State v. Catlett , 133 Wash. 2d 355 ( 1997 )

Talmadge, J.

— We are asked yet again to enter the "maelstrom of judicial activity,” to determine if the civil forfeiture of a person’s automobile used to facilitate a drug transaction bars a subsequent criminal prosecution for the drug transaction on state and federal constitutional double jeopardy grounds. After United States v. Ursery, 518 U.S. 267, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996), the Fifth Amendment to the United States Constitution does not bar such prosecution. We hold article I, section 9 of the Washington Constitution does not bar such prosecution as well. We reverse the decision of the Court of Appeals and remand for further proceedings.

ISSUE

Does civil forfeiture of property pursuant to RCW 69.50.505 bar a subsequent criminal charge of delivery of a controlled substance under the double jeopardy provisions of either the federal or state constitutions?

FACTS

On October 25, 1993, members of the Spokane Police Department purchased "crack” cocaine from Mary Catlett (aka Mary C. Plata) through the use of a confidential informant. While under surveillance, the informant entered a residence in Spokane. Officers observed a white female (later identified as Catlett) arrive at the residence driving a blue 1982 Plymouth with Washington plates. Catlett entered the residence where the police informant purchased crack cocaine from her. Catlett then left the residence and drove away in the car. A registration check showed the vehicle’s owner to be Mary C. Plata.

On November 19, 1993, officers obtained and executed a search warrant for another Spokane residence where drug transactions occurred. Catlett was present during the search and the police seized the 1982 Plymouth and other evidence.

On January 24, 1994, pursuant to RCW 69.50.505, the Spokane Police Department conducted a civil forfeiture hearing regarding Catlett’s car. The hearing officer ordered the car forfeited to the City of Spokane, finding Catlett was involved in drug sales and her car was used to facilitate such activities.

Catlett was subsequently charged in the Spokane County Superior Court on June 27, 1994 with delivery of a controlled substance in violation of RCW 69.50.401(a).¹ The trial court dismissed the charge stating:

The forfeiture of Mary Plata’s vehicle pursuant to civil proceedings under RCW 69.50.505 is a punishment for purposes of federal and state double jeopardy analysis. Austin v. United States, 509 U.S. [602], 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993); United States v. McCaslin, 863 F. Supp. 1299 (W.D. Wash. 1994); State v. Clark, 124 Wn.2d 90, 101, 875 P.2d 613 (1994).

See App. A to Br. of Resp’t to Court of Appeals, Findings of Fact and Conclusions of Law Re: Mot. to Dismiss For Violation of Double Jeopardy at 7-8.

On appeal, Division Three of the Court of Appeals affirmed the superior court’s dismissal of the drug offense because a civil forfeiture of Catlett’s car and a criminal prosecution for the controlled substance arising out of the same conduct constituted "punishment” for the "same offense,” thus violating double jeopardy. State v. Catlett, 81 Wn. App. 791, 795-96, 916 P.2d 975 (1996). The court applied State v. Clark, 124 Wn.2d 90, 875 P.2d 613 (1994), which was, in turn, based on federal cases like Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993), indicating civil forfeiture was "punishment” for purposes of the Fifth Amendment double jeopardy provision.

We granted the State’s petition for review and asked the parties to respond to the following directive: "Within the time permitted by RAP 13.7(b), the parties shall submit additional briefs addressing the question whether, in light of United States v. Ursery, U.S. [sic] 116 S. Ct. 2135, 135 Led 2d [sic] 549 (1996), Wash. Const. Art. [sic] I, § 9 should be interpreted as more protective than the Double Jeopardy Clause of the Fifth Amendment.”

ANALYSIS

A. The Prior Civil Forfeiture of Catlett’s Car Was Not Punishment for Purposes of the Fifth Amendment

In our divided opinion in State v. Cole, 128 Wn.2d 262, 273, 906 P.2d 925 (1995), we recognized the above-mentioned "maelstrom of judicial activity” in the area of civil forfeiture and Fifth Amendment double jeopardy analysis. In three recent United States Supreme Court cases — addressing in personam civil penalties under the Double Jeopardy Clause, civil forfeiture under the Excessive Fines Clause, and tax proceedings under the Double Jeopardy Clause — the Court appeared to provide an avenue by which a civil forfeiture could be viewed as punishment so that a subsequent criminal prosecution for drug offenses would violate Fifth Amendment double jeopardy principles. See United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989); Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993); and Department of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994). Various courts and commentators extrapolated from these cases that civil forfeiture amounts to punishment for Fifth Amendment double jeopardy purposes.²

