In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1923

Henry Turner, on his own behalf and
on behalf of all those similarly situated,

Plaintiffs-Appellants,

v.

Daniel R. Glickman, in his official
capacity as Secretary of the United States
Department of Agriculture, and Peter J.
Sybinsky, in his official capacity as
Secretary of the Indiana Family and
Social Services Administration,

Defendants-Appellees.



Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 98 C 1084--Richard L. Young, Judge.


Argued December 1, 1999--Decided March 16, 2000




       Before Bauer, Cudahy, and Flaum, Circuit Judges.

      Flaum, Circuit Judge. The class representative,
Henry Turner, on his own behalf and on behalf of
all those similarly situated, challenges the
constitutionality of 21 U.S.C. sec. 862a./1
That statute provides that individuals convicted
of certain drug-related felonies are permanently
ineligible for benefits under the federal food
stamp and Temporary Assistance for Needy Families
("TANF") programs. The plaintiffs-appellants
allege that this statute violates the Due Process
Clauses of the Fifth and Fourteenth Amendments,
the equal protection component of the Fifth
Amendment’s Due Process Clause and the Equal
Protection Clause of the Fourteenth Amendment,
and the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution. The
district court rejected these constitutional
claims and entered judgment for the defendants-
appellees. For the reasons stated below, we
affirm the decision of the district court.

I.   Facts
      The statutory provision at issue in this case,
21 U.S.C. sec. 862a, was enacted by Congress as
part of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, Pub. L.
No. 104-193, sec. 115, 110 Stat. 2105, 2180-81
(1996). The statute was passed in response to
growing concerns about the escalating costs of
federal welfare programs. See 142 Cong. Rec.
H9401 (daily ed. July 31, 1996) (statement of
Rep. Smith); 142 Cong. Rec. S9390 (daily ed. Aug.
1, 1996) (statement of Sen. Helms). In
particular, Section 862a was an attempt to
address what many members of Congress regarded as
increasing and costly incidences of fraud in the
food stamp program. See H.R. Doc. No. 104-651
(1996), reprinted in 1996 U.S.C.C.A.N. 2183,
2201, 2202; Enforcement of the Food Stamp
Program: Hearing Before the House Comm. on
Agric., 104th Cong. (1995) (statement of Roger C.
Viadero, Inspector General of the U.S. Dep’t of
Agric.).

      Section 862a attempts to reach the problem of
fraud by permanently disqualifying individuals
convicted of certain drug-related felonies from
receiving benefits under either the federal food
stamp program or the TANF program. Although
Congress did not specify where this provision was
to be codified, the Office of Law Revision
Counsel placed the statute in Title 21 of the
United States Code. The statute applies to all
convictions occurring on or after August 22,
1996. The law provides that states may exempt
recipients from disqualification under Section
862a, but the State of Indiana has chosen not to
provide such an exemption to its citizens.

      The class representative, Henry Turner, is an
Indiana resident and former recipient of food
stamps. As part of an annual review of his food
stamp eligibility, Turner was required to reapply
for that program in January 1998. Subsequent to
this reapplication, Turner was convicted of
felony possession of heroin and cocaine based on
conduct that occurred in April 1997. Solely
because of this conviction, Turner’s pending
reapplication for food stamps was denied under
Section 862a.
      In August 1998, Turner commenced a class action
suit for declaratory and injunctive relief in
federal district court, challenging the
constitutionality of Section 862a. Following a
hearing on the parties’ cross-motions for summary
judgment, the district court entered judgment for
the defendants-appellees. The plaintiffs-
appellants now appeal the decision of the
district court, arguing that permanent
disqualification from participation in the food
stamp and TANF programs of those convicted of
certain drug-related felonies violates the Due
Process Clauses of the Fifth and Fourteenth
Amendments, the equal protection component of the
Fifth Amendment’s Due Process Clause and the
Equal Protection Clause of the Fourteenth
Amendment, and the Double Jeopardy Clause of the
Fifth Amendment to the United States
Constitution.

II.   Analysis

A.

