(dissenting) — Has "Catlett’s case . . . been overtaken by events” (Majority at 369) or has the constitution been overtaken by the majority?
I find the latter more probable since article I, section 9 of the Washington Constitution is the same today, word for word, as on the date of its popular ratification — October 1, 1889 — and the Fifth Amendment is identical to the text proposed by Congress and ratified by three-fourths of the states in 1791. Members of the court may change, but the organic constitutional documents and the principles they embody do not.
The question then is whether either constitution bars a subsequent criminal prosecution arising from the same facts which previously prompted the state to seize and *370forfeit a criminal defendant’s property.10 The trial court and the Court of Appeals concluded the double jeopardy clause of both the federal and state constitutions bars such a criminal prosecution. I agree.
I. Double Jeopardy Clause of the United States Constitution
[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb ....
U.S. Const, amend. V. The United States Supreme Court did not apply the Fifth Amendment to the states until 1969.11 However now it is generally recognized the Fifth Amendment’s double jeopardy protections add a second layer of protection to the rights enjoyed by the citizens of several states beyond that required by their state constitutions. See State v. Smith, 117 Wn.2d 263, 283, 814 P.2d 652 (1991) (Utter, J., concurring); Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491 (1984) (hereinafter "Utter”).
The clause prohibits " 'successive punishments’ ” for the same crime. United States v. Ursery, 518 U.S. 267, 116 S. Ct. 2135, 2139, 135 L. Ed. 2d 549 (1996) (quoting United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 2855, 125 L. Ed. 2d 556 (1993)). The issue is simply whether forfeiture under RCW 69.50.505 is punishment. See State v. McClendon, 131 Wn.2d 853, 870, 935 P.2d 1334, 1344 (Talmadge, J., concurring) ("The present case rises and falls on a single question: is the license action punishment? If it is punishment, jeopardy attaches.”), cert. denied, 118 S. Ct. 624 (1997).
*371"Whether a state sanction is punishment is a question of statutory interpretation. Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 2081, 138 L. Ed. 2d 501 (1997) (whether sanction is punishment for double jeopardy " 'is first of all a question of statutory construction’ ”) (quoting Allen v. Illinois, 478 U.S. 364, 368, 106 S. Ct. 2988, 92 L. Ed. 2d 296 (1986)); In re Young, 122 Wn.2d 1, 18, 857 P.2d 989 (1993) (whether statute punishes for double jeopardy "is largely a matter of statutory construction.”); Beckett v. Department of Soc. & Health Servs., 87 Wn.2d 184, 188, 550 P.2d 529 (1976), overruled on other grounds by Dunner v. McLaughlin, 100 Wn.2d 832, 843, 676 P.2d 444 (1984). The statutory issue focuses on a variety of factors including the nature of statutory sanction, the statute’s place in the overall regulatory scheme, the legislative intent and whether the statute’s sanction has historically been viewed as punishment. In re Young, 122 Wn.2d 1, 857 P.2d 989 (1993).
As candidly acknowledged by the majority, this court has historically held the Fifth Amendment double jeopardy clause bars, absolutely, any subsequent criminal prosecution which arises under the same facts as a previous forfeiture of property under the statute here at issue.12 *372But we must measure this precedent with deference to the majority’s claim that Ursery, 116 S. Ct. 2135, trumps prior state precedent for the purpose of the federal constitutional analysis.
That Ursery controls is clearly correct; however, that Ursery strips Catlett of her Fifth Amendment protection is clearly not.
The majority characterizes Ursery as positing a two-prong test in such situations:
(1) Did Congress intend the forfeiture statute to be criminal or civil? [And, if civil,]
(2) Are the proceedings so punitive as to persuade the Court that the forfeiture proceeding may not be viewed as civil in nature despite congressional intent?
Majority at 365. The second prong of the test is employed only if we first determine if the legislative intent is "civil”; for if it is "criminal” the analysis proceeds no further because jeopardy is established.
A. Criminal Legislative Intent
RCW 69.50.505 provides:
(a) The following are subject to seizure and forfeiture and no property right exists in them:
(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, in any manner to facilitate the sale, delivery, or receipt of [illegal drugs] ....
Of course this statute is a state statute, not a federal one. Therefore we must independently determine legislative, not congressional, intent. State sovereignty requires no less. Cf. Boeing Aircraft Co. v. Reconstruction Fin. Corp., 25 Wn.2d 652, 657, 171 P.2d 838, 168 A.L.R. 539 (1946) ("The American system of government is dual in nature, containing Federal and state sovereignties, each supreme within its appropriate sphere . . . .”).
