In re P.S. , 175 Ill. 2d 79 ( 1997 )

NOTICE: Under Supreme Court Rule 367 a party has 21 days after

the filing of the opinion to request a rehearing. Also, opinions

are subject to modification, correction or withdrawal at anytime

prior to issuance of the mandate by the Clerk of the Court.

Therefore, because the following slip opinion is being made

available prior to the Court's final action in this matter, it

cannot be considered the final decision of the Court. The

official copy of the following opinion will be published by the

Supreme Court's Reporter of Decisions in the Official Reports

advance sheets following final action by the Court.

       Docket Nos. 78910, 78944 cons.--Agenda 6--September 1996.

       In re P.S., a Minor (The People of the State of Illinois,

      Appellant, v. P.S., Appellee).--THE PEOPLE OF THE STATE OF

   ILLINOIS, Appellant, v. JOHN KIMERY, Appellee.--THE PEOPLE OF THE

      STATE OF ILLINOIS, Appellant, v. RODERICK TURNER, Appellee.

                    Opinion filed January 30, 1997.

         JUSTICE MILLER delivered the opinion of the court:

         One of the actions consolidated here, that involving

defendant John Kimery, is before us on remand from the United

States Supreme Court for further consideration in light of the

Court's decision in United States v. Ursery, 518 U.S. ___, 135 L.

Ed. 2d 549, 116 S. Ct. 2135 (1996).

         The facts pertinent to this appeal are set forth in our

previous opinion in this case, In re P.S., 169 Ill. 2d 260 (1996),

and require only brief restatement here. In cause No. 78910, Kimery

was arrested on October 6, 1991, following an incident in which he

was observed making a purchase of illicit drugs. On that occasion

an Aurora police officer who was conducting surveillance saw Kimery

stop his car and speak to two men, who then entered a nearby

building. One of the men returned to Kimery's car several minutes

later and got into the vehicle. The officer conducting the

surveillance then saw the man hand Kimery a small white bag and

receive money from Kimery in return. Police arrested the occupants

of the vehicle and recovered a plastic bag from Kimery; the

contents of the bag were later tested and were found to contain

cocaine. Kimery was charged in the circuit court of Kane County

with one count of unlawful possession of a controlled substance in

violation of section 402(c) of the Illinois Controlled Substances

Act (Ill. Rev. Stat. 1991, ch. 56½, par. 1402(c)), a Class 4

felony.

         While the criminal charge was pending, the State filed an

in rem forfeiture action against Kimery's vehicle, a 1982 Ford

Mustang, pursuant to section 505(a)(3) of the Illinois Controlled

Substances Act (Ill. Rev. Stat. 1991, ch. 56½, par. 1505(a)(3)).

The forfeiture complaint alleged the occurrence of the illegal drug

sale described above. The complaint further alleged that Kimery was

the registered owner of the vehicle and that the vehicle was

subject to forfeiture because it had been used to facilitate the

sale, receipt, possession, and concealment of a controlled

substance.

         Kimery entered an appearance in the forfeiture action as

owner-claimant of the vehicle and requested the return of the

automobile. Kimery acknowledged that he was present in the vehicle

just before its seizure by authorities and admitted that a plastic

bag was obtained from him, but he denied any knowledge of the

contents of the bag and denied that the vehicle had been used to

facilitate the alleged drug transaction. After a bench trial on May

26, 1992, the judge ordered Kimery's automobile forfeited to the

State. The appellate court later affirmed the forfeiture order.

People v. One 1982 Maroon Ford Mustang, 258 Ill. App. 3d 127

(1994).

         On August 13, 1992, after entry of the forfeiture

judgment, Kimery moved to dismiss the pending criminal charge on

grounds of double jeopardy. Kimery argued that forfeiture of the

automobile constituted punishment for purposes of double jeopardy

under the United States and Illinois Constitutions and that any

further prosecution for the conduct that resulted in the forfeiture

was therefore barred. The trial court took the motion under

advisement, awaiting this court's opinion in People v. 1988 Mercury

Cougar, 154 Ill. 2d 27 (1992). Following our decision in that case,

which found no double jeopardy bar under either the federal

constitution or the state constitution to successive forfeiture

actions and criminal prosecutions, Kimery pleaded guilty to the

charge on April 12, 1993. Before Kimery could be sentenced,

however, he moved to withdraw his guilty plea and requested

dismissal of the charge, renewing his contention that successive

forfeiture actions and criminal prosecutions for the same conduct

are barred by double jeopardy. In support of the motion Kimery

cited the United States Supreme Court's then-recent decision in

Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S.