      The plaintiffs-appellants first contend that
Section 862a violates the equal protection
component of the Fifth Amendment’s Due Process
Clause and the Equal Protection Clause of the
Fourteenth Amendment because it lacks any
rational basis connected to a legitimate
government interest. Because the statute at issue
does not implicate any fundamental rights or
involve any suspect classifications, see
Department of Agric. v. Moreno, 413 U.S. 528, 533
(1973), the question before us is whether the
stated reasons proffered by the government are a
sufficient justification to survive rational
basis review, see Heller v. Doe, 509 U.S. 312,
320 (1993) ("[A] classification [neither
involving fundamental rights nor proceeding along
suspect lines] cannot run afoul of the Equal
Protection Clause if there is a rational
relationship between the disparity of treatment
and some legitimate government purpose."). In
rejecting the plaintiffs-appellants’ equal
protection challenge, the district court found
three rational bases for the legislation: (1)
deterring drug use; (2) reducing fraud in the
food stamp program; and (3) curbing welfare
spending. The defendants-appellees assert these
same three bases for the statute now, and argue
that they all represent legitimate government
interests.

      In attempting to show that the classification
in Section 862a has no rational basis, the
plaintiffs-appellants must meet a heavy burden.
Rational basis review "is not a license for
courts to judge the wisdom, fairness, or logic of
legislative choices." FCC v. Beach Comm., Inc.,
508 U.S. 307, 313 (1993). Rather, we must uphold
the challenged classification if "there is a
rational relationship between the disparity of
treatment and some legitimate government
purpose." Heller, 509 U.S. at 320. In order to
show that Section 862a is irrational, the
plaintiffs-appellants must "’negative every
conceivable basis which might support it,’ . . .
whether or not the basis has a foundation in the
record." Id. at 320-21(quoting Lehnhausen v. Lake
Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).
However, "the relationship of the classification
to its goal [must] not [be] so attenuated as to
render the distinction arbitrary or irrational."
Nordlinger v. Hahn, 505 U.S. 1, 11 (1992) (citing
City of Cleburne v. Cleburne Living Center, 473
U.S. 432, 446 (1985)).

      The plaintiffs-appellants argue that Section
862a is exactly the kind of arbitrary and
irrational government sanction that the equal
protection guaranties forbid. As the plaintiffs-
appellants correctly point out, one of the
express purposes of the Food Stamp Act is "[t]o
alleviate . . . hunger and malnutrition . . .
[by] permit[ting] low-income households to obtain
a more nutritious diet through normal channels of
trade." 7 U.S.C. sec. 2011. According to the
plaintiffs-appellants, Section 862a is not
relevant to this purpose because it deprives
individuals convicted of drug-related felonies of
food stamps despite their continuing financial
and nutritional needs. Furthermore, the
plaintiffs-appellants contend that Section 862a
has no rational connection to the three
justifications accepted by the district court:
deterring drug use, reducing fraud in the food
stamp program, and curbing welfare spending.

      Ordinarily, an argument as to the actual
purpose of a legislature in passing a law would
not be relevant to the question of whether the
challenged classification had a rational
connection to a legitimate government interest.
See Beach Comm., 508 U.S. at 315 (stating that
"it is entirely irrelevant for constitutional
purposes whether the conceived reason for the
challenged distinction actually motivated the
legislature") (citing Railroad Retirement Bd. v.
Fritz, 449 U.S. 166, 179 (1980)). However, as we
understand it, the plaintiffs-appellants’
argument does not rest on their ability to prove
that Congress acted with an unconstitutional
motive. Rather, the plaintiffs-appellants argue
that because no possible motive exists for
passing this law other than punishment, Congress
must have acted out of animus toward individuals
convicted of drug-related felonies and that the
district court’s assertion that the law functions
to reduce welfare fraud, deter drug abuse, and
decrease welfare expenditures is therefore
implausible. If this is true, and the plaintiffs-
appellants can "’negative every conceivable basis
which might support [Section 862a],’ . . .
whether or not the basis has a foundation in the
record," id. at 320-21(quoting Lehnhausen, 410
U.S. at 364), then the challenged statute would
lack a rational relation to a legitimate state
interest.

