We granted certiorari to consider whether a forfeiture proceeding under OCGA 16-13-49
constitutes punishment for the purpose of double jeopardy analysis under the Federal Constitution. 1
We conclude that it does not.
Civil forfeitures generally do not constitute punishment under the Double Jeopardy Clause. The federal test to be applied in assessing a forfeiture statute is two-fold. The first inquiry is whether the proceeding is intended to be criminal or civil. The second is whether, by clearest proof, the proceeding is so punitive in fact that it may not legitimately be viewed as civil in nature despite the intent that it be so. United States v. Ursery, 518 U. S. ---- (116 SC 2135, 135 LE2d 549) (1996). It is plain that a forfeiture proceeding under OCGA 16-13-49
is intended to be a civil action. See OCGA 16-13-49
(b) (3), (o) (3), (p) (4), (v), (w); see also Thorp v. State of Ga., 264 Ga. 712 (450 SE2d 416) (1994)
; State of Ga. v. Alford, 264 Ga. 243
, 244 (2) (444 SE2d 76
) (1994). While it is true that the statute has punitive aspects, its purposes are remedial by its express terms. OCGA 16-13-49
(z). Property subject to forfeiture under the Code section is that which is declared to be contraband, including property or its proceeds used or intended for use to facilitate violation of the Georgia Controlled Substances Act, monies found in close proximity to such property, and weapons used to facilitate felony violations of narcotics laws. OCGA 16-13-49
(d). The statute serves the nonpunitive goals, among others, of rendering illegal behavior unprofitable, ensuring that persons do not profit from their illegal acts, and removing from circulation forbidden merchandise and firearms unlawfully used or intended for illegal use. Ursery, 518 U. S. at ---- (slip op. at 12). The forfeiture proceeding under the statute is legitimately a civil sanction and does not constitute punishment for purposes of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. 2
SEARS, Justice, concurring.
The only question raised by this appeal is whether the in rem civil forfeiture action constituted "punishment" for purposes of the Double Jeopardy Clause of the United States Constitution. I am bound to follow the principles set forth in United States v. Ursery, 3
in deciding the issue, and I agree with the majority that Ursery controls this issue adversely to Murphy. I write to emphasize that this case raises no issue regarding the Double Jeopardy Clause of our State Constitution. 4
Daniel J. Porter, District Attorney, Thomas W. Hayes, Assistant District Attorney, Gary D. Bergman, Aimee R. Maxwell, Davis, Zipperman, Kirschenbaum & Lotito, Nicholas A. Lotito, Garland, Samuel & Loeb, Donald F. Samuel, for appellee.