Patricia A. Madrid, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM
    for State of New Mexico

Liane E. Kerr
Albuquerque, NM
    for Jesus Diaz Nunez

Reber Boult
Albuquerque, NM
    for David Michael Chavez

Phyllis H. Subin, Chief Public Defender
C. David Henderson, Assistant Appellate Defender
Susan Gibbs, Assistant Appellate Defender
Santa Fe, NM
    for Edward Vasquez and Marguerite Vasquez

D. Eric Hannum
Albuquerque, NM
    for Alex Gallegos

S. Rafe Foreman
Flower Mound, TX
    for Saul Salcido

Randi McGinn
Allegra C. Carpenter
Albuquerque, NM
    for Amicus Curiae
    New Mexico Criminal Defense Lawyer's Association

Mark L. Drebing
Albuquerque, NM
    for Amicus Curiae
    City of Albuquerque and Albuquerque Police Department

FRANCHINI, Justice.

{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 conclude that civil forfeiture under the Act is punishment for the purposes of New Mexico's protections against double jeopardy.

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(c) (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 "[s]ince 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. The police seized $299 found under his mattress. Gallegos testified that he was employed by a construction company and the money was the remainder of his paycheck which he had cashed earlier on the day of the arrest. The police testified that they asked Gallegos for proof, such as a pay stub or a letter from his employer, that the money was from a paycheck but that such proof was never provided. A forfeiture complaint was filed against the $299 on October 3, 1994. Gallegos, hoping to recover the money, sought the help of an attorney who told him that the legal fees for handling such a matter would cost far more than $299. Gallegos concluded he had no choice but to let the money go. A default judgment was entered on May 4, 1995, when Gallegos failed to appear to contest the forfeiture. See State ex rel. Albuquerque Police Dep't v. Two Hundred Ninety Nine Dollars, No. MS 94-00214 (N.M. Dist. Ct. May 4, 1995) (Default Judgment).

{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 1983 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, 89 N.M. 351, 356, 552 P.2d 787, 792 (1976) (quoting People v. Brisendine, 531 P.2d 1099, 1112 (Cal. 1975)), overruled on other grounds by State v. Rondeau, 89 N.M. 408, 412, 553 P.2d 688, 692 (1976). Moreover, "when this Court derives an interpretation of New Mexico law from a federal opinion, our decision remains the law of New Mexico even if federal doctrine should later change." State v. Breit, 1996-NMSC-067, ¶ 27, 122 N.M. 655, 930 P.2d 792. The United States Supreme Court has recognized the rights of states, under their own law, to depart from federal interpretations.See footnote 1

{14}     New Mexico interprets its State Constitution using the interstitial approach. As we explained in State v. Gomez,

        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.

1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1 (citation omitted).

{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, 1996-NMSC-067, ¶ 27. An effective federalist system depends upon a significant measure of cooperation and consistency between state and federal governments. See State v. Hunt, 450 A.2d 952, 964 (N.J. 1982) (Handler, J., concurring). This is why, under Gomez, we will not invoke the State Constitution unless a constitutional right is not protected under federal law. Gomez, 1997-NMSC-006, ¶ 19. If it is not, then under the second step of the Gomez analysis, we inquire whether our jurisprudence is distinctive, whether there are differences in our system of governance, or whether federal doctrine is wanting. We have not hesitated, when any of these three circumstances have been present, to conclude that the New Mexico Constitution provides greater protection of individual rights than does the federal constitution.See footnote 2

{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, 518 U.S. 267 (1996). In Ursery, the Supreme Court held that "[i]n rem civil forfeitures are neither 'punishment' nor criminal for purposes of the Double Jeopardy Clause." Ursery, 518 U.S. at 292. The Court thus_in the realm of controlled-substance-related forfeitures, and in essentially every other type of civil forfeiture_eliminated any double-jeopardy ground for dismissing civil forfeiture cases under the United States Constitution. Many articles and cases have meticulously summarized, criticized, and applied Ursery. We will not replicate this oft-repeated information except to describe aspects of Ursery that are distinct from established New Mexico law. We conclude, under the first part of the Gomez analysis, that, after Ursery, the federal constitution does not prevent the State from bringing, under the Controlled Substances Act, separate criminal and civil forfeiture actions for the same offense. The rights asserted by the defendants before us are not protected under federal law.