*373Ursery construed two federal statutes, 21 U.S.C. §§ 881 and 981, concluding that the congressional intent was to create a civil remedy.13 Ursery, 116 S. Ct. at 2147. However, we have repeatedly held the United States "Supreme Court’s construction of a similarly worded[14] federal statute, although often persuasive, 'is not controlling in our interpretation of a state statute.’ ” Hoffer v. State, 113 Wn.2d 148, 151, 776 P.2d 963 (1989) (declining to apply federal interpretation of a federal securities law to similar Washington securities law) (quoting State v. Gore, 101 Wn.2d 481, 486-87, 681 P.2d 227, 39 A.L.R.4th 975 (1984) (citing Weeks v. Chief of the Wash. State Patrol, 96 Wn.2d 893, 897, 639 P.2d 732 (1982))); Kahler v. Kernes, 42 Wn. App. 303, 308, 711 P.2d 1043 (1985) ("Interpretations of 21 U.S.C. § 881(a)(4) [the federal forfeiture statute] do not help in interpreting RCW 69.50.505(a)(4).”); compare State v. Clark, 124 Wn.2d 90, 98, 875 P.2d 613 (1994) (dicta suggest similar federal and state statutes have similar implications for the purposes of federal double jeopardy, concluding both implicate jeopardy).
Application of Ursery’s first prong is simple. We have previously held RCW 69.50.505 imposes a quasi-criminal punishment. Deeter v. Smith, 106 Wn.2d 376, 378, 721 *374P.2d 519 (1986) and Clark, 124 Wn.2d at 97-101. Deeter’s question was whether forfeiture of defendant’s car under RCW 69.50.505 was punishment for Fourth Amendment purposes. By unanimous opinion we answered RCW 69.50.505 "is intended to impose a penalty on an individual for a violation of the criminal law,” Deeter, 106 Wn.2d at 378, and hence was "quasi criminal.” "In this regard the Fourth and Fifth Amendments run almost into each other.” Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524, 532, 29 L. Ed. 746 (1886). Punishment for the purpose of one must be punishment for the other.
Clark, 124 Wn.2d 90, expressly held our state Legislature intended this particular statute to be punitive and unanimously concluded forfeiture under this statute is "punishment.” Clark, 124 Wn.2d at 101 ("We therefore conclude the forfeitures at issue here are 'punishment’ for purposes of federal double jeopardy analysis.”).
The common denominator of the three separate opinions in State v. Cole, 128 Wn.2d 262, 906 P.2d 925 (1995) was to the extent property was forfeited under RCW 69.50.505, and was not proceeds of a connected crime, the forfeiture was punishment for jeopardy purposes. Justice Talmadge, joined by Justices Smith and Dolliver, wrote "civil forfeiture [under RCW 69.50.505] of property other than proceeds is a punishment . . . .” Cole, 128 Wn.2d at 285 n.18. Justice Alexander, joined by Chief Justice Durham and Justice Madsen, concurred to the extent property forfeited "was not proceeds of drug trafficking ... a conviction on criminal charges that follows a forfeiture action constitutes a second punishment for the same offense.” Id. at 293. Justice Johnson, joined by Justices Guy and Utter, dissented, writing "a forfeiture under RCW 69.50.505(a)(7), the statute at issue here, must be considered punishment” for double jeopardy purposes. Cole, 128 Wn.2d at 297. Punishment by forfeiture was the point of common agreement.
Deeter and Clark were both unanimous decisions, both are still good law, and both held the statute in question is *375punishment, as did Cole. These cases control and are dis-positive. Except for Clark (as per this majority opinion) they have not been overruled. As Catlett’s car is not the proceeds of crime, seizing it because she sold crack cocaine is criminal punishment under Washington law and jeopardy attaches.
Not only have our cases substantively analyzed the statute as punishment but they have facially labeled it "quasi criminal.” City of Lynnwood v. $128 Cash, 61 Wn. App. 505, 513, 810 P.2d 1377 (1991) (forfeitures under RCW 69.50.505 are "quasi criminal since their purpose is to penalize individuals who are illegally involved with controlled substances”); Franklin v. Klundt, 50 Wn. App. 10, 12, 746 P.2d 1228 (1987) ("A forfeiture proceeding under RCW 69.50.505 is quasi criminal in nature . . . .”); Deeter, 106 Wn.2d at 378 ("Clearly then, forfeiture proceedings brought pursuant to this statute are quasi criminal ----”).