In Ursery, decided after the Court of Appeals’ decision in Catlett, the Supreme Court clearly held civil forfeitures are neither "punishment” nor criminal for double jeopardy purposes. Ursery, 116 S. Ct. at 2149. The Ursery Court also clarified that the long-standing rule that civil forfeiture is remedial, enunciated in Various Items of Personal Property v. United States, 282 U.S. 577, 51 S. Ct. 282, 75 L. Ed. 558 (1931); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S. Ct. 489, 34 L. Ed. 2d 438 (1972); and United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S. Ct. 1099, 79 L. Ed. 2d 361 (1984), was not abandoned or altered by its more recent decisions in Halper, Austin, or Kurth Ranch.

[Njothing in Halper, Kurth Ranch, or Austin, purported to replace our traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause. . . . [T]his Court consistently has found civil forfeitures not to constitute punishment under the Double Jeopardy Clause. It would have been quite remarkable for this Court both to have held unconstitutional a well-established practice, and to have overruled a long line of precedent, without having even suggested that it was doing so. Halper dealt with in personam civil penalties under the Double Jeopardy Clause; Kurth Ranch with a tax proceeding under the Double Jeopardy Clause; and Austin with civil forfeitures under the Excessive Fines Clause. None of those cases dealt with ... in rem civil forfeitures for purposes of the Double Jeopardy Clause.

Ursery, 116 S. Ct. at 2147. The Ursery Court stated federal courts misread Halper, Austin and Kurth Ranch when they departed from the well-established rule that " 'civil forfeiture [does] not constitute "punishment” for double jeopardy purposes.’ ” Ursery, 116 S. Ct. at 2142. "None of those decisions purported to overrule the well-established teaching of Various Items, Emerald Cut Stones, and 89 Firearms.” Id. at 2144. Ursery settles the issue of whether a civil forfeiture is "punishment” for purposes of federal double jeopardy. It is not. Ursery is dispositive of the federal double jeopardy issue.

Catlett attempts to distinguish Ursery as a proceeds case, but it is not. In Ursery, the Supreme Court consolidated cases which dealt with civil forfeiture of both property as proceeds and property used to facilitate illegal drug processing and distribution, and held broadly "[t]hese civil forfeitures (and civil forfeitures generally), we hold, do not constitute 'punishment’ for purposes of the Double Jeopardy Clause.” Ursery, 116 S. Ct. at 2138.

The Court of Appeals here relied upon our decision in Clark, which was, in turn, based on Austin, to find civil forfeiture amounted to "punishment” for purposes of Fifth Amendment double jeopardy analysis. Clark has been superseded by Ursery.³ Clark is overruled as it relied exclusively on an analysis of the Fifth Amendment now rejected by Ursery. See Clark, 124 Wn.2d at 95-100.

Our decision on the Fifth Amendment, however, does not end our analysis because we have asked whether Catlett may claim further double jeopardy protection under the Washington Constitution.

B. Catlett’s Prior Civil Forfeiture Was Not Punishment for Purposes of Wash. Const, art. I, § 9

In analyzing Washington’s constitutional double jeopardy provision, Wash. Const, art. I, § 9, both parties in this case have addressed the question of whether the Fifth Amendment and art. I, § 9 are "coextensive.” The State argues that they are coextensive, relying on the recent decision in State v. Gocken, 127 Wn.2d 95, 102, 896 P.2d 1267 (1995): "Washington courts have consistently held the double jeopardy clause of the Fifth Amendment and the double jeopardy clause in Const, art. I, § 9 are virtually identical.” See also State v. Hennings, 129 Wn.2d 512, 527, 919 P.2d 580 (1996); State v. Hardesty, 129 Wn.2d 303, 309 n.2, 915 P.2d 1080 (1996); State v. Cole, 128 Wn.2d 262, 274 n.7, 906 P.2d 925 (1995); State v. Pascal, 108 Wn.2d 125, 131 n.1, 736 P.2d 1065 (1987); State v. Ridgley, 70 Wn.2d 555, 556, 424 P.2d 632 (1967); State v. Schoel, 54 Wn.2d 388, 391, 341 P.2d 481 (1959).