{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.See footnote 3 See Gomez, 1997-NMSC-006, ¶ 19. As we demonstrate in detail below, New Mexico has a time-honored precedent that has always regarded forfeiture as punitive. Moreover, the New Mexico and federal double-jeopardy protections are facially different and, recently, our double-jeopardy case law has departed from the federal standard. As the many New Mexico cases cited in this opinion demonstrate, were we to follow Ursery, we would be in conflict with, and would be required to dismantle, a significant body of settled law, much of which was decided independently of federal case law.See footnote 4

{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 to distinguishing federal law from New Mexico law. When we refer with approval to federal cases, we do so because, in our view, they provide a truthful statement of matters we decide entirely under the New Mexico Constitution. New Mexico law is the sole authority upon which we base our decision today.

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 case 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, contraband, 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(C) (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(G)(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 18 U.S.C. § 981(a)(1)(A) (1994), and 21 U.S.C. § 881(a)(6) & (a)(7) (1994 & Supp. II 1996), applies to the double-jeopardy analysis of our Section 30-31-34 only for purposes of the United States Constitution. See Ursery, 518 U.S. at 291-92. However, unless this Court determines otherwise, Ursery has no authority when our forfeiture laws are viewed in light of the New Mexico Constitution.

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 case law expressly denies a similar interpretation of the Fifth Amendment.See footnote 5

{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, 94 N.M. 753, 756, 617 P.2d 142, 145 (1980); accord Swafford v. State, 112 N.M. 3, 7 n.3, 810 P.2d 1223, 1227 n.3 (1991) (finding no suggestion "that the New Mexico double jeopardy clause, in the multiple punishment context, provides further protection than that afforded by the federal clause as interpreted by relevant federal case law"). However, with State v. Breit, in keeping with our interstitial relationship with the Federal Constitution, we parted ways with the United States Supreme Court's views of the Fifth Amendment. In Breit, we held that the Double Jeopardy Clause of the New Mexico Constitution barred retrial following a mistrial caused by prosecutorial misconduct, when the prosecutor knew his or her conduct was improper and prejudicial, and either intended to provoke a mistrial or acted in willful disregard of the resulting mistrial, retrial, or reversal. Breit, 1996-NMSC-067, ¶ 32. We concluded that the reasoning of Oregon v. Kennedy, 456 U.S. 667, 679 (1982), was flawed because it barred retrial only if the prosecutor intended to provoke a mistrial. See Breit, 1996-NMSC-067, ¶¶ 19-24.

{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 defendant's innocence or guilt. See State v. Davis, 1998-NMCA-148, ¶ 14, 126 N.M. 297, 968 P.2d 808. In a nonjury trial, this means that jeopardy attaches when the court begins to hear at least some evidence on behalf of the state.See footnote 6 In a jury trial, jeopardy attaches at the point when a jury is impaneled and sworn to try the case. State v. James, 93 N.M. 605, 606, 603 P.2d 715, 716 (1979). In the case of a guilty plea or plea of nolo contendere, jeopardy attaches at the time the court accepts the defendant's plea. See State v. James, 94 N.M. 7, 9, 606 P.2d 1101, 1103 (Ct. App.) (guilty), rev'd on other grounds, 93 N.M. 605, 603 P.2d 715 (1979); State v. Degnan, 587 A.2d 71, 72 (R.I. 1991) (nolo). We will explain below why double jeopardy is not waived by a guilty plea.

{29}     In civil forfeiture proceedings, many authorities have suggested that jeopardy attaches at the time the court enters its final judgment.See footnote 7 This is because the final decree of forfeiture marks the moment when the ownership rights of the defendant are altered. Thus, as we shall explain below, even if there was no trial because the defendant did not appear at the forfeiture hearing, jeopardy attaches upon the issuance of a default judgment order. We hold that jeopardy attaches in a civil forfeiture proceeding at the time the court enters its final judgment, either at the conclusion of a trial or upon entering a default 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, 511 U.S. 767, 804 (1994) (Scalia, J., dissenting) ("[I]f there is a constitutional prohibition on multiple punishments, the order of punishment cannot possibly make any difference."). The New Mexico Constitution bars whichever action placed the defendant in jeopardy a second time for the same offense.

{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.

            Modern 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 his booty 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.See footnote 8 Second are proceeds, which are the monetary profits derived from an illegal enterprise as well as any goods or investments purchased with that money. See Rachel L. Brand, Recent Developments, 20 Harv. J.L. & Pub. Pol'y 292, 306 (1996). Third are instrumentalities, which are property used in committing a crime_they are integral to the crime, the means without which the crime could not have been committed as charged, the sine qua non of trafficking in controlled substances. In New Mexico, under the Controlled Substances Act, contraband is summarily forfeited by the State. See NMSA 1978, § 30-31-36 (1987). Summary forfeiture of contraband does not implicate double jeopardy. Contraband is property that is illegal in itself, regardless of how it was acquired, how it was used, whether or not anyone even owns it. No one has the right, under Article II, Section 4 of our Constitution, to acquire, possess, or protect contraband. However, in the forfeiture of all other types of property under the Controlled Substances Act, jeopardy attaches.