I posit state authority which has determined the subject state forfeiture statute is punishment and "quasi criminal” is dispositive under the Ursery test.
If this were not enough, however, there are several other independent factors which favor this conclusion even beyond binding precedent. RCW 69.50.505 is part and parcel of the controlled substances act, and it is an overtly criminal statute which imposes harsh felony penalties for possession and/or distribution of illegal drugs. See, e.g., Article IV—Offenses and Penalties, RCW 69.50.401-.440. The fact that the forfeiture provisions are embedded in a criminal statute further suggests it is punitive and criminal. Compare Young, 122 Wn.2d at 19 (the fact the sexual psychopath statute is part of the civil commitment portion of RCW Title 71 on mental illness and not in criminal law suggests it is civil), and Kansas v. Hendricks, 117 S. Ct. at 2082 (Kansas’s sexually violent predator act is noncriminal because it is within the Kansas probate code).
Young directs consideration of " 'whether the behavior to which [the sanction] applies is already a crime ....’” *376122 Wn.2d at 21 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963)). Austin v. United States, 509 U.S. 602, 620, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993) similarly held the sanction is punishment if "tie[d] . . . directly to the commission of drug offenses.” Deeter holds the purpose of this statute "is to penalize individuals who participate in the illegal transportation of controlled substances.” Deeter, 106 Wn.2d at 378. RCW 69.50.505(a)(4) provides forfeiture results when the owner sells, delivers, or receives criminally illegal drugs as defined elsewhere in the same chapter. Further, the statute contains innocent owner exceptions. See RCW 69.50.505(a)(7). Such are indications of a legislative intent to punish and are also inconsistent with in rem civil forfeiture. Clark, 124 Wn.2d at 100. Forfeiture of one’s car or home is directly tied to the commission of a drug crime. When one loses life, liberty, or property as a result of a criminal act, such is punishment. Compare McClendon, 131 Wn.2d at 875 n.59 (Talmadge, J., concurring) (license probation not punishment because defendant is "not deprived of life, limb, liberty, or property.”). Susan R. Klein, Civil In Rem Forfeiture and Double Jeopardy, 82 Iowa L. Rev. 183, 188 (1996) ("[FJorfeiture is punitive if the property owner is guilty of a criminal offense that would support the forfeiture, unless the forfeited property is illegal or dangerous for anyone to own.”). Forfeiture under RCW 69.50.505 is criminal punishment.
B. Civil Proceedings Punitive in Substance
Were we to mistakenly conclude in disregard of controlling precedent the subject forfeiture provision was legislatively labeled "civil” (which it isn’t), Ursery further directs our gaze behind that label to substance. As the majority says, we must ask, "Are the proceedings so punitive as to persuade the Court that the forfeiture proceedings may not be viewed as civil in nature despite congressional [legislative] intent?” Majority at 365.
First we must consider what purposes are really served *377by seizing someone’s car for committing a drug violation. See United States v. Halper, 490 U.S. 435, 448, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989) ("[T]he determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.”).
RCW 69.50.505 serves goals of deterrence and retribution, classic hallmarks of criminal punishment, as it facially provides its forfeiture provisions "will provide a significant deterrent to crime.” Laws op 1989, ch. 271, § 211, at 1298. See Deeter, 106 Wn.2d at 378 (purpose of RCW 69.50.505(a)(4) "is to penalize individuals who participate in the illegal transportation of controlled substances”); Andrew L. Subin, The Double Jeopardy Implications of In Rem Forfeiture of Crime-Related Property: The Gradual Realization of a Constitutional Violation, 19 Seattle U. L. Rev. 253, 253 (1996) ("[T]he government has relied heavily on the forfeiture of property related to drug crimes as a tool to deter and punish the illegal distribution of drugs.”). Deterrence and retribution are indicative of punishment. Young, 122 Wn.2d at 22 ("[RJetribution and deterrence are punitive, and thus are the goals of criminal law.”); Bell v. Wolfish, 441 U.S. 520, 539 n.20, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979) ("Retribution and deterrence are not legitimate nonpunitive governmental objectives.”).
The history of forfeitures in Washington also demonstrates forfeitures in our State have traditionally been for punishment. Young, 122 Wn.2d at 18; Ursery, 116 S. Ct. at 2149.
Under English law forfeiture of one’s property for committing a crime was always deemed an added punishment, usually reserved for egregious crimes because it reached to the well-being of the convict’s family. See 3 William *378Blackstone, Commentaries on the Laws of England 267 (St. George Tucker ed., 1969) (1803) ("Forfeiture is a punishment” added for oifenses such as high treason.). The Washington Territory statutorily incorporated English common law into territorial law in 1881 and upon statehood territorial law became law of the State. Code of 1881, § 1; Const, art. XXVII, § 2; RCW 4.04.010.