      After a consideration of Section 862a in light
of the proffered government interests, we reject
the plaintiffs-appellants’ equal protection
challenge. First, as the district correctly
found, there is a rational connection between the
disqualification of drug felons from eligibility
for food stamps and TANF and the government’s
desire to deter drug use. Rendering those
convicted of drug-related felony crimes
ineligible to receive food stamps or aid under
TANF is a potentially serious sanction, and
individuals who are currently eligible for such
assistance would undoubtedly consider potential
disqualification from federal benefits before
engaging in crimes involving illegal drugs. It
was not irrational for Congress to conclude that
the disqualification of drug felons from
receiving certain kinds of federal aid under
Section 862a would deter drug use among the
population eligible to receive that aid. This is
all that is required to sustain a classification
in the face of an equal protection challenge when
the challenged classification is subject to
rational basis review. See Heller, 509 U.S. at
319 ("[A] classification ’must be upheld against
equal protection challenge if there is any
reasonably conceivable state of facts that could
provide a rational basis for the
classification.’") (quoting Beach Comm., 508 U.S.
at 313).

      Similarly, the district court was correct in
finding a rational connection between Section
862a and the government’s desire to reduce fraud
in the food stamp program. As we noted above,
Congress passed this law at a time when serious
concerns had arisen regarding rising welfare
costs and increasing fraud in the food stamp
program. The legislative record in this case
contains testimony that food stamps were being
traded for drugs. See H.R. Rep. No. 104-651, at
68 (1996), reprinted in 1996 U.S.C.C.A.N. 2183,
2202. In light of this testimony, it was not
irrational for Congress to conclude that denying
food stamps and TANF aid to those convicted of a
drug felony would decrease the overall incidences
of fraud in those programs. The challenged
classification thus survives rational basis
review on this ground as well.

      The plaintiffs-appellants contend that existing
anti-fraud provisions in the Food Stamp Act, as
well as the fact that this statute exempts those
convicted of other felonies, undermine the
government’s contention that this statute is
aimed at deterring drug use and reducing welfare
fraud. However, on the facts of this case, we
find nothing in the equal protection guaranties
that would inhibit Congress’s ability to attempt
various means of reducing welfare fraud, nor that
would require Congress to address every aspect of
the problem at this time. Congress was concerned
about loopholes in the existing legislation
covering food stamp fraud, and it is entitled to
take measures to prevent that fraud in addition
to the existing anti-fraud provisions of the Food
Stamp Act./2 See Lyng v. Castillo, 477 U.S. 635
(1986) (upholding classification partly aimed at
preventing food stamp fraud despite the anti-
fraud provisions of the Food Stamp Act). Nor does
the equal protection requirement prevent Congress
from acting incrementally. See Milner v. Apfel,
148 F.3d 812, 814 (7th Cir. 1998) ("Legislatures
are permitted to correct a problem incrementally
even though by doing so they create arbitrary
distinctions until correction is complete.").
Here, where the law is rationally based on the
government’s desire to deter drug use and reduce
welfare fraud,/3 the plaintiffs-appellants’
argument that the law is actually aimed at
punishment is not sufficient to show a violation
of the plaintiffs-appellants’ equal protection
rights. See Vance v. Bradley, 440 U.S. 93, 97
(1979) ("The Constitution presumes that, absent
some reason to infer antipathy, . . . judicial
intervention is generally unwarranted.").
B.

      The plaintiffs-appellants next contend that
Section 862a unconstitutionally burdens their
rights under the Due Process Clauses of the Fifth
and Fourteenth Amendments. Because Section 862a
does not implicate a fundamental right,
substantive due process requires only that the
statutory imposition not be completely arbitrary
and lacking any rational connection to a
legitimate government interest. See Washington v.
Glucksberg, 521 U.S. 702, 722 (1997); Flemming v.
Nestor, 363 U.S. 603, 611 (1960) (stating that a
statute that does not implicate a fundamental
right will not be deemed to violate the
requirements of substantive due process absent a
showing that "the statute manifests a patently
arbitrary classification, utterly lacking in
rational justification"). The plaintiffs-
appellants’ due process claim, like their equal
protection claim, is thus subject to highly-
deferential rational basis review.

      For the same reasons that the plaintiffs-
appellants cannot make out an equal protection
claim, their due process argument fails as well.
In order for us to uphold this statute, the
government need only show a rational connection
between Section 862a and a legitimate government
interest. See Glucksberg, 521 U.S. at 722;
Flemming, 363 U.S. at 611. Here, as we discussed
at length above, the challenged statute has a
rational basis in both the government’s desire to
deter drug use and to reduce the incidences of
fraud in the food stamp program. In light of
these rational bases proffered by the government,
the plaintiffs-appellants have not made the kind
of showing necessary for us to invalidate the
statute under the deferential standard of
rational basis review.