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.

120 N.M. 619, 626, 904 P.2d 1044, 1051 (1995).

{37}     In contrast, the Ursery majority justified its conclusion by applying a two-pronged test. Ursery, 518 U.S. at 277-78. The Ursery court quoted that test from one of its earlier forfeiture cases: United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), superceded on other grounds by statute as noted by Cooper v. City of Greenwood, 904 F.2d 302, 305 n.3 (5th Cir. 1990). This two-pronged test is supposed to determine whether a forfeiture statute was intended by Congress to be punitive or remedial.

        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, 465 U.S. at 362-63 (quoting United States v. Ward, 448 U.S. 242, 248-49 (1980)) (citation omitted), quoted in part in Ursery, 518 U.S. at 277-78.

{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 or multiple prosecution cases. If 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. The most conservative members of the United States Supreme Court have admitted that, even if the double-jeopardy clause does not reach multiple punishments, it does protect against multiple prosecutions. See, e.g., Ursery, 518 U.S. at 297 (Scalia, J., concurring).

{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 first 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, 518 U.S. at 288. In implementing this first prong, the Ursery Court found that "[t]here is little doubt that Congress intended these forfeitures to be civil proceedings," because Congress designed forfeiture under the statute to be in rem, impersonally "targeting the property itself." Id. at 288-89. The Court also noted that federal forfeitures are governed by civil procedure mechanisms rather than criminal procedure mechanisms. Id. at 289. We shall respond to these in rem and civil/criminal arguments below.

{40}     In the second stage of the analysis, the Court evoked the declaration of 89 Firearms, that, "'"[o]nly 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, 465 U.S. at 365 (quoting Ward, 448 U.S. at 249 (quoting Flemming v. Nestor, 363 U.S. 603, 617 (1960))). The Court found that the federal forfeiture statutes, "while perhaps having certain punitive aspects, serve important nonpunitive goals." Ursery, 518 U.S. at 290. The second question is structured to further reinforce the Court's complete deference to legislative intent. This prong asks whether the forfeiture proceedings "are so punitive in form and effect as to render them criminal despite Congress' intent to the contrary." Id. An affirmative answer to this question depends upon a very high standard_"clearest proof"_which guarantees that legislative intent will prevail except in the most egregiously punitive circumstances. See id.; Adam C. Wells, Comment, Multiple-Punishment & the Double Jeopardy Clause: The United States v. Ursery Decision, 71 St. John's L. Rev. 153, 170 (1997). In the context of all the other arguments of Ursery, "clearest proof" is such an inaccessible standard that it requires the judiciary to suspend its own interpretation of the constitution in favor of that of the legislature.See footnote 9 Unlike federal courts, New Mexico courts have never used the expression "clearest proof" as a standard for evaluating the legitimacy of forfeiture actions.

{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.See footnote 10 Ursery states explicitly that its holding applies to "civil forfeitures generally." Ursery, 518 U.S. at 270. It is difficult to imagine a forfeiture scenario that would be so punitive as to surpass the bar set by Ursery.

{42}     We have discovered only two cases_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, 702 N.E.2d 771, 772 (Ind. Ct. App. 1998), transfer denied, 719 N.E.2d 386 (1999) (Sullivan, J., dissenting to transfer denial), the defendant was prosecuted for various crimes in relation to an accusation of sexual assault. Under an Indiana statute that authorized the seizure of property that had been used in the commission of certain enumerated crimes, the state forfeited his vehicle, claiming it had been used to escape. Id. The Indiana Court of Appeals applied the two-part Ursery test and found that because forfeiture of the vehicle was stipulated by the relevant statute as a sanction for the specific crimes of attempted rape and criminal confinement, double jeopardy prevented further prosecution for those crimes after the forfeiture had taken place. However, the charges of attempted criminal deviate conduct and criminal deviate conduct were not barred by double jeopardy because those crimes were not among the enumerated offenses in the forfeiture statute. Id. at 773-75.

{43}     The non-forfeiture case, People v. Wood, 698 N.Y.S.2d 122, 124-27 (N.Y. App. Div. 1999), mentioned Ursery and held that double jeopardy prevented a criminal contempt proceeding for harassment after the defendant had already been sanctioned in a family-court contempt proceeding based on same underlying conduct. The court in Wood could hardly dispute that the defendant had already been punished because the sanction under the first proceeding was a jail sentence.

{44}     Even if there are other cases 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, 518 U.S. at 288-89.