Catlett argues for a protective double jeopardy standard under article I, section 9, citing the view that state constitutional provisions are intended to be more protective of individual liberties. Catlett further urges that this Court not "blindly follow” the federal precedent (i.e. Ursery) discussed above. Supplemental Br. of Resp’t at 16.

The more salient question, however, is how we define "punishment” for purposes of art. I, § 9 of our constitution. The double jeopardy clauses of the Fifth Amendment and Const, art. I, § 9 protect a defendant against multiple punishments for the same offense. Hennings, 129 Wn.2d at 528; State v. Calle, 125 Wn.2d 769, 772, 888 P.2d 155 (1995); State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190 (1991); State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983).

In Cole, we held that double jeopardy did not attach where forfeiture of "proceeds” occurred prior to criminal convictions because forfeiture of the proceeds of an illegal drug transaction is not punitive. See Cole, 128 Wn.2d at 279. The defendants in Cole claimed the forfeitures of their property followed by their criminal convictions amounted to multiple punishments for the same offense, and that their criminal convictions, having been imposed after jeopardy had attached with the civil forfeitures, were prohibited by the double jeopardy clause. Likewise, Catlett asserts the double jeopardy clause bars a related criminal proceeding following civil forfeiture of her car. Yet, in Cole, we noted the threshold inquiry as follows: "[i]n analyzing these claims, we must decide if the civil forfeitures that occurred amounted to constitutional punishments. If they were not punishments, the subsequent convictions ... do not implicate double jeopardy concerns.” Cole, 128 Wn.2d at 274.⁴ See also State v. Frodert, 84 Wn. App. 20, 25-26 and n.3, 924 P.2d 933 (1996) (where the court concluded the threshold requirement of multiple punishments was lacking, other prongs of double jeopardy analysis (i.e., "same offense”) were not addressed). Thus, the significant initial question we must address is whether civil forfeiture is punishment for purposes of art. I, § 9 of our constitution.

Catlett asserts prior case law conclusively establishes RCW 69.50.505 is punitive, citing Deeter v. Smith, 106 Wn.2d 376, 721 P.2d 519 (1986), because forfeiture proceedings are quasi-criminal in nature and punitive in effect. Supplemental Br. of Resp’t at 4; Answer to Pet. for Review at 5. Catlett’s reliance on Deeter is misplaced. In Deeter, this Court stated that for purposes of the Fourth Amendment exclusionary rule, civil forfeitures are quasi-criminal in nature and the exclusionary rule applies. Deeter did not address double jeopardy issues.⁵

Citing Clark, Catlett also contends that civil forfeiture has at least a partially punitive purpose, a deterrent purpose, and therefore the statute is punitive for double jeopardy purposes under article I, section 9; Clark purportedly adopted the "solely remedial” test of Halper. "RCW 69.50.505(a)(8) and (4) thus cannot be said solely to serve a remedial purpose, and forfeiture under these provisions constitutes 'punishment.’ ” Clark, 124 Wn.2d at 99.

The analysis in Clark of what is "punishment” for double jeopardy purposes is infected by the confusion over double jeopardy and civil forfeiture engendered by the pre- Ursery federal cases. Indeed, Ursery rejected the analysis set forth in Clark. The fact that the basis for the civil forfeiture may be criminal activity does not render the forfeiture proceeding either criminal or a resulting forfeiture punishment for double jeopardy purposes. The Ursery Court held that such linkage was insufficient to render the statute punitive, noting " 'Congress may impose both a criminal and a civil sanction in respect to the same act or omission.’ ” Ursery, 116 S. Ct. at 2149. In Ursery, the Supreme Court applied the two-part inquiry contained in 89 Firearms⁶: (1) Did Congress intend the forfeiture statute to be criminal or civil? (2) Are the proceedings so punitive as to persuade the Court that the forfeiture proceedings may not be viewed as civil in nature despite congressional intent? See Ursery, 116 S. Ct. at 2147.