At the time of statehood, forfeitures were also considered punishment by the United States Supreme Court for double jeopardy purposes. For example, in 1886, on the eve of our statehood, the Supreme Court held forfeitures civil in form may be criminal in effect. Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 534, 29 L. Ed. 746 (1886) ("[Proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of oifenses committed by him, though they may be civil in form, are in their nature criminal” and thus give rise to these constitutional safeguards.). See also United States v. Chouteau, 102 U.S. 603, 611, 12 Otto 603, 26 L. Ed. 246 (1880) (forfeiture of bond precludes subsequent criminal action). But historically our State eschewed forfeiture of property for criminal acts. A Washington statute, enacted in 1909, provides, "A conviction of crime shall not work a forfeiture of any property, real or personal, or of any right or interest therein.” RCW 9.92.110. Until the 1970s, forfeiture under Washington law was very limited,15 whether characterized as civil or criminal.
In stark contrast to our state experience, Ursery relied on the unique and long federal experience with forfeitures in admiralty (seizing pirate ships) and customs (seizing illegal contraband). But our state forfeiture statute was *379born of different intent. When our Legislature first enacted this forfeiture law it intended it to be criminal and punitive. State v. Clark, 124 Wn.2d 90, 99, 875 P.2d 613 (1994) ("The Legislature . . . ha[s] declared the Washington civil [sic] forfeiture statute to be at least partially punitive.”).
The majority claims even if a statute predominately punishes, any remedial effect mandates the entire statute must fall outside the double jeopardy analysis. Although this proposition is questionable at best,16 this statute is solely punitive.
To support its claim that there are remedial aspects, the majority asserts "[t]his purpose is confirmed by the distributive scheme for funds obtained by forfeiture. See, e.g., RCW 69.50.505(f)-(i).”17 Majority at 368. The majority’s footnote 8 references Laws of 1989, chapter 271, section 211 at 1298 (Majority at 368 n.8). But even the most superficial reading of this section demonstrates the entire governmental justification for property forfeiture, however the proceeds are distributed, is crime-related. The terms "offenses,” "crimes,” "illegal,” "deterrent to crime,” appear so frequently within the quoted material that one might assume this citation came from the dissent rather than the majority. Moreover, the reference to investment of "profits derived from the criminal activities, [to] be invested in legitimate assets and later used for further criminal activities” (majority at 368 n.8) bespeaks of a forfeiture of criminal proceeds, of which Ms. Catlett’s car clearly was not.
The majority also states "[t]he statute is designed to reimburse government for its prosecutorial costs.” Majority at 368. This claim was rejected outright in Clark, 124 *380Wn.2d at 9818 (citing Austin v. United States, 509 U.S. 602, 622 n.14, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993). ("The value of the conveyances and real property forfeitable . . . can vary so dramatically that any relationship between the Government’s actual costs and the amount of the sanction is merely coincidental.”). Actually the majority proves the applicability of the double jeopardy clause by forging yet another link between criminal conduct and criminal forfeiture.
Judged by the Ursery standard this forfeiture raises a double jeopardy bar to a subsequent criminal prosecution because (1) the statute is criminal or at least quasi-criminal, not civil, and (2) even if we were to wrongly label the statute civil, the proceedings thereunder are nevertheless so punitive in effect the court must view them substantively criminal in any event.
Moreover, I would independently reach the same conclusion under article I, section 9 of the Washington Constitution, for the reasons set forth below.
II. Double Jeopardy Under Washington Constitution
Rights of Accused Persons. No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense.
Const, art. I, § 9.
Citing cases which generally hold the Washington double jeopardy clause means the same as its federal counterpart,*38119 the majority posits if the United States Supreme Court radically changes what was previously thought to be the meaning of the Fifth Amendment, ipse dixit, the meaning of the state clause must change along with it (see supra 371 n.12). Thus, as per the majority, the federal tail wags the state constitutional dog. I disagree.
Washington Constitution article I, section 32 mandates:
A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government.
However, there is nothing fundamental about a standard of constitutional interpretation which varies the "fundamental principles” of our state constitution by each unanticipated United States Supreme Court decision, even those rendered a century or more after our state constitution was ratified by the people in 1889. To the contrary, the principles of our constitution were not only meant for their time but for all time, absent amendment to the organic document in the manner prescribed.