Ct. 2801 (1993), which held that a forfeiture may constitute

punishment under the excessive fines clause of the eighth

amendment. Following a hearing, the trial judge denied Kimery's

motion and sentenced him to one year's imprisonment. The judge

stayed the sentence, however, pending the resolution of Kimery's

interlocutory appeal of the double jeopardy question (see 145 Ill.

2d R. 604(f)).

         In an unpublished order the appellate court vacated the

circuit court judgment, concluding that Kimery could not be

prosecuted on the drug charge following the forfeiture of his

automobile. The appellate court believed that forfeiture of the

vehicle must be considered punishment and that a later criminal

prosecution for the same conduct was therefore precluded by double

jeopardy.

         On the State's appeal, we affirmed the appellate court's

disposition of Kimery's case. In re P.S., 169 Ill. 2d 260 (1996).

After reviewing the Supreme Court's decisions in Department of

Revenue v. Kurth Ranch, 511 U.S. 767, 128 L. Ed. 2d 767, 114 S. Ct.

1937 (1994), Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d

488, 113 S. Ct. 2801 (1993), and United States v. Halper, 490 U.S.

435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989), we concluded that

the prior forfeiture proceeding constituted punishment for purposes

of the double jeopardy clause of the fifth amendment and that a

subsequent prosecution of Kimery for the same underlying conduct

was therefore barred. Our decision in 1988 Mercury Cougar preceded

the Supreme Court's rulings in Kurth Ranch and Austin, and we

believed that the later decisions necessitated a result different

from that reached in our earlier case. With regard to Kimery, we

therefore held that the subsequent criminal prosecution was barred

by double jeopardy. We reached a different result in the two other

cases consolidated in P.S.; we found that the criminal charges in

those prosecutions were for offenses distinct from the forfeiture

actions and thus did not violate double jeopardy.

         The State filed a petition for a writ of certiorari in

Kimery's case. The Supreme Court granted the petition, vacated the

judgment, and remanded the cause to us for further consideration in

light of the Court's ruling in United States v. Ursery, 518 U.S.

___, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996), which had been

decided while the petition for certiorari was pending. Illinois v.

Kimery, ___ U.S. ___, 135 L. Ed. 2d 1092, 116 S. Ct. 2577 (1996).

As we explain below, we now conclude that the forfeiture action at

issue here does not constitute punishment for purposes of double

jeopardy and therefore does not preclude, on double jeopardy

grounds, Kimery's subsequent prosecution for the related drug

offense.

         The double jeopardy clause of the fifth amendment, made

applicable to the states by the fourteenth amendment (Benton v.

Maryland, 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969)),

protects against three perils: a second prosecution after

acquittal, a second prosecution after conviction, and multiple

punishments for the same offense (North Carolina v. Pearce, 395

U.S. 711, 717, 23 L. Ed. 2d 656, 664-65, 89 S. Ct. 2072, 2076

(1969)). At issue in this case is the third safeguard, that

involving multiple punishments for the same offense. P.S., 169 Ill.

2d at 272.

         In Ursery, the Supreme Court reaffirmed the view that a

civil in rem forfeiture action is not punishment for purposes of

the double jeopardy clause and therefore may be pursued

independently of a criminal action based on the same underlying

misconduct. The Court noted that it had consistently held that the

double jeopardy clause does not apply to such forfeitures because

they do not impose punishment. United States v. One Assortment of

89 Firearms, 465 U.S. 354, 79 L. Ed. 2d 361, 104 S. Ct. 1099

(1984); One Lot Emerald Cut Stones v. United States, 409 U.S. 232,

34 L. Ed. 2d 438, 93 S. Ct. 489 (1972) (per curiam); Various Items

of Personal Property v. United States, 282 U.S. 577, 75 L. Ed. 558,

51 S. Ct. 282 (1931). The Court did not believe that a different

result was compelled by its decisions in Department of Revenue v.