{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 dispositive 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, 120 N.M. at 630, 904 P.2d at 1055; accord New Mexico Taxation & Revenue Dep't v. Whitener, 117 N.M. 130, 133, 869 P.2d 829, 832 (Ct. App. 1993) (discussing with approval the holding of United States v. Halper, 490 U.S. 435, 447-48 (1989), abrogated by Hudson v. United States, 522 U.S. 93, 95, 100-03 (1997), that "the labels 'criminal' and 'civil' were not of paramount importance and could not be utilized to defeat the applicable protections of constitutional law"). The resolution of the issue before us turns, not on the fact that a forfeiture proceeding is instituted under the rules of civil procedure, but on whether the sanction of forfeiture was intended to be a form of punishment. See Whitener, 117 N.M. at 134, 869 P.2d at 833 (stating that "the most relevant consideration was the character of the sanction and whether it could fairly be called punitive in nature").

{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, 117 N.M. at 134, 869 P.2d at 833; accord State v. Barber, 108 N.M. 709, 710-11, 778 P.2d 456, 457-58 (Ct. App. 1989) (legislature cannot diminish a right expressly guaranteed by the constitution). "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." In re P.S., 676 N.E.2d 656, 663 (Ill. 1997) (Heiple, C.J., dissenting).

{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.See footnote 11 In that circumstance we do defer because it is the role of the Legislature to define crimes and ascribe the proper punishments. See State v. Tsethlikai, 109 N.M. 371, 373, 785 P.2d 282, 284 (Ct. App. 1989) ("When conduct by a defendant violates two statutory provisions, the role of the constitutional guaranty is limited to assuring that the sentencing court has not exceeded its legislative authority."). There are, of course, limitations on this legislative power. See Swafford, 112 N.M. at 13-14, 810 P.2d at 1233-34 (setting forth "a two-part test for determining legislative intent to punish").

     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, 120 N.M. at 623, 904 P.2d at 1048. In applying our three-part test, we concluded that the State had subjected the DWI defendants to separate proceedings and that the conduct precipitating the separate proceedings consisted of a single offense. Id. at 626-28, 904 P.2d at 1051-53. However, as to the third part of the test, we concluded that the administrative license revocation was not punishment for double-jeopardy purposes.

{51}     In making this determination we followed the United States Supreme Court's holding in Halper, 490 U.S. at 447, that the legislative choice to apply the labels "criminal" or "civil" are not determinative of whether a particular sanction is punitive. Schwartz, 120 N.M. at 628-29, 904 P.2d at 1053-54. In Schwartz we held that "[i]n order to ascertain whether these sanctions are punitive we must look at the purposes that the sanctions actually serve. We make this determination by evaluating the government's purpose in enacting the legislation, rather than evaluating the effect of the sanction on the defendant." Id. at 631, 904 P.2d at 1056 (citation omitted). Looking at the purposes behind the administrative revocation of a driver's license, we concluded that it is "significant that the operation of automobiles on public highways is an activity that is regulated by the government." Id. An essential aspect of government regulation is issuing of licenses that are conditional; they are valid only as long as the participant adheres to the standards "set by the government for participation in a regulated activity." Id. Upon a violation, the administrative sanction is not punitive if it "reasonably serves regulatory goals adopted in the public interest." Id. Though we found that the license revocation did have certain punitive aspects, we concluded that the primary objectives of the sanction were predominately remedial. Id. at 633-34, 904 P.2d at 1058-59. We held that suspending a driver's license for DWI "serves the legitimate nonpunitive purpose of protecting the public from the dangers presented by drunk drivers and helps enforce regulatory compliance with the laws governing the licensed activity of driving." Id. at 632, 904 P.2d at 1057.

{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 Schwartz 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, 1997-NMSC-006, ¶ 19. We now apply the three-pronged Schwartz test.

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, 2 F.3d 17, 20 (2d Cir. 1993), in which the court asserted that the two actions were both were part of a "single, coordinated prosecution." If there were only one proceeding, these cases would not be before us.

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, 284 U.S. 299, 304 (1932). The Blockburger test has been augmented by our courts and is integral to New Mexico's double-jeopardy jurisprudence. See Swafford, 112 N.M. at 8-9, 810 P.2d at 1228-29 (incorporating Blockburger into New Mexico test for analyzing multiple punishment claims); Schwartz, 120 N.M. at 626-27, 904 P.2d at 1051-52 (applying Blockburger in determining "whether the conduct precipitating the revocation hearing and the criminal prosecution consists of one offense or two offenses").