The constitution must be construed in the sense in which the framers understood it in 1889. In other words, its meaning was fixed at the time it was adopted.
The rule is well stated in 11 Am. Jur. 674, Constitutional Law, § 61, as follows:
"The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it. A constitutional clause must be construed reasonably to carry out the intention of the framers, which gives rise to the corollary that it should not be construed so as to defeat the obvious intent if another construction equally in accordance with the words and sense may be adopted which will enforce and carry out the intent. The intent must be gathered from both the letter and spirit of the document.
"It has been very appropriately stated that the polestar in *382the construction of Constitutions is the intention of the makers and adopters.”
Boeing Aircraft Co. v. Reconstruction Fin. Corp., 25 Wn.2d 652, 658-59, 171 P.2d 838, 168 A.L.R. 539 (1946) (quoting 11 Am Jur. Constitutional Law § 61).
A constitutional provision should receive a consistent and uniform interpretation. Even though the circumstances may have changed to make a different rule seem more desirable, the constitution should not be taken to mean one thing at one time and another at another time. State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 273 P.2d 464 (1954).
Notwithstanding sound constitutional doctrine supported by ample specific authority that forfeiture under this statute invokes jeopardy,20 the majority facially rejects the established rule that the meaning of our state constitution was fixed at the time it was adopted and must be construed in the sense in which the ratifiers understood it. Simply put, the majority supplants an independent analysis of the true meaning of our state constitution by the majority’s characterization of Ursery, a recent case decided by the United States Supreme Court 107 years after the adoption of article I, section 9 (Majority at 365-69) and which, quite obviously, had absolutely no bearing whatsoever on the original understanding of the citizens of this State who popularly ratified our constitution in 1889.
The implication of this approach is catastrophic in theory and effect. In theory it contradicts the early constitutional history of the United States which leaves "no doubt that state bills of rights were never intended to be depen*383dent on or interpreted in light of the United States Bill of Rights.” Utter, supra, at 496. It abrogates the very essence of constitutional government because it denies the nature of our state constitution as a covenant between the people and their government whereby the people consent to be governed but only cede the power of governance in a limited fashion upon specific terms and conditions, punctuated by even further exceptions delineated in our State Declaration of Rights, of which the double jeopardy clause is an integral part. Const, art. I, § 9. In practice a transient majority of this court sets itself above the very constitutional covenant which created the court by purporting not to interpret our state constitution but rather to supplant it with the shifting sands of federal jurisprudence.
Not only reason but precedent has rejected this errant approach. We refused to "reject . . . established jurisprudence and follow, blindly, the lead of the United States Supreme Court” in State v. Jackson, 102 Wn.2d 432, 438, 688 P.2d 136 (1984), where the Supreme Court limited Fourth Amendment guarantees below the prior federal standard we had applied by analogy to constitution article I, section 7:
Prior reliance on federal precedent and federal constitutional provisions do not preclude us from taking a more expansive view of Const, art. 1, § 7, where the United States Supreme Court determines to further limit federal guaranties in a manner inconsistent with our prior pronouncements.
State v. Jackson, 102 Wn.2d at 439 (citing cases). Cf. Parrish v. West Coast Hotel Co., 185 Wash. 581, 55 P.2d 1083 (1936) , aff’d, 300 U.S. 379, 81 L. Ed. 703, 57 S. Ct. 578 (1937) (State Supreme Court rejects United States Supreme Court precedent to sustain minimum wage law against constitutional challenge.).
When interpreting the state constitutional suspension clause ("The privilege of the writ of habeas corpus shall not be suspended, unless in case of rebellion or invasion the public safety requires it.” Const, art. I, § 13), we have *384stated, absent any Gunwall analysis, "[r]ather than examining the allegedly mutable parameters of the federal suspension clause, this court has looked to the scope of the common law privilege at the time of our state suspension clause’s enactment . . . .” In re Runyan, 121 Wn.2d 432, 441, 853 P.2d 424 (1993). And in City of Tukwila v. Nalder, 53 Wn. App. 746, 770 P.2d 670 (1989), the Court of Appeals correctly observed:
Thus, while interpretation of the parallel federal constitutional provisions may provide guidance in interpreting our own, we must ultimately rely on the hierarchy of values and principles that have been developed under the Washington Constitution.
Id. at 749-50. Additionally, this court interprets
the state constitution in the only manner which appears to us to be reasonable in the light of the historical background which its framers and the people who adopted it necessarily must have had in mind at that time.
Lemon v. Langlie, 45 Wn.2d 82, 109, 273 P.2d 464 (1954).
