separate proceedings. Our holding is unaffected by whether jeopardy attached first in the criminal proceeding or in the civil forfeiture action. Moreover, the defendants’ double-jeopardy rights are unaffected by either guilty pleas or default judgments.
{118} In the cases of Chavez and Nunez, we affirm the dismissal of their criminal charges. Further, we reverse the criminal convictions of Gallegos, Edward Vasquez, and Marguerite Vasquez.
{119} We further order that, henceforth, civil forfeiture complaints and criminal charges for the same crime under the Controlled Substances Act may both be brought only in a single, bifurcated proceeding. Furthermore, in the forfeiture portion of the proceeding, the State must prove its case by clear and convincing evidence. Our holding today is retroactive to eases pending on the date this opinion is filed.
{120} IT IS SO ORDERED.
Notes
. The forfeiture statute's only reference to proceeds is "money which is a fruit” of the drug crime, and does not include purchases made with drug proceeds. Section 30-31-34(F). Thus, by relying upon the definitions of academic commentators rather than our statute, the majority appears to be unintentionally expanding the scope of the statute.
. See Majority Opinion, ¶ 86 ("Defendants are deprived of all the profits and proceeds of their drug trade, and potentially any worldly goods, including legally acquired property, that served as an instrumentality to crime.”).
. The majority apparently has accepted Gallegos’s argument that “there is utterly no evidence in the record to show that the $299 ... was either a proceed or an instrumentality of illegal activity. Rather, the evidence in the district court presents a nearly airtight demonstration that tire money came from [his] paycheck ....” This argument misunderstands the appropriate inquiry in this case. This appeal does not present the opportunity for this Court to review the validity or accuracy of the default judgment. Instead, the default judgment is a conclusive judicial finding that the money was the fruit of Gallegos’s crime. If the majority believes that Gallegos’s money was legally acquired, then it is paradoxical that the forfeiture judgment is left intact by the majority’s opinion.
. Further, the majority, while recognizing that forfeiture involves a property interest, mistakenly refers to this interest as "one of the most fundamental liberty interests.” Majority Opinion, ¶ 33, ¶ 75 (“We regard forfeiture with mistrust because it divests the individual of ... one of the most fundamental liberty interests.") (emphasis added). I believe the right to property is separate and distinct from the right to liberty. See Board of Regents of State Colleges v. Roth,
. As I discuss below, I believe the majority has merged the analysis and principles of successive prosecution and multiple punishments.
. Cf. Ursery,
. One other significant difference in the analysis of the majority is the inexplicable rejection of reliance on legislative intent, the first prong of the Ursery test, even though this test would seem to expedite the punishment analysis used by the majority in some situations. Cf. State v. Franco,
. The holding in Halper "does not authorize courts to undertake a broad inquiry into the subjective purposes that may be thought to lie behind a given judicial proceeding. Such an inquiry would be amorphous and speculative, and would mire the court in the quagmire of differentiating among the multiple purposes that underlie every proceeding, whether it be civil or criminal in name.” Halper,
. This holding also appears to be internally inconsistent. See Majority Opinion, V 109 (noting the State’s advantages in a forfeiture, and stating that “because forfeitures are nominally civil proceedings, protections that are indispensable in a criminal setting — such as proof beyond a reasonable doubt, the right to counsel, presumption of innocence, the right to confront one’s accusers— are not guaranteed”).
. Of course, the fact that the majority is willing to consider the forfeiture even though it was obtained pursuant to a default judgment requires a somewhat hypothetical approach to this issue. In any event, we clarified in Owens that a violation of double jeopardy occurs only when tire second prosecution is for the same act and crime both in law and fact as the first prosecution.
. I agree that this case should not be applied retrospectively, but for a different reason. I believe that the anti-waiver statute applies only to violations of the statutory protection of double jeopardy and not to constitutional claims. Indeed, under Article III, Section 1 of the New Mexico Constitution, the legislative branch does not create rules of preservation with respect to constitutional rights, or generally for that matter, and to the extent that Section 30 — 1—10 conflicts with Rule 12-216, it would have to be declared unconstitutional. See Southwest Community Health Servs. v. Smith,
Lead Opinion
ORDER ON MOTIONS FOR REHEARING
{121} Motions for rehearing having been filed in this ease together with briefs submitted by the parties and the Court being fully advised: The motions for rehearing hereby are denied.