Kurth Ranch, 511 U.S. 767, 128 L. Ed. 2d 767, 114 S. Ct. 1937

(1994), Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488,

113 S. Ct. 2801 (1993), and United States v. Halper, 490 U.S. 435,

104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989), cases on which this and

other courts had relied in finding a double jeopardy problem in

successive forfeiture actions and criminal prosecutions. The Ursery

Court noted that Halper and Kurth Ranch addressed double jeopardy

questions involving civil penalties assessed against an individual

(Halper) and a punitive state tax imposed on illicit drugs (Kurth

Ranch); Austin considered the application of the eighth amendment's

excessive fine clause to civil forfeitures. The Ursery court

explained that nothing in those three decisions "purported to

replace our traditional understanding that civil forfeiture does

not constitute punishment for the purpose of the Double Jeopardy

Clause." Ursery, 518 U.S. at ___, 135 L. Ed. 2d at 567-68, 116 S.

Ct. at 2147.

         In determining whether the particular forfeiture actions

involved in Ursery constituted punishment, the Court employed a

two-part inquiry derived from 89 Firearms, which rejected a similar

double jeopardy argument. First, the Court in Ursery asked whether

Congress intended for the federal forfeitures at issue in those

cases to be considered criminal or civil in nature. Next, the Court

asked whether the forfeiture actions are so punitive in fact that

they must be considered criminal, regardless of congressional

intent. Ursery, 518 U.S. at ___, 135 L. Ed. 2d at 568, 116 S. Ct.

at 2147. After analyzing the statutory provisions at issue in those

consolidated cases, the Court concluded that the forfeitures were

civil in nature.

         We must decide here whether the forfeiture provided by

Illinois statute is civil or criminal in nature. This is primarily

a question of statutory construction. Emerald Cut Stones, 409 U.S.

at 237, 34 L. Ed. 2d at 443, 93 S. Ct. at 493. Applying to the

Illinois provisions the same two-part inquiry used in Ursery and 89

Firearms, we conclude that the forfeiture at issue in Kimery's case

constitutes a remedial civil sanction and does not bar a subsequent

criminal prosecution.

         We must first determine whether the legislature intended

the forfeiture that preceded the instant prosecution to be civil or

criminal in character. The property at issue in Kimery's case was

subject to forfeiture under section 505(a)(3) of the Illinois

Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 56½, par.

1505(a)(3)). Forfeiture proceedings involving property seized

pursuant to that statute are governed by the Drug Asset Forfeiture

Procedure Act (Forfeiture Act) (Ill. Rev. Stat. 1991, ch. 56½,

pars. 1671 through 1684). See Ill. Rev. Stat. 1991, ch. 56½, par.

1505(c); Ill. Rev. Stat. 1991, ch. 56½, par. 1673. An examination

of the provisions of the Forfeiture Act reveals that the General

Assembly, in enacting the statute, intended to create a remedial

civil sanction. Many of the civil features identified in the

federal forfeiture statutes at issue in Ursery and 89 Firearms can

also be found in the Illinois act. Turning to the first part of our

inquiry, we believe that it is clear that the legislature intended

actions brought pursuant to the Forfeiture Act to be remedial civil

sanctions. As an initial matter, we note that the legislature has

expressly stated that the proceedings under the Forfeiture Act are

civil (Ill. Rev. Stat. 1991, ch. 56½, par. 1672) and are designed

to serve a remedial purpose (Ill. Rev. Stat. 1991, ch. 56½, par.

1683).

         Various procedural mechanisms provided by the Forfeiture

Act further demonstrate the civil nature of those proceedings. The

action is in rem and not in personam. Ill. Rev. Stat. 1991, ch.

56½, pars. 1674, 1679. Furthermore, section 6 of the Forfeiture Act

provides a summary, nonjudicial proceeding for certain categories

of property if no claimant appears. Ill. Rev. Stat. 1991, ch. 56½,

par. 1676. The evidentiary burdens assigned by the Forfeiture Act

also indicate that judicial proceedings under the statute are civil

rather than criminal in character. For example, once the State

establishes the existence of probable cause for forfeiture of the

property, "the claimant has the burden of showing by a

preponderance of the evidence that the claimant's interest in the

property is not subject to forfeiture." Ill. Rev. Stat. 1991, ch.

56½, par. 1679(G). In addition, a claimant urging that the property

is exempt from forfeiture has the burden of establishing that

defense by a preponderance of the evidence. Ill. Rev. Stat. 1991,

ch. 56½, par. 1678. These provisions demonstrate that the

legislature intended to create a civil remedial sanction in the

Forfeiture Act. See Ursery, 518 U.S. at ___, 135 L. Ed. 2d at 568-

69, 116 S. Ct. at 2147; 89 Firearms, 465 U.S. at 363-64, 79 L. Ed.