By tying the state constitutional provision to the Supreme Court’s various constructions of the similar federal clause, this majority violates the "cardinal rule” of constitutional construction:
"A cardinal rule in dealing with constitutions is that they should receive a consistent and uniform interpretation, so that they shall not be taken to mean one thing at one time and another thing at another time, even though the circumstances may have so changed . . . .”
State ex rel. Munro v. Todd, 69 Wn.2d 209, 214, 417 P.2d 955, 426 P.2d 978 (1966) (quoting State ex rel. Banker v. Clausen, 142 Wash. 450, 454, 253 P. 805 (1927)). This rule precludes this court from doing exactly what the majority has done, construing a statute to have one constitutional consequence on one day, but another constitutional consequence on another:
"In accordance with this principle [the "cardinal rule” as *385stated above], a court should not allow the facts of the particular case to influence its decision on a question of constitutional law, nor should a statute be construed as constitutional in some cases and unconstitutional in others involving like circumstances and conditions. Furthermore, constitutions do not change with the varying tides of public opinion and desire. The will of the people therein recorded is the same inflexible law until changed by their own deliberative action; and therefore the courts should never allow a change in public sentiment to influence them in giving a construction to a written constitution not warranted by the intention of its founders.”
Langlie, 45 Wn.2d at 110 (quoting Clausen, 142 Wash. at 454, which quoted with approval 6 R.C.L. 46).
Justice Madsen aptly discerned the pitfalls of tying state constitutional interpretation to federal decisions:
When this state’s analysis is tied to the whims of the federal courts, state law may have to be modified frequently to adjust to later circuit splits on the issue and the United States Supreme Court’s retraction of its earlier decisions. Judicial efficiency will be lost because every time the Supreme Court changes its mind, this court will be called to revisit the issue. Finality is also sacrificed because state decisions tied to federal law may be open to reversal by the Supreme Court. Most importantly, independent state constitutional analysis is lost somewhere in the ever-shifting shadow of the federal courts which are no less political and perhaps more so than our own state courts.
State v. Gocken, 127 Wn.2d 95, 110-11, 896 P.2d 1267 (1995) (Madsen, J., concurring in part, dissenting in part) (citations omitted). As Justice Madsen correctly perceived, our State followed an independent double jeopardy analysis pursuant to our state constitution long before the United States Supreme Court even purported to apply the federal double jeopardy analysis to states through the Fourteenth Amendment in 1969. See Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).
Justice Johnson’s dissenting opinion in Gocken, which *386complemented Justice Madsen’s concurrence, cites with favor State v. Jackson, 102 Wn.2d 432, 688 P.2d 136 (1984) for the proposition that "this court refused to follow the shifting sands of federal jurisprudence when interpreting Const, art. I, § 7, instead maintaining a strong commitment to independent state constitutional analysis.” Gocken, 127 Wn.2d at 113 (Johnson, J., dissenting). Justice Johnson further noted this court’s independent interpretation of article I, section 9
has developed parallel to Fifth Amendment jurisprudence, not in reliance on it. That our interpretation has been the same as or similar to Federal Fifth Amendment jurisprudence is a result of this court’s reliance on the common law and on the history of double jeopardy in Anglo-American criminal law .... Therefore, unless we now intentionally decide to proceed in lockstep with federal double jeopardy analysis [recent federal cases are] of no consequence to this court’s interpretation of article I, section 9.
Gocken, 127 Wn.2d at 114 (Johnson, J., dissenting) (footnote omitted).
Allowing federal precedent to rewrite our state constitution invites "the Court to choose the lowest common denominator of individual rights.” Utter, supra, at 496 (citing Steven D. Gordon et al., Project Report, Toward an Activist Role for State Bills of Rights, 8 Harv. C.R.-C.L. L. Rev. 271, 293-96 (1973)). But as Justice Utter stated, state constitutions were originally intended as the primary device to protect individual rights, whereas the United States Bill of Rights was intended as a secondary layer. Utter, supra. The majority stands this rule designed to enhance, not compromise, civil liberties on its head.
Even where the state and federal constitutions use the identical language, "the intent could be quite different,” id. at 498, and "lawyers and judges should avoid the easy and well-worn path of searching for answers in federal cases,” id. at 505.
Ordinary rules of textual and constitutional interpretation, *387as well as the logic of federalism, require that meaning be given to the differences in language between the Washington and the United States Constitutions, and that even identically worded provisions be interpreted independently unless a very good historical justification for assuming that the framers intended an identical meaning can be found.