{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 case 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, 90 N.M. 93, 95, 559 P.2d 1220, 1222 (Ct. App. 1977) ("An offense may not be split into many parts and made the subject of multiple prosecutions."). It would be incumbent on the State to prove that it was not splitting the same offense in order to preserve the tactical advantages of bringing a separate forfeiture action.

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, 120 N.M. at 631, 904 P.2d at 1056; accord Whitener, 117 N.M. at 133, 869 P.2d at 832 (describing the holding of Halper, 490 U.S. at 448, and stating that "the determination of whether a given civil sanction constituted punishment required a particularized assessment of the penalty imposed and the purposes that the penalty may be fairly said to serve").

{63}     As noted above, Schwartz makes it clear that a nonpunitive sanction need not be "'solely'" remedial. Schwartz, 120 N.M. at 633-34, 904 P.2d at 1058-59 (discussing statement from Halper, 490 U.S. at 448, that "a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term" (emphasis added)). Schwartz concluded that "the fact that the regulatory scheme has some incidental deterrent effect does not render the sanction punishment for the purposes of double jeopardy analysis." Schwartz, 120 N.M. at 633, 904 P.2d at 1058. Common sense tells us that there are circumstances in which the reverse is true as well: certain statutory schemes_like forfeitures under the Controlled Substances Act_may have certain remedial aspects though their purposes are primarily punitive.

{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, 904 P.2d at 1058-59 (indicating that an incidental deterrent purpose does not outweigh the remedial intent of a sanction). This is ascertained by examining the statutory scheme that creates the sanction. We also believe that if neither the remedial nor the punitive purposes predominate, the evaluation should be guided by whether the sanction affects a fundamental right. Thus, in a close case, if the right at stake were statutory, such as the loss of an administrative license, the most likely conclusion would be that the sanction is remedial. However, in the matter we address today, there is much disagreement about whether the purposes of forfeiture under the Controlled Substances Act are more remedial than punitive. Our conclusion about this matter is strongly influenced by the fact that the purpose of the sanction is to deprive the defendant of the fundamental constitutional right of "acquiring, possessing and protecting property." See N.M. Const. art. II, § 4. This creates a strong presumption that the sanction is punitive.

{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.See footnote 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.See footnote 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 not render forfeiture a predominately remedial sanction.

         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. Morris 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 instrumentalities_property 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, 518 U.S. at 290. Under federal law, innocent owners may lose property even when they never consent to or are completely unaware of the illegal use of their property.See footnote 14 Such an outcome in New Mexico is precluded, both by the innocent owner provisions of the Controlled Substances Act and by the determinations of our courts. See § 30-31-34(G)(1), (2), (4); In re Forfeiture of One 1970 Ford Pickup Truck, 113 N.M. 97, 100, 823 P.2d 339, 342 (Ct. App. 1991) (holding an innocent co-owner's portion of confiscated property not subject to forfeiture).

     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.See footnote 15 Moreover, the presumption that forfeiture is punitive can be traced to the earliest opinions of the Territorial Supreme Court, prior to our statehood.See footnote 16 This presumption continued after New Mexico was admitted into the Union.See footnote 17 In more recent years, the forfeiture of water rights has similarly been regarded as punishment.See footnote 18

{74}     The Ursery majority did not mention its holding in Boyd v. United States, 116 U.S. 616, 634 (1886), overruled on other grounds by Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 302-07 (1967), that forfeitures have a "quasi criminal nature." This concept was reiterated by the Court a number of times in the subsequent decades including another case the majority did not discuss, One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700 (1965) (stating "a forfeiture proceeding is quasi-criminal in character"). In New Mexico, this "quasi-criminal" characterization of civil forfeitures was adopted from 1958 Plymouth, and has become a fixture of our jurisprudence.See footnote 19 The validity of this quasi-criminal characterization is bolstered by the holdings of both New Mexico and federal appellate courts that the exclusionary rule applies to forfeiture proceedings. Evidence obtained in violation of the search and seizure protections guaranteed by the United States and New Mexico Constitutions can be used neither at the defendant's criminal trial nor at the forfeiture proceeding.See footnote 20

{75}     For these reasons, it is well established in New Mexico that, "[f]orfeitures are not favored at law and statutes are to be construed strictly against forfeiture." State v. Ozarek, 91 N.M. 275, 275, 573 P.2d 209, 209 (1978).See footnote 21 Forfeitures, "should be enforced only when within both the letter and the spirit of the law." Mitchell v. City of Farmington Police Dep't (In re Forfeiture of Two Thousand Seven Hundred Thirty Dollars & No Cents), 111 N.M. 746, 748-49, 809 P.2d 1274, 1276-77 (1991) [hereinafter $2730.00]. We regard forfeiture with mistrust because it divests the individual of the right "of acquiring, possessing and protecting property"_one of the most fundamental liberty interests. See N.M. Const. art. II, § 4. It is "not a mere restraint on use, temporary loss, or a device used to satisfy pre-existing debts or secure jurisdiction." Cheh, Easy, supra, at 10. It is the most extreme sanction the state can bring against the property owner. Id. ("Forfeiture is to fines what capital punishment is to incarceration."). With regard to the fundamental right to property, the state can devise no penalty more extreme than taking away property without compensation. It is true that the state may impose penalties more harsh or expensive than the forfeiture of such property as an old car or a small amount of cash. 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.