{122} In order to clarify one portion of the opinion, however, we have opted to do so by this separate published Order. See State v. Gonzales, 1999 NMSC-033, ¶ 32,
{123} The question arises whether the State may be permitted to set aside default judgments it has obtained in pending cases so that it may proceed with criminal prosecutions which would otherwise constitute double jeopardy. Rule 1-055(C) NMRA 2000 provides: “For good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 1-060.” In general, “because default judgments are disfavored and causes generally should be tried on their merits, we have counseled trial courts to be liberal in determining the existence of grounds that satisfy Rule 60(B).” Sunwest Bank of Albuquerque v. Rodriguez,
{124} There are a number of authorities for the proposition that any party obtaining a default may move to have it set aside. 10 James Wm. Moore et al., Moore’s Federal Practice § 55.50[2][f] (3rd ed.1999); Ferraro v. Arthur M. Rosenberg Co.,
{125} We, therefore, hold that it is appropriate, to accomplish justice, to allow the State to move to set aside default forfeiture judgments already obtained in pending cases and to proceed in one bifurcated criminal prosecution in the manner set out in the filed opinion.
{126} Justices Baca and Serna dissent from the original opinion.
{127} IT IS SO ORDERED.
/S/ PAMELA B. MINZNER
PAMELA B. MINZNER, Chief Justice
/S/ JOSEPH F. BACA
JOSEPH F. BACA Justice
/S/ GENE E. FRANCHINI
GENE E. FRANCHINI, Justice
/S/ PATRICIO M. SERNA
PATRICIO M. SERNA Justice
/S/ PETRA JIMENEZ MAES
PETRA JIMENEZ MAES, Justice
Dissenting Opinion
(Dissenting).
Dissenting Opinion
(dissenting).
{128} I must respectfully DISSENT. Under the majority opinion, New Mexico stands alone from both the federal analysis and the analysis of other states, despite the fact that Ursery has been examined by numerous state courts. In its radical departure, the majority even goes much further than the proposed analysis by Justice Stevens, the only Justice on the United States Supreme Court who dissented from Ursery. Ultimately, I am not persuaded that we should reject Ursery, and even if I were, I believe the opinion errs by creating a constitutionally protected property right to drug proceeds.
I. The Majority Creates a Constitutional Right to the Proceeds of Crime
{129} The majority’s proceeds of crime analysis is, to me, deeply troubling. In a laudable attempt to simplify this area of law, the majority simply goes much too far. In doing so, I believe the majority ignores the admonition in Breit that “[rjaising the bar of double jeopardy should be an exceedingly uncommon remedy.” Breit,
{131} Defendant Chavez was charged with, among other things, possession of marijuana with intent to distribute for two different occasions. As the majority notes, Defendant Chavez and APD reached “compromise settlements” regarding the currency. Majority Opinion, ¶7. APD kept $2529, and returned $1089 to Chavez. Chavez kept his van. In other words, currency was the only item Chavez forfeited, and he bargained for this result, thereby conceding that the currency which he forfeited to APD was the fruit of his illegal sale of drugs. Because there was no default judgment, even under the majority’s analysis, Chavez knowingly agreed that the money was drug proceeds. Chavez accepted and, in fact, bargained for the result in the forfeiture of his drug proceeds, and he did not appeal the forfeiture judgment. This Court has before it a final judgment by a New Mexico court that Chavez’s currency was drug proceeds. Thus, the issue of whether Chavez’s currency was legally acquired has been finally resolved and is not before this Court.
{132} Despite this judgment, the majority astonishingly, and without specific discussion, affirms the dismissal of Chavez’s criminal charges on the basis of double jeopardy. In order to reach this result, the majority must conclude that the judgment involving Chavez in which he forfeited only drug proceeds to APD resulted in a deprivation of Chavez’s constitutional right to property, thereby constituting punishment for purposes of the double jeopardy clause. Thus, the majority apparently concludes that in spite of Chavez’s concession that the currency was drug proceeds, the forfeiture of the money constitutes jeopardy. It is indeed remarkable to create for drug dealers a constitutional right to the proceeds of their criminal activity.
{133} The same result is true for Defendant Gallegos, although this conclusion may be obscured by the fact that the forfeiture was obtained by a default judgment. Because Gallegos failed to contest the forfeiture of $299, the trial court entered a default judgment. Again, however, this is a final determination that Gallegos’ currency was not legally acquired and was in fact the fruits of his crime. The majority, in the recitation of the facts, implies that Gallegos legally obtained his currency and could not contest the forfeiture due to his inability to afford an attorney.