Historically, we too have adopted an analogous two-part test for defining "punishment” for double jeopardy purposes. See Beckett v. Department of Soc. & Health Servs., 87 Wn.2d 184, 188-90, 550 P.2d 529 (1976), overruled on other grounds by Dunner v. McLaughlin, 100 Wn.2d 832, 676 P.2d 444 (1984); O’Day v. King County, 109 Wn.2d 796, 817-18, 749 P.2d 142 (1988); In re Personal Restraint of Young, 122 Wn.2d 1, 18-19, 857 P.2d 989 (1993). We have articulated the test as follows:

The categorization of a particular statute as civil or criminal is largely a matter of statutory construction. Allen v. Illinois, 478 U.S. 364, 368, 92 L. Ed. 2d 296, 106 S. Ct. 2988 (1986); United States v. Ward, 448 U.S. 242, 248, 65 L. Ed. 2d 742, 100 S. Ct. 2636 (1980). The Supreme Court has adopted a 2-part analysis:

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.

(Citations omitted.) Ward, 448 U.S. at 248-49. Thus, we look first to the language of the Statute [sic]'and the legislative history, then turn to an analysis of the purpose and effect of the statutory scheme.

Young, 122 Wn.2d at 18-19. The Clark court neglected to analyze RCW 69.50.505 explicitly in terms of the test in 89 Firearms or Young.

We recently engaged in a more comprehensive analysis of Halper, in State v. McClendon, 131 Wn.2d 853, 935 P.2d 1334 (1997), holding that the issuance of probationary drivers licenses is not punishment for double jeopardy purposes. Therein, this Court noted "[probationary licenses may carry with them the 'sting’ of punishment, but that does not necessarily characterize them as 'punishment’ for double jeopardy purposes.” Id. at 868. Citing Halper, we stated "[t]he issuance of probationary licenses is punishment only if it can be characterized as serving solely retributive or deterrent purposes. If their issuance may fairly be characterized as remedial and bears a rational relation to the government’s remedial purpose, then it is not punishment for double jeopardy purposes.” Id. at 867-68.

For purposes of determining whether a statute is remedial or punitive under art. I, § 9 of our constitution, we expressly adopt the two-part test of 89 Firearms and Young. Insofar as the Clark court did not analyze RCW 69.50.505 in terms of that test, we do so now.

Regarding the first inquiry, the Ursery Court noted in rem proceedings targeting the property rather than the owner have traditionally been civil proceedings utilizing distinctly civil procedural mechanisms, indicating Congress’s intent that the proceedings be civil in nature. Ursery, 116 S. Ct. at 2147-48. Similarly, the plain language of RCW 69.50.505 and its legislative history attest to its civil nature. The statute frequently references superior court civil rules. RCW 69.50.505(c), (e), (m). The Legislature also specifically noted the civil forfeiture statute is a civil process. See Final Legislative Report, 2SHB 1793 (1989) at 119 ("Seizure and forfeiture are civil processes and are independent of the outcome of any criminal charges that might be brought against the owner of the property.”).

With respect to the second inquiry, the United States Supreme Court required the "clearest proof’ that the forfeiture proceedings are so punitive in form and eifect as to render them criminal despite Congress’s intent to the contrary, Ursery, 116 S. Ct. at 2148, and held this burden was not met where a forfeiture statute "while perhaps having certain punitive aspects, serve[s] important nonpunitive goals[,]” such as encouraging property owners to take care in managing their property and ensuring they will not permit that property to be used for illegal purposes. Id. at 2148.⁷ In Young, we applied similar reasoning, noting:

[T]he determinative factors for resolving a double jeopardy claim are whether [the sanction] has a rational connection to some purpose other than retribution or deterrence, and whether the sanction appears excessive in relation to the alternative purpose.

O’Day v. King Cy., 109 Wn.2d 796, 817, 749 P.2d 142 (1988) (citing [Kennedy v.] Mendoza-Martinez, 372 U.S. [144,] 168-69 [, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963)]). Absent any indication that a criminal purpose was intended, or actually served by the statute, the stated civil goals of the Legislature are controlling. See Mendoza-Martinez, 372 U.S. at 168-69.

Young, 122 Wn.2d at 23. Thus, if RCW 69.50.505 has a rational connection to some nonretributive purpose, the Legislature’s designation of the statute as civil (or remedial) must stand.