{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), 84 N.M. 652, 506 P.2d 1199 (1973). However, as the United States Supreme Court sagely observed over120 years ago, "in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein." Pennoyer v. Neff, 95 U.S. 714, 734 (1878), overruled on other grounds by Shaffer v. Heitner, 433 U.S. 186, 206 (1977). An in rem action is directed, not against the property per se, but rather at resolving the interests, claims, titles, and rights in that property.See footnote 22 And it is persons_as individuals, governments, corporations_who possess those interests, claims, titles, and rights.See footnote 23

{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.See footnote 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., 210 N.E.2d 865, 868-69 (Ind. App. 1965) (an action in rem determines "the right in specific property against all of the world, equally binding on everyone") This quality of in rem jurisdiction is of significant value in a forfeiture proceeding under the Controlled Substances Act. Forfeiture under the Act deprives defendants of ill-gotten and ill-used property. However, the illegal drug trade is a global enterprise. In many cases one cannot presume that all those who have an interest in the property are known, have been apprehended, or are within the court's jurisdiction. See Stefan B. Herpel, Toward a Constitutional Kleptocracy: Civil Forfeiture in America, 96 Mich. L. Rev. 1910, 1918 (1998) (review of Leonard Levy, A License to Steal: The Forfeiture of Property (1996)) (Some, if not most, defendants whose property is subject to forfeiture "are persons or entities over which an American court will typically have no personal jurisdiction."). In rem jurisdiction allows the court to divest any wrongdoer anywhere of any interest they may possess in that unlawful property.

             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, 111 N.M. at 748, 809 P.2d at 1276; see also Herpel, supra, at 1916-19. Thus, in maritime law, an action was brought against a ship as if it were the wrongdoer. This aspect of in rem doctrine is known as the guilty property fiction. This fiction treats inanimate objects as if they were sentient beings.

{81}     The guilty property fiction_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.See footnote 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, 518 U.S. at 275 (quoting Various Items of Personal Property v. United States, 282 U.S. 577, 581 (1931) (alteration, omissions, and emphasis in original)). Because only persons can be punished, the majority's claim that persons are not the object of a forfeiture action separates forfeiture from the realm of punishment.

{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, 111 N.M. at 748, 809 P.2d at 1276; see also 1970 Ford Pickup, 113 N.M. at 99, 823 P.2d at 341. In fact, this Court has noted that the United States Supreme Court itself has characterized this fiction "as '"archaic," "an animistic survival from remote times," "irrational" and "atavistic."'" $2730.00, 111 N.M. at 748, 809 P.2d at 1276 (quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 23 (1960) (quoting In re The R. Lenahan, Jr., 48 F.2d 110, 112 (2d Cir. 1931))). These criticisms are still valid and distinctive aspects of New Mexico law.

             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 modern 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, 518 U.S. at 274)). Once it is accepted that the purpose of in rem forfeiture is to target, not the property by itself, but a person's interest in that property, it is self-evident that the forfeiture is punishment.See footnote 26

        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., 118 U.S. 468, 503 (1886); see also Continental Grain, 364 U.S. at 23-24.

{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 proceeds of their drug trade, and potentially any worldly goods, including legally acquired property, that served as an instrumentality to crime. The harsh punishment is intended as an object lesson to the world of the consequences of being involved with illegal drugs. This deterrent function of forfeitures under the Controlled Substances Act serves a decidedly punitive purpose.

         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 ("[C]ivil 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.See footnote 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.See footnote 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 Halper and mentioned by the State, that forfeitures are a "rough justice" approximation of the monetary costs of the crime. See Halper, 490 U.S. at 446, 449. Such a rationale is merely an admission that value of the sanction is unrelated to the cost of ameliorating the harm and further underscores the punitive nature of these forfeitures.

{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 makes some attempt to calibrate sanctions to a remedial purpose, that the particular sanction in question was imposed in a form or amount unrelated to that purpose").

         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.See footnote 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), 120 N.M. 408, 412-13, 902 P.2d 563, 567-68 (Ct. App. 1995) [hereinafter $14,639].