2d at 368-70, 104 S. Ct. at 1105-06.

         Turning now to the second part of the test applied by the

Supreme Court in Ursery and 89 Firearms, we consider whether

proceedings brought under the Forfeiture Act "are so punitive in

form and effect as to render them criminal" notwithstanding the

legislature's intent to make them civil. We do not believe that the

sanction is so punitive that it overcomes the civil attributes we

have listed above. Proceedings under the Forfeiture Act serve

important nonpunitive goals. As the Supreme Court noted in Ursery,

requiring the forfeiture of property used to facilitate a drug

violation encourages owners "to take care in managing their

property and ensures that they will not permit that property to be

used for illegal purposes." Ursery, 518 U.S. at ___, 135 L. Ed. 2d

at 569, 116 S. Ct. at 2148. Moreover, as Ursery observes, in rem

civil forfeiture has not traditionally been viewed as punishment,

as that term is used in the double jeopardy context. A further

indication that the proceeding is not criminal is found in the

absence of a requirement of proof of scienter to sustain a

forfeiture order; property may be subject to forfeiture even if no

one appears to claim it (Ill. Rev. Stat. 1991, ch. 56½, par. 1676).

Ursery, 518 U.S. at ___, 135 L. Ed. 2d at 570, 116 S. Ct. at 2149.

         The Supreme Court's decision in Ursery also suggests that

several potentially punitive aspects of the Forfeiture Act, as

noted in our prior opinion in this case (P.S., 169 Ill. 2d at 283),

are not sufficient to overcome the essentially civil nature of the

sanction. Thus, the statutory provision of an "innocent owner"

defense to forfeiture actions (Ill. Rev. Stat. 1991, ch. 56½, par.

1678) is not fatal to the conclusion that forfeiture is a remedial

civil sanction. The avowedly deterrent aim of the statutory scheme

(Ill. Rev. Stat. 1991, ch. 56½, par. 1672) is also consistent with

its civil nature. Finally, that the Forfeiture Act does not come

into play until a criminal offense occurs does not defeat its civil

purpose, for the legislature may impose both civil and criminal

sanctions with respect to the same misconduct. Ursery, 518 U.S. at

___, 135 L. Ed. 2d at 570-71, 116 S. Ct. at 2149; see also 89

Firearms, 465 U.S. at 365-66, 79 L. Ed. 2d at 370-71, 104 S. Ct. at

1106-07.

         For the reasons stated, we believe that the legislature

intended the forfeiture involved in Kimery's case to be merely a

civil sanction, and we therefore hold that the subsequent criminal

prosecution for the same underlying conduct does not implicate

double jeopardy concerns. As we recognized in our earlier opinion

in this case (P.S., 169 Ill. 2d at 282), the Forfeiture Act is

patterned after the federal forfeiture provisions found in 21

U.S.C. §881 (Ill. Rev. Stat. 1991, ch. 56½, par. 1672), and the

General Assembly has stated that provisions of the Illinois statute

should be interpreted in the same manner as are similar provisions

of the federal statute. Ill. Rev. Stat. 1991, ch. 56½, par. 1672.

One of the forfeiture statutes at issue in Ursery was the federal

counterpart to the Illinois act, so it is appropriate that we reach

the same result here, in light of the legislature's intent that the

Forfeiture Act receive the same construction. We thus conclude that

the prior forfeiture of Kimery's automobile, used in the drug

transaction that forms the basis for the criminal charge, does not

preclude on double jeopardy grounds a subsequent prosecution of

Kimery for that offense.

         As a final matter, we turn briefly to the question

whether the same result must obtain under the double jeopardy

clause found in article I, section 10, of the Illinois Constitution

(Ill. Const. 1970, art. I, §10). As our earlier opinion in this

case noted, although Kimery and the other parties in P.S. invoked

the double jeopardy provisions of both the United States

Constitution and the Illinois Constitution in the circuit court

proceedings, they did not argue that the provision of the state

constitution granted greater protection or required a different

result. P.S., 169 Ill. 2d at 271. Accordingly, the issue has been

waived.

         Moreover, we have previously interpreted our own state

constitution's double jeopardy clause in a manner that is

consistent with the United States Supreme Court's interpretation of

the double jeopardy clause of the fifth amendment. See People v.