C.

      Lastly, the plaintiffs-appellants contend that
Section 862a inflicts a second punishment on
those convicted of drug-related felonies in
violation of the Double Jeopardy Clause. The
representative plaintiff in this case was
convicted of possession of cocaine and heroin,
and was sentenced to one year in prison and one
year of probation. According to the plaintiffs-
appellants, this punishment was followed by a
second punishment for the same conduct when,
through the effect of Section 862a, he was
permanently disqualified from receiving federal
assistance under the food stamp and TANF
programs. The plaintiffs-appellants allege that
because Congress intended to punish those
convicted of drug-related felonies when it passed
Section 862a, that statute’s sanction is an
unconstitutional second punishment based on the
same underlying conduct from which his prison
sentence and probation stemmed.

      The Double Jeopardy Clause provides that no
"person [shall] be subject for the same offence
to be twice put in jeopardy of life or limb." U.S.
Const. amend. V. While "[t]he Clause protects .
. . against the imposition of multiple criminal
punishments for the same offense," Hudson v.
United States, 118 S.Ct. 488, 493 (1997), it has
long been "recognized that the Double Jeopardy
Clause does not prohibit the imposition of any
additional sanction that could "in common
parlance" be described as punishment." Id.
(citing United States ex rel. Marcus v. Hess, 317
U.S. 537, 549 (1943) (quoting Moore v. Illinois,
14 How. 13, 19 (1852))). The question, then, is
whether Section 862a functions as the kind of
criminal punishment covered by the Double
Jeopardy Clause, or whether the statute is a
civil penalty not subject to the prohibitions of
that Clause.

      Our analysis as to whether the penalty is
properly deemed criminal or civil involves two
steps: (1) an examination of congressional
intent; and (2) a consideration of the effect and
purpose of the statute. As to congressional
intent, our inquiry is "at least initially, a
matter of statutory construction." Hudson, 118
S.Ct. at 493. We look to whether Congress
"indicated either expressly or impliedly" that
Section 862a was a criminal or civil penalty.
United States v. Ward, 448 U.S. 242, 248 (1980).
If we determine that Congress intended the
statute to be a criminal punishment of those
convicted of drug-related felonies, our inquiry
is at an end and the statute would constitute
criminal punishment for purposes of the Double
Jeopardy Clause. See Kennedy v. Mendoza-Martinez,
372 U.S. 144, 169 (1963). However, if we conclude
that Congress intended a punishment to be civil
in nature, we then turn to the purpose and effect
of the statute to determine whether a penalty
Congress intended to be civil in nature actually
functions as a criminal one. Id. at 168-69.

1.   Congressional Intent

      The plaintiffs-appellants concede that Congress
did not expressly indicate that Section 862a was
to be a criminal penalty, but they argue that an
examination of the statute and the legislative
history reveals an implied intention to levy
criminal punishment against those convicted of
drug-related felonies. Specifically, the
plaintiffs-appellants assert that the language of
the statute, the placement of the statute in
Title 21 of the United States Code, and the
legislative history indicate that Congress
intended Section 862a to function as criminal
punishment. We will address each of these
arguments in turn.

      The plaintiffs-appellants first contend that the
language of the statute itself indicates a
congressional intent to levy a criminal
punishment through the enactment of Section 862a.
In support of this argument, the plaintiffs-
appellants note that the title of the statute
states that its sanction applies only to "certain
drug-related convictions." 21 U.S.C. sec. 862a.
Furthermore, the plaintiffs-appellants assert
that the statute defines the prohibited activity
in criminal terms by referring to the "element[s
of] . . . possession, use, or distribution of a
controlled substance." 21 U.S.C. sec. 862a(a). We
find this evidence drawn from statutory language
inconclusive. The statute does apply to drug-
related convictions, and speaks of the prohibited
activity in criminal terms, but this is only
evidence of the criminal nature of the underlying
conduct triggering the sanction of Section 862a.
These aspects of the statute do not speak to the
nature of the sanction itself, and therefore we
cannot conclude from the language of the statute
alone that Congress intended it to function as a
criminal punishment.