         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(G)(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(G)(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(G)(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, 120 N.M. at 413, 902 P.2d at 568. The force of this reasoning is exemplified by our Court of Appeals holding in In re Forfeiture of One 1970 Ford Pickup, mentioned above, which protected an innocent co-owner from forfeiting her proportionate interest in property because of the crimes of a guilty co-owner. 113 N.M. at 100, 823 P.2d at 342. Federal law is less respectful of the rights of innocent people than we are in New Mexico. There are no New Mexico controlled-substances cases that have affirmed the forfeiture of property when the owner was completely unaware of any illegal activity by the lessors or borrowers as in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-90 (1974) (holding that forfeiture of a yacht, after police found marijuana on board, was not unconstitutional even though owner-lessor of yacht was totally innocent and unaware of presence of drugs), or United States v. One 1978 Chrysler Le Baron Station Wagon, 648 F. Supp. 1048, 1051 (E.D.N.Y. 1986) (affirming forfeiture of innocent company's car which was used to transport drugs by an employee who was the son of the company's president and primary stockholder). Forfeiture in New Mexico is a sanction that applies only to wrongdoers. "If forfeiture had been understood not to punish the owner, there would have been no reason to reserve the case of a truly innocent owner. Indeed, it is only on the assumption that forfeiture serves in part to punish that the Court's past reservation of that question makes sense." Austin v. United States, 509 U.S. 602, 617 (1993).

     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 resolved by guilty pleas to the criminal charges, forfeitures as a result of default judgments, or both. The State argues that the defendants waived their double-jeopardy defense with their plea agreements and that jeopardy did not attach with the default judgments, and, thus, their double-jeopardy claims are barred. We disagree.

     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, 55 F.3d 1496 (10th Cir. 1995). In Montoya, the defendant violated the terms of his probation. As a result, his probation was revoked and he was sentenced to his previously suspended sentence plus an additional four years under the Habitual Offender Act, NMSA 1978, §§ 31-18-17 to -20 (1977, as amended through 1993). In a federal habeas petition brought before the Tenth Circuit Court of Appeals, Montoya contended that the additional four years amounted to an increased sentence after retrial in violation of double jeopardy. Montoya, 55 F.3d at 1497-98. The Tenth Circuit held that Montoya had waived his double-jeopardy claim under the United States Constitution because he agreed, in his original plea bargain, to a sentence enhancement if he should ever violate probation. Id. at 1499. The Tenth Circuit declined to apply the New Mexico non-waiver statute, Section 30-1-10, because it raised a statutory_rather than constitutional_claim, and "[s]tate claims are not cognizable in habeas proceedings unless they are constitutional in nature." Id. Montoya is distinguishable from the cases before this Court because it was decided under the United States Constitution, not under the laws of the State of 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, 120 N.M. 38, 41, 897 P.2d 225, 228 (Ct. App. 1995). There are exceptions to this rule, however. One exception applies when the defendant has reserved an issue for appeal as part of the plea agreement. See State v. Hodge, 118 N.M. 410, 415-16, 882 P.2d 1, 6-7 (1994). Another exception applies when, as in this case, the issue raised on appeal concerns a double-jeopardy claim.

{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, 1996-NMSC-067, ¶ 11 ("The right to be protected from double jeopardy is so fundamental, that it cannot be relinquished even if a conviction is affirmed on appeal."). A plea agreement, which may result in the waiver of other potential claims, has no effect on a defendant's right to raise a double-jeopardy defense. See Handa, 120 N.M. at 42-43, 897 P.2d at 229-30; State v. Jackson, 116 N.M. 130, 132-33, 860 P.2d 772, 774-75 (Ct. App. 1993).

{99}     We note that the Court of Appeals, in addressing this issue in Handa, 120 N.M. at 40-43, 897 P.2d at 227-30, and Jackson, 116 N.M. at 132-33, 860 P.2d at 774-75, while relying on the anti-waiver statute, also applied an exception established in United States v. Broce, 488 U.S. 563, 569, 574-76 (1989), to the general rule that a guilty plea waives appeal of all issues. Broce is only applicable to federal constitutional claims. The anti-waiver statute is sufficient to permit a defendant to raise a double-jeopardy claim on appeal even if that claim was not raised before the trial court and even though the defendant entered into a guilty plea agreement which was not conditioned on reservation of that claim.