Levin, 157 Ill. 2d 138, 160 (1993). Notably, in People v. 1988

Mercury Cougar, 154 Ill. 2d 27, 39 (1992), this court found no

double jeopardy bar under either the United States Constitution or

the Illinois Constitution to a forfeiture proceeding instituted

after the defendant's conviction for conduct giving rise to the

forfeiture. Nothing has occurred in the few years since that

decision that would alter our analysis of the state constitutional

guarantee, and thus we do not believe that the double jeopardy

provision of the Illinois Constitution would warrant a different

result in this case.

         Brief comment should be made of the analysis proposed in

one of the dissenting opinions. That opinion notes that, by the

time of the 1970 state constitutional convention, most of the

provisions of the Bill of Rights of the United States Constitution

had been made applicable to the states. From that observation the

dissenting opinion infers that the drafters of the Illinois

Constitution must have intended the provisions of the state Bill of

Rights to supplement the United States Constitution and to stand

"as an additional protection" against governmental overreaching.

Slip op. at 11 (Heiple, C.J., dissenting). The dissent apparently

believes that the mere inclusion of a particular guarantee in the

state Bill of Rights, without more, demonstrates that the provision

means something different from the corresponding provision of the

Bill of Rights of the United States Constitution. This approach

leads to the conclusion that similar provisions of the federal and

state constitutions mean different things, even though they are

expressed in the same terms. Under this view, the Illinois drafters

did not adopt well-established meanings when they used familiar

words and phrases but instead always meant something different.

Notably, the dissenting opinion offers no citation to the

proceedings of the 1970 constitutional convention in support of

this novel theory.

         In any event, this case is not an appropriate vehicle for

a reassessment of the lockstep doctrine, for consideration of that

question is unnecessary to our resolution of the present appeal. In

People v. 1988 Mercury Cougar, 154 Ill. 2d 27 (1992), this court

rejected double jeopardy challenges, under both the federal and

state constitutions, to the same legislation at issue here. More

recently, in People v. Levin, 157 Ill. 2d 138 (1993), this court

held that the double jeopardy clause of our state constitution is

to be construed in the same manner as the double jeopardy clause of

the federal constitution. As we have already noted, the defendant

did not previously argue in the circuit court or before this court

that the double jeopardy provision of the state constitution should

be interpreted more expansively than its federal counterpart.

         Given the precedents of 1988 Mercury Cougar and Levin,

this case is a curious forum in which to attempt to rekindle the

debate over the interpretation of similar state and federal

constitutional provisions. At the time of our original

consideration of this appeal, we would have adhered to our earlier

ruling in 1988 Mercury Cougar if we had not then believed that

later decisions by the United States Supreme Court compelled a

different result. With the meaning of those decisions clarified, we

may now reinstate the holding of 1988 Mercury Cougar.

         For the reasons stated, the judgment of the appellate

court is reversed, and the cause is remanded to the circuit court

of Kane County for further proceedings consistent with this

opinion.

Reversed and remanded.

         JUSTICE HARRISON took no part in the consideration or

decision of this case.

         CHIEF JUSTICE HEIPLE, dissenting:

         I agree with the majority's conclusion that the fifth

amendment of the United States Constitution, as interpreted by the

United States Supreme Court, does not prohibit the prosecution of

defendant Kimery for unlawful possession of a controlled substance

following the forfeiture of his automobile to the State. Because I

believe, however, that this determination does not end the inquiry

we must conduct as Illinois' highest court, I respectfully dissent.

         Article I, section 10, of the Illinois Constitution

provides that "[n]o person shall *** be twice put in jeopardy for

the same offense." Ill. Const. 1970, art. I, §10. The majority

holds that this provision should be interpreted "in a manner that

is consistent with the United States Supreme Court's interpretation

of the double jeopardy clause of the fifth amendment." Slip op. at

8. I do not believe there is any persuasive justification for this

holding. No one would suggest that the United States Supreme Court

is bound to interpret provisions of the federal Constitution in a

manner that is consistent with this court's interpretation of

similar provisions of the Illinois Constitution. As I have stated

previously, I believe the converse of such a suggestion to be

equally insupportable. See People v. Mitchell, 165 Ill. 2d 211,

233-35 (1995) (Heiple, J., dissenting).