      The plaintiffs-appellants next argue that the
placement of Section 862a in Chapter 13 of Title
21 of the United States Code is illustrative of
a congressional intent to criminally punish drug
offenders. Although Congress enacted Section 862a
as part of a package of welfare reform
legislation, the statute was codified as an
addition to Chapter 13 of Title 21, the section
of the criminal code created by the Drug Abuse
Prevention and Control Act of 1970, 21 U.S.C.
sec. 801 et seq. Part D of Chapter 13 of Title
21, the section in which the challenged statute
was placed, is entitled "Offenses and Penalties."
According to the plaintiffs-appellants, Section
862a’s inclusion in a section of the criminal
code dealing with the enforcement of the nation’s
drug laws indicates a clear congressional
preference that it be classified as a criminal
penalty.

      We generally agree with the plaintiffs-
appellants’ assertion that the placement of a
statutory provision in the criminal code, and the
nature of the surrounding provisions, can be a
relevant factor in determining whether Congress
intended that provision to serve as a criminal
punishment or a civil sanction. See Kansas v.
Hendricks, 521 U.S. 346, 361 (1997). However, in
this case, the plaintiffs-appellants’ argument as
to the placement of Section 862a in Chapter 13 of
Title 21 ignores Congress’s actual role in the
codification decision. Section 862a was not
placed in the criminal code according to the
specification of Congress; that decision was made
by the Office of Law Revision Counsel. See 2
U.S.C. sec. 285b(4). Moreover, Congress has not
approved this codification decision by
subsequently enacting Title 21 into positive law.
See United States Code, Preface, at VII (Supp.
III 1997); see also LaCrosse v. Commodity Futures
Trading Comm’n, 137 F.3d 925, 927 n.1 (7th Cir.
1998) (noting that less than half the titles in
the United States Code have been enacted into
positive law). Because Congress did not make the
decision to place Section 862a in the criminal
code, that placement is not evidence of
congressional intent to levy a criminal
punishment. We therefore accord that placement no
weight. See United States v. Welden, 377 U.S. 95,
99 n.4 (1964) ("Certainly where . . . the ’change
of arrangement’ was made by a codifier without
the approval of Congress, it should be given no
weight.") (quoting Murrell v. Western Union Tel.
Co., 160 F.2d 787, 788 (5th Cir. 1947)).


      Finally, the plaintiffs-appellants argue that
the legislative history of Section 862a indicates
Congress’s preference that the statute be
criminally punitive. However, the plaintiffs-
appellants concede that the legislative history
addressing the statute is sparse at best. The
only evidence the plaintiffs-appellants cite is
a statement by the original author of the bill,
Senator Phil Gramm of Texas, who urged that "if
we are serious about our drug laws, we ought not
to give people welfare benefits who are violating
the Nation’s drug laws." 142 Cong. Rec. S8493,
S8498 (July 23, 1996). Such a statement standing
alone is no evidence of congressional intent, and
at best reflects Senator Gramm’s own feelings
that the law would help deter the illegal use of,
and trafficking in, drugs. The legislative
history in this case gives no indication of a
congressional intent to criminally punish those
convicted of drug-related felonies.

      The most significant indication we can find of
congressional intent is the enforcement
provisions provided by Congress. Significantly,
the ineligibility provisions of Section 862a are
not enforced through any criminal process.
Rather, the permanent disqualification from the
receipt of food stamps and TANF benefits of
individuals convicted of drug-related felonies is
enforced by the state agencies responsible for
administering the food stamp program. In this
case, the representative plaintiff’s
reapplication for food stamps was denied by the
Indiana Family and Social Services
Administration, not the Indiana courts. It is
widely-recognized that the fact that Congress
makes a statute enforceable by an administrative
agency "is prima facie evidence that Congress
intended to provide for a civil sanction."
Hudson, 188 S.Ct. at 103 (citing Helvering v.
Mitchell, 303 U.S. 391, 402 (1938)); S.A. Healy
Co. v. Occupational Safety and Health Review
Comm’n, 138 F.3d 686, 688 (7th Cir. 1998);
LaCrosse, 137 F.3d at 931.