Utter, supra, at 515-16 (citing Young v. Konz, 91 Wn.2d 532, 539, 588 P.2d 1360, 1364 (1979) (holding that federal precedent regarding due process was not controlling with regard to state due process, even though the state and federal due process clauses were identically worded)). Compare Commonwealth v. Peterfield, 415 Pa. Super. 313, 609 A.2d 540, 551-52 (1992) (Elliott, J., dissenting) ("Even though a state constitutional provision has been interpreted as co-extensive with a federal constitutional provision, '[w]hen confronted with a change in federal precedent a state court need not, however, continue to adhere to the concept of co-extensiveness.”) (quoting Bruce Ledewitz, The State Constitution Assumes New Importance, 7 Pa. L.J. Rep. 1, 10 (Nov. 5, 1984)).21
Yet the majority sets forth no historical justification whatsoever for claiming our state constitutional provision means something different in 1997 than it did in 1994 and 1995, much less in 1889 when it was popularly ratified. The majority forgets the admonition of Chief Justice John Marshall: "[W]e must never forget, that it is a constitution we are expounding.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L. Ed. 579 (1819).
Even were we to assume the 1889 ratifying public understood the article I, section 9 double jeopardy clause to mean exactly as the federal clause, it must have understood the federal clause in light of the United States *388Supreme Court precedent of that day—not 107 years later. We credit these men with brilliance but not precognition.
In point of fact there was reason to believe federal jurisprudence of that time considered similar forfeitures punishment for federal double jeopardy purposes. See, e.g., Chouteau, 102 U.S. at 611 and Boyd v. United States, 116 U.S. at 633-34 ("We are also clearly of opinion that proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offences committed by him, though they may be civil in form, are in their nature criminal.”) (see discussion supra at 378-79X22
I would reaffirm the fundamental principle that our constitution means the same now as it did in 1889, and neither this court, nor much less the federal judiciary, is vested with any authority whatsoever to change it. Necessarily embraced within this principle is the realization that a change in the manner in which federal courts construe the federal constitution neither is, nor should be, any justification whatsoever to overrule binding state precedent construing our state constitution. If seizure of a car used to transport drugs under RCW 69.50.505(a) raised a state constitutional double jeopardy bar to a subsequent criminal prosecution yesterday, it does no less today. Our constitution has changed not one wit in the interim, nor has it been overtaken by "events.” Men perhaps, but not events.
If the majority does worry about a "judicial maelstrom,” perhaps it best seek refuge under the shelter provided by the principles of our constitution rather than striking out to lose its way in the dark and stormy night.
Mary Catlett was "punished” when the State seized her car for the alleged criminal drug violation. Double jeopardy bars a subsequent punishment, or even proceeding, *389for the same underlying act. The Court of Appeals was clearly correct. I would affirm.
Johnson, Madsen, and Alexander, JJ., concur with Sanders, J.
I exclude from the issue property which is unlawful contraband or proceeds of criminal activity. This seizure and criminal prosecution arise from the same facts. The trial court made a finding to this effect and that finding is not challenged. See Trial Court’s Findings of Fact and Conclusions of Law Re: Mot. to Dismiss for Violation of Double Jeopardy, Conclusion of Law 10, at 10 C'[T]he only facts which made forfeiture of Ms. [Catlett’s] vehicle a possibility [were] the transport or delivery of a controlled substance . . . .”).
Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707 (1969).
Deeter v. Smith, 106 Wn.2d 376, 378, 721 P.2d 519 (1986) ("Clearly then, forfeiture proceedings brought pursuant to this statute are quasi criminal in nature since their purpose is to penalize individuals who participate in the illegal transportation of controlled substances.”); State v. Clark, 124 Wn.2d 90, 97, 875 P.2d 613 (1994) (forfeiture of motor home under same statute "is 'punishment’ for purposes of federal double jeopardy analysis.”); compare distinction from proceeds: State v. Cole, 128 Wn.2d 262, 279, 906 P.2d 925 (1995) ("We hold that so long as the forfeited property is proceeds of an illegal drug transaction, there is no punishment for purposes of double jeopardy.”).