         The Illinois Bill of Rights, contained in article I of

the Illinois Constitution, was enacted by citizens of this state to

protect themselves against unwarranted deprivation of their lives,

liberty, and property by the state's government. The most recent

version of the state constitution was ratified by the people in

1970. At that time, nearly all of the provisions of the United

States Constitution's Bill of Rights had been construed by the

United States Supreme Court to constrain state governments as well

as the federal government. The Illinois Bill of Rights must

therefore have been intended to serve as an additional protection

against abuses of power by state government, supplemental to the

safeguards provided by the United States Constitution. In light of

this fact, I consider it a dereliction of our duties as Illinois

judges to delegate the function of interpreting our state

constitution to the United States Supreme Court in the manner

dictated by the majority. Rather, I believe that our oaths of

office require "that the seven justices of this court *** bring to

bear on every important constitutional issue their independent

resources of wisdom, judgment, and experience." People ex rel.

Daley v. Joyce, 126 Ill. 2d 209, 226 (1988) (Clark, J.,

concurring).

         Applying this interpretive approach, I would hold that

prosecuting defendant for unlawful possession of a controlled

substance following the forfeiture of the automobile which was

allegedly used to facilitate that offense violates article I,

section 10, of the Illinois Constitution. Initially, I note that I

disagree with the majority that defendant has waived this issue.

Defendant contended, both in the circuit court and on appeal, that

his prosecution violated the state constitution. Moreover, he was

not afforded an opportunity to rebrief this argument upon remand of

this case from the United States Supreme Court. I believe we

therefore have a responsibility to address the issue.

         The plain wording of section 10 prohibits putting a

person in jeopardy twice for the same offense. The determinative

question is thus whether the forfeiture of defendant's automobile

to the state based on the vehicle's alleged use in facilitating a

crime constitutes putting defendant in jeopardy for the commission

of that crime. If it does, the state is barred from conducting a

separate proceeding that also puts defendant in jeopardy for that

crime.

         I believe that the forfeiture which the state effected

here clearly put defendant in jeopardy for an offense that was the

same as that for which he was later prosecuted. The Illinois

Constitution prohibits the undue deprivation not only of a person's

life and liberty, but also of his property. Ill. Const. 1970, art.

I, §2. A proceeding brought to deprive a person of property based

on his commission of a crime thus puts him "in jeopardy" for that

crime just as surely as does a proceeding to deprive him of

liberty. Likewise, it is clear that the two instances of jeopardy

here were directed at the "same offense," because defendant was

charged with committing only one illegal act, namely, unlawful

possession of a controlled substance. But for the commission of

this offense, there was no basis for the forfeiture, since

" `[t]here is nothing even remotely criminal in possessing an

automobile.' " Austin v. United States, 509 U.S. 602, 621, 125 L.

Ed. 2d 488, 505, 113 S. Ct. 2801, 2811 (1993), quoting One 1958

Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699, 14 L. Ed. 2d

170, 174, 85 S. Ct. 1246, 1250 (1965).

         I am not persuaded by the majority's arguments that a

forfeiture such as this does not place a defendant in jeopardy for

commission of an offense. First, I consider it irrelevant that the

legislature may have intended the forfeiture to be civil rather

than criminal in character. See slip op. at 5-6. If an action by

the government violates a constitutional prohibition, no amount of

evidence manifesting the legislature's purportedly benign intent in

authorizing that action can render the action constitutional. I

consider it similarly irrelevant, in assessing the

constitutionality of a statute under our state constitution, that

the legislature has expressed an intention that statutory

construction of the provision comport with the interpretation of

similar statutes by the federal courts. See slip op. at 7-8.

         I am also not persuaded by the majority's assertion that

"important nonpunitive goals" of the instant forfeiture immunize it

from constitutional challenge under double jeopardy principles. See

slip op. at 6. In our prior opinion in this case, we held that a

forfeiture of property violates double jeopardy if it serves even

in part to punish the defendant. In re P.S., 169 Ill. 2d 260, 282

(1996). We then proceeded to hold that various punitive aspects of

the forfeiture, including its avowedly deterrent aim, its "innocent

owner" defense, and its dependence on an underlying criminal

violation, rendered it subject to double jeopardy constraints.

P.S., 169 Ill. 2d at 283. I believed this analysis to be persuasive

at the time our previous opinion was issued, and I remain persuaded

despite the United States Supreme Court's contrary interpretation

of the United States Constitution.