{134} By creating a constitutional property right in drug proceeds, the majority goes much further than even Justice Stevens in Ursery. Justice Stevens, in his dissent, writes that proceeds of crime are not a legal property interest, similar to illegal drugs and paraphernalia, and concurred in the affirmance of the conviction of defendants resulting in life imprisonment, and a $250,000 criminal fine, as well as forfeiture of currency in the amount of $405,089 in a separate proceeding because “the forfeiture of such proceeds is not punitive.” Ursery,
Seizure of the profits or proceeds of crime is similarly noneontroversial. The idea of depriving a criminal of the profits of his [or her] wrongdoing is rooted in equity and is morally compelling. The idea that one should not profit from [one’s] own wrong undergirds the familiar equitable rule that a killer cannot inherit from his [or her] victim.
Cheh, Easy, supra, at 15; see e.g., Brand, supra, at 305 (“Neither forfeiture of the proceeds of crime, such as money obtained from a drug deal or property bought with that money, nor forfeiture of contraband, such as illegal drugs, deprives an accused of anything to which he [or she] has a legal right.”). For some reason, however, the majority has chosen to reject this ubiquitous proposition, and in doing so, in my opinion, denigrates the fundamental nature of the right to acquire and possess legally obtained property.
{135} Thus, the majority holds, as no other court has held and as no Justice on the Supreme Court has advocated, that individuals have a constitutionally protected property right to the proceeds of the unlawful sale of illicit drugs.
II. Default Judgments
{136} The majority also concludes that jeopardy attaches to a default judgment in a forfeiture proceeding. See Majority Opinion, ¶ 102 (asserting, without support, that because forfeiture is punitive that it is “absurd” and “nonsense” to conclude that default judgments do not violate double jeopardy). Respectfully, I disagree. A default judgment either renders the property “ownerless” or represents abandonment of the property by the owner. Even Justice Stevens recognized this fact in dismissing the majority’s reliance in Ursery on the government’s ability to summarily forfeit unclaimed property: “Property that is not claimed ... is considered abandoned; it proves nothing that the Government is able to forfeit property that no one owns.”
[T]he most persuasive reason why a forfeiture that is based upon a default or failure to file a timely claim, does not bar a subsequent criminal prosecution, is that the defendant has either failed to assert an ownership interest in the first instance, or by failing to answer, has effectively abandoned any claim to the property____ Moreover, “[t]o hold otherwise, would allow criminal defendants to choose their punishment. A criminal defendant could, decide to forfeit material possessions in lieu of going to prison.”
People v. Prince,
{137} Under the Forfeiture Act, a contested forfeiture action could establish that a person other than the defendant is the actual owner of the property, and the property could still be subject to forfeiture if the owner knew that the property was used for illegal purposes, in which case the defendant could not legitimately claim any form of personal punishment regardless of whether the criminal defendant received notice of the proceeding. A contested forfeiture action could also establish a record from which it would be possible for an appellate court to review in a meaningful way a claim of double jeopardy. For example, in the case of Defendant Gallegos, he should at least have to appear at the proceeding to force the government to establish a record concerning the property’s taint rather than force this Court, as the majority does, to presume, possibly inaccurately, that he told the truth about the source of his forfeited money. Without a contested claim, we should instead presume from the default judgment that the money was the fruit of a crime as shown by the government and that the property has been abandoned.
{138} Because a default judgment establishes that the property is either ownerless or abandoned, then there is no owner, including the defendant, who has been punished or put in jeopardy for purposes of the Double Jeopardy Clause. Defendants Nunez, Gallegos, Edward Vasquez and Marguerite Vasquez presumably forfeited instrumentalities and proceeds through default judgments, thereby abandoning their ownership of the property. Thus, I would conclude that these Defendants were not punished by the default proceedings and double jeopardy does not apply. I would reverse the dismissal of the criminal charges against Defendant Nunez, and affirm the convictions of Defendant Gallegos, Defendant Edward Vasquez, and Defendant Marguerite Vasquez.
III. No Distinctive State Characteristics
{139} Under the Gomez standard, this Court departs from federal analysis because the federal analysis is flawed, because of
A. Previous Departure From Federal Law
{140} Most importantly, the majority’s assertion that New Mexico has departed from the federal standard is misleading. In Schwartz,
The double jeopardy Clause “protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.” Here we are concerned with the third of these protections, the protection against multiple punishments.
Both Schwartz and the present case involve double jeopardy claims arising out of criminal proceedings following civil proceedings. Thus, under Schwartz, this case involves multiple punishments, as the majority apparently agrees by applying the test derived from Schivartz.