The Ursery Court noted many considerations support its conclusion that civil forfeiture is not punitive: the long history of in rem forfeiture as civil proceedings; the lack of scienter needed under the statute in question as property may be forfeited without showing a connection to a particular person; and the "deterrent” purpose of the statute serving civil as well as criminal goals. See Ursery, 116 S. Ct. at 2149. Likewise, RCW 69.50.505 also serves nonpunitive goals. The statute is designed to reimburse government for its prosecutorial costs.⁸ This purpose is confirmed by the distributive scheme for funds obtained by forfeiture. See, e.g., RCW 69.50.505(f)-(i). Moreover, the statute is also intended to remove property involved in drug activities. Property may be forfeited under the statute without showing a connection to a particular person. RCW 69.50-.505(a)(4) requires only that the property was "used or intended for use ... to facilitate” a violation.

Catlett has provided no viable reason why we should declare erroneous the legislative determination that RCW 69.50.505 is remedial. Nor has she provided the "clearest proof’ required under the two-part test to overcome the presumption that in rem forfeiture proceedings designated as "civil” by the Legislature are not subject to double jeopardy. See Ursery, 116 S. Ct at 2148 n.3. Like the federal statute examined in Ursery, RCW 69.50.505 is not so punitive as to constitute criminal punishment for purposes of double jeopardy analysis.⁹

CONCLUSION

Catlett’s case has been overtaken by events. The case law that won the day for Catlett below has been superseded by more recent federal precedent. Under Ursery, the Fifth Amendment does not bar a subsequent criminal prosecution for a drug offense where property used to facilitate that drug offense has been forfeited via a prior civil forfeiture proceeding. Under Wash. Const, art. I, § 9, we hold that proceedings under RCW 69.50.505 are not punishment to which jeopardy attaches. The Court of Appeals is reversed and the case remanded to the trial court for further proceedings.

Durham, C.J., and Dolliver, Smith, and Guy, JJ., concur.

1 Catlett was also charged on April 29, 1994 with separate counts of delivery and possession relating to events occurring on November 18-19, 1993. Catlett has not appealed these separate charges and they are not at issue here. See State v. Catlett, 81 Wn. App. 791, 793 n.1, 916 P.2d 975 (1996).

2 See Philip A. Talmadge, Preface: Double Jeopardy: The Civil Forfeiture Debate, 19 Seattle U. L. Rev. 209-88 (1996); see also cases decided prior to Ursery, including, e.g., Ninth Circuit decisions in United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir. 1994), rev’d by United States v. Ursery, 518 U.S. 267, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996); United States v. One 1978 Piper Cherokee Aircraft, 37 F.3d 489, opinion withdrawn and superseded on reh’g (in light of Ursery), 91 F.3d 1204 (9th Cir. 1994); and federal supplement decisions in Oakes v. United States, 872 F. Supp. 817 (E.D. Wash. 1994), order rev’d by unpublished opinion (in light of Ursery), 92 F.3d 1195 (9th Cir. 1996); United States v. McCaslin, 863 F. Supp. 1299 (W.D. Wash. 1994).

3 Since being decided on June 24, 1996, Ursery has been relied upon by the Courts of Appeals in holding that civil forfeiture does not bar a subsequent criminal proceeding on double jeopardy grounds. See, e.g., State v. Lynch, 84 Wn. App. 467, 929 P.2d 460 (1996); Tellevik v. 6717 100th Street S.W., 83 Wn. App. 366, 370-71, 921 P.2d 1088 (1996).

4 The dissent in Cole also approved this analytical approach: "double jeopardy analysis in [civil forfeiture] cases involves three inquiries: (a) whether the forfeitures at issue constituted 'punishment’; and, if so, (b) whether the forfeiture and criminal proceedings against each Petitioner constituted separate 'proceedings’ (c) arising from the 'same offense.’ ” Cole, 128 Wn.2d at 294 (Johnson, J., dissenting) (citations omitted).