[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 jeopardy cannot attach if the defendants made no appearance during the forfeiture proceedings. The State suggests that because the defendants never appeared and never filed claims or answers, they were not parties and waived their rights to contest the forfeiture actions. This means, according to the State, that the defendants were never put at risk, the sanction was not applied directly against them, they voluntarily abandoned their property, were not punished by the forfeiture, and were thus never placed in jeopardy. Federal courts have adopted this line of reasoning.See footnote 30

[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, 120 N.M. at 631, 904 P.2d at 1056; accord Whitener, 117 N.M. at 133, 869 P.2d at 832. We have now established that the New Mexico forfeiture statutes are unquestionably punitive, not only in their effect, but in their purposes. Once the punitive nature of the forfeiture statutes is established, it is nonsense to hold that the state seeks to punish if the defendant appears, but not if the defendant fails to appear. If punishment is intended, jeopardy attaches. Whether the court has punished the defendant depends upon the character of the sanction_the deprivation of property through forfeiture_and not upon defendant's presence or absence during the proceeding.

[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.See footnote 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.See footnote 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 action. Forfeiture is nominally a civil action. See $14,639, 120 N.M. at 413, 902 P.2d at 568 (forfeiture requires "a civil burden of proof"). Under a civil burden of proof, the State would only need to establish its case by a preponderance of the evidence. See UJI 13-304 NMRA 1999 ("It is a general rule in civil cases that a party seeking a recovery [or a party relying upon a defense] has the burden of proving every essential element of the claim [or defense] by the greater weight of the evidence.").

[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, 32 N.M. 481, 484, 259 P. 618, 619 (1927). ("Appellant's right to be protected in the possession of his property is fundamental. His objection is not strictly legal, technical or unsubstantial. It goes to the very right itself."). It is true that in State v. Ozarek, 91 N.M. at 276, 573 P.2d at 210, we stated "that the burden imposed on the owner is the burden of going forward and not the burden of persuasion." However, any fairness to the defendant is undermined by the fact that the State can rebut any defense by no more than a preponderance of the evidence.

[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, 303 U.S. 391, 401-04 (1938). The State's case can be established with evidence that would be inadmissible in a criminal court, and oftentimes the defendants cannot afford counsel either because they are indigent or because the property that would be used to pay a lawyer has been taken by the State.See footnote 33 Critics argue that absolving the government of a stringent burden of proof has "shifted the power to impose economic sanctions from judges to prosecutors." David B. Smith, Asset Forfeiture: A Serious Threat to Our Property Rights, Briefly . . . Perspectives on Legis., Reg., & Litig., Oct. 1998, at 3 [hereinafter Smith, Threat]. We agree that applying the civil burden of proof to forfeitures under the Controlled Substances Act places an unfair burden on defendants.

{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, 588 So. 2d 957, 967 (Fla. 1991) ("We conclude that the state has the burden of proof at trial, which should be by no less than clear and convincing evidence."). This is a measure urged by many critics of drug-related forfeitures. See, e.g., Smith, Threat, supra, at 25.

{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 criminal prosecution. However, in a bifurcated proceeding, both the criminal portion and the forfeiture portion are unquestionably criminal in nature. "The property owner effectively stands accused of either criminality outright or indifference to it." Cheh, Easy, supra, at 38. In a criminal proceeding the State cannot be relieved of the burden of establishing under a stringent standard of proof that a defendant should be stripped of a constitutional right_the right of "acquiring, possessing and protecting property." See N.M. Const. art. II, § 4.

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, 497 U.S. 37, 41 (1990).

{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]etrospective 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." Santillanes v. State, 115 N.M. 215, 224, 849 P.2d 358, 367 (1993). This three-pronged analysis was taken by the Santillanes Court from the 1965 United States Supreme Court case, Linkletter v. Walker, 381 U.S. 618, 636 (1965), overruled by Griffith v. Kentucky, 479 U.S. 314, 320-22 (1987).See footnote 34

{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 cases. 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, 93 N.M. 519, 521, 602 P.2d 616, 618 (1979) ("The question of whether or not a rule of law is to be applied retrospectively arises only for causes that have been finalized."). A case is finalized when "a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." Griffith, 479 U.S. at 321 n.6. Between these extremes are cases that are pending on the rule's effective date. In those circumstances, on direct appeal, retroactivity is limited to two situations: either the issue that is addressed by the new rule must be raised and preserved below, or the failure to apply the rule must constitute fundamental error.See footnote 35

{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, 1996-NMSC-054, ¶¶ 3-8, 122 N.M. 433, 925 P.2d 1195. We chose to "address the issue of retroactivity on its merits" but expressly avoided analyzing the applicability of the non-waiver statute. Id. ¶ 5.

{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, 115 N.M. at 224, 849 P.2d at 367. Evaluating the validity of old and forgotten forfeitures under the Controlled Substances Act would be unjust because of the mere impracticality of recovering evidence, reg