{141} In Schwartz, we held that, in respect to multiple punishments, “our analysis is identical for both the federal and state clause.” Id. at 625,
{142} As noted above, I believe that the analysis in Schwartz summarizes federal law, and, in any event, as discussed below, the Schwartz test does not conflict with the analysis of Ursery. As in State v. Woodruff,
B. Facial Distinctions Between the Federal and New Mexico Provisions are Irrelevant
{143} The majority asserts that the New Mexico Double Jeopardy Clause is facially different from the federal counterpart. See Majority Opinion, ¶¶ 24-27. However, the facially different language relates to successive criminal prosecutions and clearly does not apply to the present cases. See N.M. Const, art. II, § 15 (stating that “when the indictment, information or affidavit upon which any person is convicted charges different offenses or different degrees of the same offense and a new trial is granted the accused, he [or she] may not again be tried for an offense or degree of the offense greater than the one of which he [or she] was convicted.”). This provision embodies the well-established principle that conviction of a lesser offense implies an acquittal of a greater offense, see State v. Martinez,
C. Dismantling of New Mexico Precedent is Not Required
{144} The majority declares that New Mexico has a “time-honored precedent that has always regarded forfeiture as punitive.” Majority Opinion, ¶ 17. There are multiple problems with this statement: (1) much of the older authority cited by the majority is clearly distinguishable; (2) more recent case law is dependent on federal law; and (3) even if the proposition were true, the test in Schwartz does not require this Court to hold that forfeiture violates double jeopardy.
{145} The majority states that “the presumption that forfeiture is punitive can be traced to the earliest opinions of the Territorial Supreme Court, prior to our statehood,” Majority Opinion, ¶ 73, and relies on United, States v. Lucero,
{146} It is true that recent New Mexico cases have referred to forfeiture as being punitive in nature. However, none of these
{147} Finally, even if New Mexico has “time-honored” precedent noting that forfeiture is punitive, this conclusion is not dispositive under the Schwartz test. In Schwartz, this Court, relying on Halper, set forth the following test in determining, not merely whether a particular sanction has some punitive aspects, but whether the sanction is punishment for the specific purposes of double jeopardy: “If the penalty may be fairly characterized only as a deterrent or as retribution, then the revocation is punishment; if the penalty may be fairly characterized as remedial, then it is not punishment for the purposes of double jeopardy analysis.” Schwartz,
IV. The Schwartz Test is Not “Unique” to New Mexico
{148} The analysis ultimately adopted by the majority is actually strikingly similar to the Ursery test. This signifies to me that the test itself, though not necessarily its application, is not flawed under the majority’s analysis.
{149} The test adopted in the opinion, taken from Schwartz, is
(1) whether the State subjected the defendant to separate proceedings; (2) whether the conduct precipitating the separate proceedings consisted of one offense or two offenses; and (3) whether the penalties in each of the proceedings may be considered “punishment” for the purposes of the Double Jeopardy Clause.
{150} The test to determine whether civil forfeiture constitutes punishment in Ursery is: (1) whether the legislative body intended to create a criminal punishment; and (2) if not, whether the statutory scheme was so punitive either in purpose or effect as to negate the legislative body’s intention to establish a civil remedial mechanism.
{151} The majority departs from Ursery in the rejection of Ursery’s requirement of the “clearest proof’ that a statute is so punitive as to render the forfeiture proceedings essentially criminal in character.
V. The Forfeiture Statute is Not Sufficiently Punitive to Become Criminal in Nature
{152} The majority relies on Schwartz in order to determine whether a separate forfeiture proceeding violates double jeopardy. However, as stated above, the test in Schwartz determines whether a sanction may be fairly characterized as remedial. Additionally, Halper, on which Schwartz relied, stated that a civil sanction may be considered as punishment for purposes of double jeopardy only if it is “so extreme and so divorced from the Government’s [remedial objective] as to constitute punishment.” Halper,
{153} The majority states that one of the most compelling arguments supporting the conclusion that civil forfeitures are criminal is that they are conditioned on the eommission of a crime. Majority Opinion, ¶91 (“The forfeiture necessarily requires proof of the criminal offense and by its terms compels the defendant to relinquish property right precisely because he or she has committed a crime.”). In addition, the majority states that the innocent owner provision supports this conclusion. I disagree. An owner’s property can be subject to forfeiture even though that owner did not commit a crime. Section 30-31-34(G)(2) states that “no conveyance is subject to forfeiture under this section by reason of any act or omission established for the owner to have been committed or omitted without his [or her] knowledge or consent.” Thus, the forfeiture statute only requires the state to prove that the owner knew or consented to the use of his or her conveyance by an individual violating the Controlled Substances Act, not that the owner, himself or herself, violated the Controlled Substances Act, either by possessing or distributing controlled substances. This supports the conclusion in Ursery that forfeiture “encourages property owners to take care in managing their property and ensures that they will not permit that property to be used for illegal purposes,” thereby reinforcing the remedial objectives of the statute.