5 Likewise, the Court of Appeals cases cited by Catlett do not advance her argument as none of them address double jeopardy issues. See Kahler v. Kernes, 42 Wn. App. 303, 308, 711 P.2d 1043 (1985), applying the rule of lenity because "[RCW 69.50.505(a)(4)] is a penal statute, although civil in form,” citing, One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S. Ct. 1246, 14 L. Ed. 2d 170 (1965), which held the Fourth Amendment (exclusionary rule) applies to state forfeiture proceedings; and quotes Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 28 L. Ed. 746 (1886), which characterizes civil forfeiture as "criminal proceedings for all the purposes of the Fourth Amendment.” None of these cases addresses double jeopardy issues.

See also Irwin v. Mount, 47 Wn. App. 749, 751, 737 P.2d 277, review denied, 108 Wn.2d 1031 (1987), which does not address double jeopardy issues, but cites to Kahler and Deeter for the proposition that RCW 69.50.505 is a penal statute although civil in form. See also Franklin v. Klundt, 50 Wn. App. 10, 12, 746 P.2d 1228 (1987), which does not address double jeopardy issues, but cites to Deeter and Plymouth Sedan for the proposition that "[a] forfeiture proceeding under RCW 69.50.505 is quasi-criminal in nature and the Fourth Amendment exclusionary rule applies, precluding the use of illegally obtained evidence to sustain the forfeiture.” See also Kinder v. Mangan, 57 Wn. App. 840, 844, 790 P.2d 652, review denied, 802 P.2d 127 (1990), a Sixth Amendment (compulsory process) case, which cites to Deeter, noting:

Generally, the right to compulsory process is a right granted to the accused in criminal prosecutions only. The proceeding here, though quasi-criminal in nature because of its punitive aspects, is not a criminal prosecution. . . . Therefore, the full panoply of constitutional rights does not attach.

Kinder, 57 Wn. App. at 844 (citations omitted). The Kinder court also cites 89 Firearms for the proposition that "civil forfeiture [is] not deemed criminal action for double jeopardy purposes.” Id. See also City of Lynnwood v. $128 Cash, 61 Wn. App. 505, 512-13, 810 P.2d 1377 (1991), which does not address double jeopardy issues, but references Deeter and Kinder for the view that "[although forfeiture proceedings are not criminal prosecutions, they are still quasi-criminal since their purpose is to penalize individuals who are illegally involved with controlled substances,” and holding that "the seizure and forfeiture provisions of the UCSA are 'criminal laws’ for purposes of RCW 10.93.070” (i.e. regarding the powers of peace officers). Thus, the Lynnwood police have power to institute forfeiture actions. None of these cases addresses civil forfeitures as punishment for double jeopardy purposes.

6 United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361, 104 S. Ct. 1099, 79 L. Ed. 2d 361 (1984) ("The time has come to clarify that neither collateral estoppel nor double jeopardy bars a civil, remedial forfeiture proceeding initiated following an acquittal on related criminal charges.”).

7 See also Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997), finding controlling the manifest intent of the Kansas Legislature to create a civil commitment scheme in the Kansas Sexually Violent Predator Act. It could not be shown by the "clearest proof’ that the Kansas scheme was so punitive in purpose or effect as to negate legislative intention to deem it civil. Hendricks, 117 S. Ct. at 2082. The Court found the involuntary commitment pursuant to the Act was civil in nature and thus not punishment, even though detention was allowed after service of a prison term. The statute did not violate the double jeopardy clause.

8 See Laws op 1989, ch. 271, § 211 at 1298 which states:

The legislature finds that: Drug offenses and crimes resulting from illegal drug use are destructive to society; the nature of drug trafiicking results in many property crimes and crimes of violence; state and local governmental agencies incur immense expenses in the investigation, prosecution, adjudication, incarceration, and treatment of drug-related offenders and the compensation of their victims; drug-related offenses are difficult to eradicate because of the profits derived from the criminal activities, which can be invested in legitimate assets and later used for further criminal activities; and the forfeiture of real assets where a substantial nexus exists between the commercial production or sale of the substances and the real property will provide a significant deterrent to crime by removing the profit incentive of drug trafficking, and will provide a revenue source that will partially defray the large costs incurred by government as a result of these crimes. The legislature recognizes that seizure of real property is a very powerful tool and should not be applied in cases in which a manifest injustice would occur as a result of forfeiture of an innocent spouse’s community property interest.

9 We do note, however, that the statute must still be analyzed in accordance with Eighth Amendment principles. To the extent civil forfeiture constitutes an excessive fine, it will be invalid. Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993).