      The plaintiffs-appellants contend that the fact
that Section 862a is administered by state
agencies is irrelevant because those agencies
exercise no discretion in disqualifying persons
convicted of a drug-related felony. According to
the plaintiffs-appellants, it is the agency’s
exercise of discretion that renders a punishment
presumptively civil in character. We disagree. A
statute administered by an agency is
presumptively civil not because the agency
exercises discretion in administering it, but
rather because agency enforcement mechanisms do
not contain the same procedural safeguards that
criminal proceedings do. See Helvering, 303 U.S.
at 402 ("Civil procedure is incompatible with the
accepted rules and constitutional guaranties
governing the trial of criminal prosecutions, and
where civil procedure is prescribed for the
enforcement of remedial sanctions, those rules
and guaranties do not apply."). Because the
enforcement mechanism provided by Congress for
Section 862a is enforced by administrative
agencies who do not provide the kind of rules and
guaranties attendant in criminal proceedings, we
must presume that Congress intended it to act as
a civil sanction. See Hudson, 118 S.Ct. at 495;
Helvering, 303 U.S. at 402 ("That Congress
provided a distinctly civil procedure . . .
indicates clearly that it intended a civil, not
a criminal, sanction.").

2.   The Statute’s Effect

      Our conclusion that Congress intended the
sanction of Section 862a to be civil in nature
does not end our double jeopardy inquiry. Having
found no congressional intent to criminally
punish, we must now look for "the clearest
proof," Hudson, 118 S.Ct. at 493, that "the
statutory scheme [is] so punitive in purpose or
effect," Ward, 448 U.S. at 248-49, as to
"transform what was clearly intended as a civil
remedy into a criminal penalty." Rex Trailer Co.
v. United States, 350 U.S. 148, 154 (1956);
United States v. Newman, 144 F.3d 531, 540 (7th
Cir. 1998). If the statute does serve as a
criminal punishment in purpose and effect, then
we must disregard Congress’s intent to create a
civil sanction.


      Our determination as to whether Congress
intended Section 862a to criminally punish is
made according to a number of guidelines,
including: (1) "[w]hether the sanction involves
an affirmative disability or restraint"; (2)
"whether it has historically been regarded as a
punishment"; (3) "whether it comes into play only
on a finding of scienter"; (4) "whether its
operation will promote the traditional aims of
punishment--retribution and deterrence"; (5)
"whether the behavior to which it applies is
already a crime"; (6) "whether an alternative
purpose to which it may rationally be connected
is assignable for it"; and (7) "whether it
appears excessive in relation to the alternative
purpose assigned." Mendoza-Martinez, 372 U.S. at
168-69.

      The plaintiffs-appellants contend that five of
the seven factors outlined in Mendoza-Martinez
show that the sanction of Section 862a is so
punitive in purpose and effect as to transform it
into a criminal penalty. Specifically, the
plaintiffs-appellants argue that Section 862a:
(1) comes into play only on a finding of
scienter; (2) operates to promote the traditional
aims of punishment; (3) applies to conduct that
is already a crime; (4) is not assignable to an
alternative purpose to which it may be rationally
connected; and (5) seems to be excessive in
relation to any rational purpose that may be
assigned to it. While we agree that the sanction
of Section 862a comes into play only a finding of
scienter, operates to promote the traditional
aims of punishment, and applies to conduct that
is already a crime, we do not agree that the
other two factors cited by the plaintiffs-
appellants indicate a criminally punitive purpose
and effect. Nor do we agree that the three
factors that do tip in the plaintiffs-appellants’
favor demonstrate by the "clearest proof" that
Section 862a functions as a criminal penalty.

      An examination of the Mendoza-Martinez factors
that the plaintiffs-appellants allege indicate a
criminally punitive purpose and effect reveals
that those factors are at best inconclusive. For
instance, because the majority of the underlying
drug offenses that trigger disqualification under
Section 862a contain a scienter requirement, the
statute "comes into play only on a finding of
scienter." LaCrosse, 137 F.3d at 931. However,
this scienter requirement is not conclusive as to
the criminal effect and purpose of the statute.
See id. at 932. Similarly, while it is undisputed
that the statute in question has a deterrent
effect, "the mere presence of this purpose is
insufficient to render a sanction criminal, as
deterrence ’may serve civil as well as criminal
goals.’" Hudson, 118 S.Ct. at 496 (quoting United
States v. Ursery, 518 U.S. 267, 292 (1996)); see
Department of Revenue of Mont. v. Kurth Ranch,
511 U.S. 767, 777 n.14 (1994). Moreover, the mere
fact that the sanction of Section 862a is
triggered by criminal conduct is insufficient to
show that the statute is criminally punitive
because "[i]t is well settled that ’Congress may
impose both a criminal and a civil sanction in
respect to the same act or omission.’" Ursery,
518 U.S. at 292 (quoting Helvering, 303 U.S. at
399); see United States v. Dixon, 509 U.S. 688,
704 (1993) (rejecting "same-conduct" test for
double jeopardy purposes).