{154} The opinion holds that forfeiture is “the most extreme sanction the state can bring against the property owner.” Majority Opinion, ¶ 75 (“ ‘Forfeiture is to fines what capital punishment is to incarceration.’” (quoting Cheh, Easy, supra, at 10)). The statutory criminal fines for the activities at issue range from $5000 to $15,000, while the value of the forfeitures in the present case range from $39 to $2179 or a 1989 Chevy pickup. Thus, the value of the forfeited
{155} Importantly, the majority, by relying so heavily on commentators, incorrectly analogizes the New Mexico forfeiture statute to modem federal law. Compare Section 30-31-34, with 21 U.S.C. § 881 (1994 & Supp. II 1996). As alluded to above, a reading of the federal counterpart reveals a clear difference, which in fact served as the basis of Justice Stevens’ dissent in Ursery: “The following shall be subject to forfeiture to the United States and no property right shall exist in them: ... All real property, including any right, title, and interest ... in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year’s imprisonment .... ” 21 U.S.C. § 881(a)(7) (emphasis added). While the opinion attempts to characterize forfeiture in New Mexico as extremely broad and far reaching, New Mexico’s statute is actually much narrower than the federal counterpart, which allows forfeiture of any property, including a residence and land. New Mexico’s statute is limited to contraband, paraphernalia, containers, conveyances, and cash proceeds. Thus, under New Mexico law, real property, even if purchased with drug proceeds, can never be subject to forfeiture. The majority’s reliance on commentators’ analysis of the much-broader federal forfeiture law demonstrates the problematic tendency towards theory, rather than reasoning based on the facts before the Court.
{156} Further, with respect to the types of property articulated in the statute, the forfeiture of conveyances is limited to the most extreme drug crimes, trafficking and distribution, which are second, third, and fourth degree felonies. As a result, the statute is, contrary to the opinion’s conclusion otherwise, tied to the seriousness of the crime. Thus, the narrow nature of New Mexico’s statute does not call for the majority’s departure from federal law, and in fact may have even been acceptable to Justice Stevens. Justice Stevens emphasized that his disagreement with the majority opinion in Ursery was largely founded on the forfeiture of a house, and in fact noted that the early eases relied on by the majority “involved the forfeiture of vessels whose entire mission was unlawful and on the Prohibition-era precedent sustaining the forfeiture of a distillery ____ Notably none of those early cases involved the forfeiture of a home as a form of punishment for misconduct that occurred therein.” Ursery,
VI. Forfeiture in New Mexico May Be Fairly Characterized as Remedial
{157} Applying the Schwartz test, I believe that the forfeiture statute can neither be characterized “only as a deterrent or as retribution,” Schwartz,
VII. Advisory Conclusions Concerning Due Process
A. Right to Counsel
{158} The majority opinion contains several holdings which appear to me to be advisory. The majority attempts to create a right to counsel in the second part of a single, bifurcated proceeding which would resolve forfeiture disputes following a criminal trial.
B. Burden of Proof
{159} The majority concludes “that the State bears a low burden of proof ... when it initiates the deprivation of a fundamental
{160} The majority holds that, “in the forfeiture portion of the trial, the burden of proof will be on the State to prove by clear and convincing evidence that the property in question is subject to forfeiture.” Majority Opinion, ¶ 110. Inexplicably, the majority also states that the burden of proof in Section 30-31-37 may not always be unconstitutional. See Majority Opinion, ¶ 111 (“[Section 30-31-37] may still apply in a solitary forfeiture action that involves no criminal prosecution.”). This peculiar reasoning also seems to raise grave equal protection concerns. Apparently, although the majority concludes that forfeiture of property, a fundamental constitutional right, is punishment if one is also criminally prosecuted, when the State institutes only forfeiture proceedings, it is not punishment for purposes of invoking due process protections such as a heightened burden of proof.
{161} Further, the majority is apparently basing its declaration of the unconstitutionality of the standard of proof under the Controlled Substances Act on the Due Process Clause. However, despite the alleged uneonstitutionality of the statute, the majority does not disturb the outstanding forfeiture judgments against these defendants. Clearly, the majority could not due so, because the forfeiture judgments, not having been appealed by these defendants, are not subject to the Court’s review. This additionally illustrates the advisory nature of this aspect of the majority’s opinion.