That our court at least previously understood such to be the true meaning of the Fifth Amendment is beyond dispute yet the majority deals with such precedent {Clark) by simply overruling it. Majority at 361. Even the author of the majority opinion wrote just last year prior to publication of Ursery jeopardy may attach to civil forfeiture: “Because, depending on the nature of the property seized, such [civil] forfeitures may be punishment, jeopardy attaches. As a result, subsequent criminal convictions for the substantive drug offense charged at the time of the seizure may be barred by double jeopardy.” Philip A. Talmadge, Preface: Double Jeopardy in Washington and Beyond, 19 Seattle U. L. Rev. 209, 215 (1996) (footnote omitted). See also State v. Cole, 128 Wn.2d 262, 285 n.18, 906 P.2d 925 (1995) (Talmadge, J.) C'[C]ivil forfeiture of property other than proceeds is a punishment. . . .”).
Christine P. Fontana, Comment, The New/ Old” Concept of Civil Forfeiture and Punishment: An Eye for an Eye, a Tooth for a Tooth ... a Mobile Home and a Body Shop for Two Grams of Cocaine, 42 Loy. L. Rev. 769, 787 (1997) ("The bottom line to the disparity of labeling and language when visiting the civil forfeiture arena revolves around an interesting concept: civil forfeiture due to narcotics violations is the money-making darling of the government. The government can, in effect, economically gain from a double punishment by punishing property with any connection to the drug activity, along with subjecting its owner to imprisonment and other fines normally included in criminal proceedings.”).
21 U.S.C. § 881(a)(7) permits forfeiture of "All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year’s imprisonment. . . .”
21 U.S.C. § 881(a)(4) permits forfeiture of "All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of [controlled substances] . . . .”
Washington law has always allowed the return of proceeds of a crime. See State v. Cramer, 167 Wash. 159, 163, 8 P.2d 1004 (1932) ("Rem. Comp. Stat. § 2288 [ ... ] provides: 'A conviction of crime shall not work a forfeiture of any property, real or personal, or of any right or interest therein.’ Certainly it would not be contended that to take stolen-goods from a convicted thief and return them to the rightful owner, would be a violation of § 2288, supra.”). Washington law has permitted confiscation of property which is per se unlawful. See, e.g., Code of 1881, § 968(2) flaw enforcement may seize illegal gaming apparatus intended for illegal gaming).
Clark, 124 Wn.2d at 98-100 ("|T]f the civil forfeiture statute is at all punitive, it is to be deemed 'punishment.’ ”).
These sections provide 10 percent of the forfeiture shall go to the state general fund with the remainder to drug-related law enforcement.
I would also dispute this statute "is designed to reimburse government for its prosecutorial costs.” There is neither evidence nor claim in this record that forfeited property necessarily, much less coincidentally, bears any relationship whatsoever to prosecutorial costs in general, much less to Ms. Catlett. Indeed, the only criterion for forfeiture is that the property fits within the class of property subject to forfeiture, not that it approximates the costs of the subsequent criminal prosecution nor, for that matter, that there be any criminal prosecution at all.
State v. Ridgley, 70 Wn.2d 555, 556, 424 P.2d 632 (1967); State v. Gocken, 127 Wn.2d 95, 896 P.2d 1267 (1995).
Such authority requires no further detailed analysis as per State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986) to require adherence under the rule of stare decisis. State v. Boland, 115 Wn.2d 571, 800 P.2d 1112 (1990) (once the court has determined that a state constitutional provision provides specific protection a full Gunwall analysis is not required); State v. Rickman, 85 Wn. App. 568, 573, 933 P.2d 1088 (1997) (same); State v. Gocken, 127 Wn.2d 95, 109-10, 896 P.2d 1267 (1995) (Madsen, J., concurring in part, dissenting in part) (Gunwall analysis unnecessary where state constitutional provision has heen independently interpreted)); State v. Thorne, 129 Wn.2d 736, 785, 921 P.2d 514 (1996) (same).
Commonwealth v. Carroll, 427 Pa. Super. 1, 628 A.2d 398, 406 (1993) (Cavanaugh, J., concurring) noted the passage quoted in the Peterfield dissent partially states " 'a lower Pennsylvania court must treat an analogous state constitutional claim as a matter of independent constitutional interpretation ....”’ (quoting Peterfield, 609 A.2d at 552 (Ford-Elliott, J., dissenting) (quoting Bruce Ledewitz, The State Constitution Assumes New Importance, 7 Pa. L. J. Rep. 1, 10 (Nov. 5, 1984))).
Justice Kennedy’s concurrence in Ursery, 116 S. Ct. at 2150, acknowledges language in Boyd is inconsistent with Ursery. Since we have acknowledged the language of Const, art. I, § 7 was derived from the Supreme Court decision in Boyd (City of Seattle v. McCready, 123 Wn.2d 260, 270, 868 P.2d 134 (1994)), such is all the more reason to prefer an independent interpretation of our constitution.