         In People v. 1988 Mercury Cougar, 154 Ill. 2d 27 (1992),

this court held that the forfeiture of a vehicle in a proceeding

separate from a prosecution for an underlying drug offense does not

constitute double jeopardy. That opinion, however, interpreted

federal precedent only, and did not specifically address the

applicability of article I, section 10, of the Illinois

Constitution. In People v. Levin, 157 Ill. 2d 138 (1993), we

refused to interpret article 1, section 10 more broadly than the

United States Constitution's double jeopardy provision. Levin,

however, dealt only with the application of double jeopardy

principles to noncapital sentencing procedures. Levin, 157 Ill. 2d

at 160. I believe that striking the proper balance between law

enforcement and individual liberty in the ever-escalating "war on

drugs" now requires that this court exercise its independent

judgment in declaring unconstitutional forfeitures conducted in the

manner evidenced here. See People v. Mitchell, 165 Ill. 2d 211,

233-35 (1995) (Heiple, J., dissenting).

         Because I believe that defendant has been twice put in

jeopardy for the same offense in violation of the Illinois

Constitution, I would affirm the judgment of the appellate court.

         JUSTICE NICKELS joins in this dissent.

         JUSTICE NICKELS, also dissenting:

         In light of the United States Supreme Court's decision in

United States v. Ursery, 518 U.S. ___, 135 L. Ed. 2d 549, 116 S.

Ct. 2135 (1996), I agree with the majority's conclusion that the

double jeopardy clause of the United States Constitution does not

forbid Kimery's criminal prosecution. Nonetheless, I believe Kimery

is protected from prosecution under our state constitution's double

jeopardy clause (Ill. Const. 1970, art. I, §10).

         We are bound to follow the United States Supreme Court's

decisions on matters of federal constitutional law. However, the

obligation to apply those decisions when interpreting parallel

provisions of our state constitution is one that this court has

imposed upon itself under the so-called "lockstep doctrine." Under

this doctrine, courts apply decisions of the United States Supreme

Court based on federal constitutional provisions to the

construction of comparable provisions of the state constitution

unless the language of the state constitution or debates and

committee reports of the constitutional convention show that the

framers intended a different construction. People v. DiGuida, 152

Ill. 2d 104, 118 (1992); see also People v. Mitchell, 165 Ill. 2d

211, 217 (1995). Thus, the determination whether to follow United

States Supreme Court precedent depends on a comparison of the state

and federal constitutions; the quality of the reasoning underlying

the Court's decisions plays no role in the calculus.

         I believe the time has come to reconsider the lockstep

approach in this respect. Where a provision of the state

constitution was intended to have the same meaning as a federal

constitutional provision, decisions of the United States Supreme

Court are entitled to consideration. However, examination of the

reasoning behind those decisions should not categorically be

foreclosed. I would follow the approach suggested by Justice Clark

in his concurrence in People ex rel. Daley v. Joyce, 126 Ill. 2d

209 (1988):

              "[A]s to our State constitutional provisions,

              Federal precedents are not stare decisis. They are

              persuasive and not determinative. Where their

              reasoning persuades us, we should follow them.

              Where they do not, we should not." Joyce, 126 Ill.

              2d at 225 (Clark, J., concurring).

         I dissent not because I believe the state and federal

double jeopardy provisions necessarily have different meanings.

Rather, I dissent because I am convinced that the Court's decision

in Ursery fails to give the double jeopardy clause its proper

effect, and in interpreting our state constitution, this court is

not obliged to make the same error. Ursery is premised upon the

fanciful notion that in an in rem civil forfeiture proceeding, it

is the seized property that is punished rather than the owner of

the property. See Ursery, 518 U.S. at ___, 135 L. Ed. 2d at 576,

116 S. Ct. at 2153 (Stevens, J., concurring in part & dissenting in

part). Justice Stevens' partial dissent in Ursery persuasively

demonstrates that the majority opinion in that case represents an

abrupt and unwarranted departure from the Court's prior double

jeopardy jurisprudence. See Ursery, 518 U.S at ___, 135 L. Ed. 2d

at 574-89, 116 S. Ct. at 2152-63. (Stevens, J., concurring in part

& dissenting in part). I am convinced that our original opinion in

this case, In re P.S., 169 Ill. 2d 260 (1996), properly applied the

applicable double jeopardy principles and reached the correct

result. For purposes of our state constitution, I would adhere to

the analysis in our original opinion.

         For the foregoing reasons, I respectfully dissent.

         CHIEF JUSTICE HEIPLE joins in this dissent.