VIII. Single Offense
{162} The majority determines that the crime of distribution or trafficking of controlled substances and the forfeiture of proceeds or instrumentalities constitutes a single offense. Specifically, the majority “conclude[s] that an examination of the Controlled Substances Act reveals that there is no fact needed to prove the drug trafficking violation that is not also needed to prove the grounds for forfeiture,” thus, “[t]he forfeiture statute entirely subsumes the criminal offense.” Majority Opinion, ¶ 57. In order to reach this result, the majority applies the federal test from Blockburger,
{163} This Court previously applied Blockburger to a similar question in Schwartz, and as previously discussed, Schwartz addressed an analogous double jeopardy issue by applying federal law instead of state constitutional law. Indeed, the Court of Appeals, in State v. Powers, 1998—NMCA-133, ¶¶ 21-29,
{164} On the question of whether forfeitures under Section 30-31-34 and criminal convictions under Sections 30-31-20, -22, constitute a single offense for purposes of double jeopardy, I believe the majority misapplies federal law and misinterprets the statutory provisions under the Controlled Substances Act. The majority asserts that the innocent owner provisions support the conclusion that a single offense is at issue because these provisions “limit the application of the forfeiture statute exclusively to those who are in “violation of the Controlled Substances Act.’ ” Id. (quoting Section 30-31-34(G)(1)). I disagree because I believe the innocent owner provision reveals the distinct elements required for forfeiture as compared to the elements required for the crime of distribution or trafficking controlled substances. The plain language of the forfeiture statute states that a common carrier is not subject to the forfeiture of a conveyance “unless it appears that the owner ... is a consenting party or privy to a violation of the Controlled Substances Act,” Section 30-31-34(G)(1), and that other owners’ conveyances are not subject to forfeiture unless the owner knows or consents to the drug crime, Section 30-31-34(0(2). As a result, forfeiture of an instrumentality has the following elements: (1) the subject property is a conveyance; (2) it was “used or intended for use to transport or in any manner facilitate the transportation for the purpose of sale of’ controlled substances, Section 30-31-34(D); and (3) the owner of the subject property knew or consented to such use, Section 30-31-34(G)(2). By contrast, the crime of possession of a controlled substance with intent to distribute or traffic has different elements: (1) the defendant had a controlled substance; (2) the defendant knew it was a controlled substance; and (3) the defendant intended to transfer it to another. See UJI 14-3104 NMRA 1999; UJI 14-3111 NMRA 1999. Thus, the forfeiture of an instrumentality requires proof of the distinct element of the use of a conveyance to transport a controlled substance, whereas the crime of possession with intent to distribute requires proof of a higher level of a culpable mental state on the part of the owner/defendant, an intention to transfer the controlled substance. “If either information requires the proof of facts to support a conviction which the other does not, the offenses are not the same and a plea of double jeopardy is unavailing.” Owens v. Abram,
{165} By way of illustration, it is useful to consider the facts relating to Defendant Marguerite Vasquez. Marguerite was arrested while driving a vehicle registered in her name and later forfeited to the government. Her husband, Edward Vasquez, was a passenger in the car. The police seized roughly two kilograms of marijuana, 123 grams of cocaine, and currency in the amount of approximately seventy-nine dollars. At trial on his criminal charges, Edward claimed that the drugs were his, that
IX. Retroactivity
{166} Following the emphasis the majority places upon the forfeiture of instrumentalities and proceeds, see Majority Opinion, ¶ 75 (“But with regard to that car or cash, and the fundamental right of ownership, no penalty is more extreme than stripping a person of that right without compensation.”), and the double jeopardy protection of the New Mexico Constitution, see Majority Opinion, ¶ 27 (“When compared to recent United States Supreme Court Fifth-Amendment jurisprudence, New Mexico’s constitutional and statutory protection against double jeopardy, on its face, is of a different nature, more encompassing and inviolate.”), the majority then places arbitrary limits upon those defendants who have allegedly suffered the violation by restricting the retroactivity of the holding. See Majority Opinion, ¶ 116. Although the majority claims that the holding is the inevitable result of New Mexico law, dating back to territorial days, the majority reaches a contradictory conclusion by holding that forfeiture as punishment is a “new rule of law” which, if applied to forfeiture eases dating back to 1972, would “have a deleterious ‘effect upon the administration of justice.’ ” Majority Opinion, ¶ 116 (citation omitted). If precedent required the result
X. Successive Prosecution Versus Multiple Punishment
{167} The majority criticizes the United States Supreme Court for not “addressing whether the cases in question are multiple punishment or multiple prosecution cases.” Majority Opinion, ¶38. I believe this insight by the majority is highly significant and, if explored, could substantially clarify double jeopardy law. Unfortunately, however, the majority opinion suffers from the exact deficiency that it places on the Court’s opinion in Ursery. The majority opinion relies heavily on the analysis of this Court in Schwartz. In Schwartz, we determined that the issue presented by the appeal was one of multiple punishment. Indeed, the three-part test from Schwartz that is used by the majority can only be directed at multiple punishment and could not be construed as a true successive prosecution inquiry. The third part of the test considers “whether the penalties in each of the proceedings may be considered ‘punishment’ for the purposes of the Double Jeopardy Clause.” Schwartz,
{168} Although Schwartz and the majority’s reliance on that case should make clear that the majority opinion treats this issue as one of multiple punishment, the majority opinion itself demonstrates some confusion on this issue. Majority Opinion, ¶ 30 (“The protection against multiple prosecutions of the same offense is not dependent upon whether jeopardy first attached in the criminal or civil proceeding.”). Under the heading of “New Mexico multiple prosecutions test,” the majority refers to the “multiple punishment analysis” of Schwartz, Majority Opinion, ¶ 36, but then discusses the application of this test as “indispensable in evaluating a multiple prosecution double-jeopardy claim.” ¶38. The majority contends that “[i]f we conclude, under Schwartz, that these are separate proceedings seeking separate punishments for a single offense, there is no question that the prohibition against multiple prosecutions has been violated.” Majority Opinion, ¶ 38. I believe this confusion between multiple punishment and multiple prosecution cases, which finds its genesis in United States ex rel. Marcus v. Hess,
{169} We stated in Swafford,
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him [or her] to embarrassment, expense and ordeal and compelling him [or her] to live in a continuing state of anxiety and insecurity____ Multiple prosecutions also give the State an opportunity to rehearse its presentation of proof, thus increasing the risk of an erroneous conviction for one or more of the same offenses charged.
(Quotation marks and citation omitted). The separate forfeiture proceedings in these cases violates none of the interests protected by the successive prosecution prong of double jeopardy. First, the forfeiture proceeding cannot be considered a true criminal prosecution. Further, as in Powers, the fact that different governmental agencies pursue the forfeiture action and the criminal prosecution “severely limit[s] the extent to which the [forfeiture proceeding] could be used by the State as an opportunity to rehearse its trial strategy for the subsequent felony charges.” Powers,
XI. Conclusions
{170} The majority holds that New Mexico law has distinctive characteristics which warrant departure from federal analysis. However, the test in the majority’s opinion is rather similar to the federal approach; it simply reaches a different result with a substantially similar analysis, a result which is extremely broad, unsupported by authority, and in fact contradicted by all nine Justices of the Supreme Court. Even the authors of the numerous law review articles upon which the majority relies do not support the majority’s holding that drug proceeds are protected as a constitutional property interest.
{171} The present cases warrant neither a radical departure from Ursery nor a conclusion that these cases involve punishment for purposes of the Double Jeopardy Clause. Even if the majority’s decision to depart from Ursery were appropriate, there is insufficient justification to hold that proceeds of criminal activity are a constitutionally protected property interest. Further, I believe that even if a forfeiture action is punishment for purposes of double jeopardy, a default judgment does not constitute punishment because the property is ownerless or abandoned. All of the consolidated cases before this Court could have been completely resolved by these two issues alone. Beyond these issues, I conclude that, under either the Ursery or Schwartz tests, the forfeiture statute, both in purpose and in effect in these cases, is remedial and not sufficiently punitive to transform the proceeding from civil to criminal in character for purposes of the Double Jeopardy Clause.
{172} I therefore, respectfully, DISSENT.
1. See Oregon v. Hass,
2. See, e.g., Gomez,
3. We base our holding today only on the unique characteristics of New Mexico’s double-jeopardy jurisprudence.
4. See, e.g., State ex rel. Schwartz v. Kennedy,
5. See, e.g., Ricketts v. Adamson,
6. State v. James,
7. See Gordon v. Eighth Judicial Dist. Court,
8. Cheh, Easy, supra, at 14; Mary M. Cheh, Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives:
9. See Andrew J. Gottman, Note, Fair Notice, Even for Terrorists: Timothy McVeigh and a New Standard for the ex Post Facto Clause, 56 Wash. & Lee L.Rev. 591, 646 (1999) (suggesting that the “clearest proof’ standard allows for manipulation by the courts because a court can always claim that there is no clear proof that a statute has a punitive effect as long as there is even a single factor that indicates a remedial effect); Leading Case, Double Jeopardy Clause — In Rem Civil Forfeiture, 110 Harv. L.Rev. 206, 210 n. 54 (1996) (“[T]he Court’s ‘clearest proof rule, devoid of guidance as to the necessary showing, fails to protect defendants adequately.”); Brand, supra, at 302-03 (“The sweeping determination that civil forfeitures are non-punitive precludes any further inquiry into double jeopardy considerations in such cases, thus leaving no room for consideration of the Double Jeopardy Clause’s ‘humane’ objectives.”).
10. See, e.g., In re 1982 Honda,
11. See Swafford,
12. See Halper,
13. See Emerald,
14. See, e.g., Bennis v. Michigan,
15. See State v. One 1967 Peterbilt Tractor (In re Seizure & Intended Forfeiture of One 1967 Peterbilt Tractor),
16. See United States v. Lucero,
17. Seward v. Denver & R.G.R. Co.,
18. See State ex rel. Erickson v. McLean,
19. See, e.g., Ozarek,
20. See $14,639,
21. Accord State v. Sunset Ditch Co.,
22. See Shaffer,
23. See Shaffer,
24. See Devlin v. State ex rel. New Mexico State Police Dep’t,
25. See, e.g., Wells, supra, at 169 (“This resort to legal fiction is flawed because it elevates form over substance by failing to account for the reality of in rem forfeiture actions-namely, that civil forfeiture often does punish the owner of the property.”); Brand, supra, at 305 (“The Court’s willingness to justify, on such contrived arguments, the seizure of property as crucial as one's home is worrisome.”); Leading Case, supra, at 210 n. 54 (“[I]f the Court does not rest its decision on the in rem basis of the proceeding, its opinion is left with only one justification: the naked force of precedent.”).
26. See Austin v. United States,
27. See § 30-31-34; see also Peterbilt Tractor,
28. See generally Blumenson & Nilsen, supra, at 35-114; David B. Smith, Asset Forfeiture: A Serious Threat to Our Property Rights, Briefly ... Perspectives on Legis., Reg., & Litig., Oct. 1998, at 4-7 [hereinafter Smith, Threat ].
29. See United States v. Ursery,
30. See United States v. German,
31. We note that in 1996 the New Mexico Legislature passed a new Forfeiture Act that would have ameliorated many of the concerns, discussed in this opinion, that plague modern forfeiture. For unknown reasons, the Act was vetoed by the governor. See Forfeiture Act, S. 10, 42d Leg., 2d Sess. (N.M.1996) (vetoed Mar. 6, 1966). Included in the Act was a provision that shifted to the State the initial burden of proof in a forfeiture healing: “The burden of proof is on the prosecution to establish, by clear and convincing evidence, that the property is subject
A. A judgment for the forfeiture of property shall be entered only upon:
(1) conviction of an owner of the property for a crime related to the forfeiture; any forfeiture proceeding shall be brought in the same proceeding as the criminal matter: however, the two issues shall be bifurcated and presented to the same jury; and
(2) proof by clear and convincing evidence that the property is forfeitable under state law and that a person convicted of a crime related to the forfeiture is an owner of the property.
Id. § 4(A)(1) & (2) (as amended by S. Judiciary Comm., Jan. 30, 1996; amendment struck by S. Fin. Comm., Feb. 3, 1996). The New Mexico Senate Judiciary Committee incorporated the “same proceeding” provision, italicized above. This amendment would have obviated double-jeopardy claims like those before us today. This amendment was subsequently struck by the Senate Finance Committee, and, in any event, the entire bill was vetoed by the governor.
Interestingly, the United States House of Representatives recently passed the Civil Asset Forfeiture Reform Act which was similar in significant ways to our own vetoed Forfeiture Act. See Civil Asset Forfeiture Reform Act, H.R. Res. 216, 106th Cong., 1st Sess. (1999); see also Stephen Labaton, House Passes Bill Making It Harder to Seize Property, N.Y. Times, June 25, 1999, at A1 (“An unusual coalition of liberals and conservatives persuaded the House of Representatives to approve legislation Thursday to make it much harder for Federal and state law enforcement authorities to confiscate property before they bring criminal charges in narcotics and other cases.”). This Court is obviously not alone in its concerns about inherent injustices of modern forfeiture law.
32. See Christopher P. v. State,
33. Cheh, Easy, supra, at 46 (presumption); Smith, Threat, supra, at 4, 24 (hearsay, lawyer); Shannon T. Noya, Comment, Hoisted by Their Own Petard: Adverse Inferences in Civil Forfeiture, 86 J.Crim. L. & Criminology 493, 495-96 (1996); Blumenson & Nilsen, supra, at 47-50 (In an action against property “few of the constitutional safeguards imposed on criminal prosecutions apply.”).
34. We note that Santillanes makes no mention of the fact that the United States Supreme Court discarded the Linkletter test in 1987. In Griffith v. Kentucky the high court adopted a rule of universal retroactivity, holding that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all eases, state or federal, pending on direct review or not yet final.” Griffith,
35. See Rule 12-216(B) NMRA 1999 (on appeal question must be preserved below, be of general public interest, or involve fundamental error); State v. Osborne,