      In contrast to the three factors discussed
above, the remaining four factors weigh
decisively in favor of the defendants-appellees.
The Supreme Court has clearly recognized that
"the mere denial of a noncontractual government
benefit" does not constitute an "affirmative
disability or restraint," Flemming, 363 U.S. at
617, and that the denial of such a benefit has
not historically been viewed as punishment. See
id. at 616-17. More significantly, the sanction
of Section 862a rationally promotes alternative
purposes to punishment such as deterring drug use
and reducing welfare fraud, and there is no
indication that the sanction is excessive in
relation to those purposes. Having considered the
sanction of Section 862a in light of the seven
guidelines outlined in Mendoza-Martinez, we
conclude that the plaintiffs-appellants have
failed to establish "by the clearest proof" that
disqualification from food stamps and TANF
benefits under Section 862a serves as criminal
punishment. Section 862a thus functions as a
civil penalty, and we accordingly reject the
plaintiffs-appellants’ double jeopardy claim.

III.   Conclusion

      Because 21 U.S.C. sec. 862a is rationally
related to legitimate government interests in
deterring drug use and reducing welfare fraud,
and because the challenged statute imposes only
a civil sanction on individuals convicted of
drug-related felonies, we AFFIRM the decision of
the district court.



/1 The statute reads in relevant part:

An individual convicted (under Federal or State
law) of any offense which is classified as a
felony by the law of the jurisdiction involved
and which has as an element the possession, use,
or distribution of a controlled substance . . .
shall not be eligible for--

(1) assistance under any State program funded
under part A of title IV of the Social Security
Act, or

(2) benefits under the food stamp program . . .
or any State program carried out under the Food
Stamp Act of 1977.

/2 In Moreno, the Supreme Court addressed the
constitutionality of Section 3(e) of the Food
Stamp Act of 1964, which "denied federal food
assistance" to "individuals who live in
households containing one or more members who are
unrelated to the rest." 413 U.S. at 529. While
considering whether this classification could be
justified by the congressional desire to reduce
food stamp fraud, the Court stated that "[t]he
existence of [anti-fraud] provisions [in the Food
Stamp Act] necessarily casts considerable doubt
upon the proposition that [Section 3(e)] could
rationally have been intended to prevent those
very same abuses." Id. at 536-37. Under the
plaintiffs-appellants’ reading of this holding,
the anti-fraud provisions of the Food Stamp Act
"cast[ ] considerable doubt" on the government’s
contention that Section 862a can be justified by
the desire to reduce food stamp fraud.

      Although we agree with the plaintiffs-appellants
that the anti-fraud provisions of the Food Stamp
Act are a relevant factor in determining whether
Section 862a is rationally related to a desire to
reduce food stamp fraud, we do not think that the
presence of the anti-fraud provisions is
decisive. Moreno did not establish a per se rule
about the constitutionality of additional
measures aimed at preventing food stamp fraud,
nor did that case alter the basic analytical
framework of rationality review. The Moreno Court
ultimately found the classification in Section
3(e) of the Food Stamp Act of 1964 irrational,
and therefore unconstitutional, because "in
practical operation, [Section 3(e)] exclude[d]
from participation in the food stamp program, not
those persons who are ’likely to abuse the
program,’ but, rather, only those persons who are
so desperately in need of aid that they cannot
even afford to alter their living arrangements so
as to retain their eligibility." Moreno, 413 U.S.
at 538. In contrast, Section 862a excludes those
persons Congress deemed most likely to engage in
welfare fraud through the trafficking in food
stamps. The classification contained in Section
862a is thus rationally connected to the desire
to reduce welfare fraud in a way that Section
3(e) of the Food Stamp Act of 1964 was not.

/3 The district court also found that Section 862a
was rationally related to the government’s desire
to conserve federal funds. Although we recognize
that under certain circumstances the government
could rationally determine not to spend limited
program funds to benefit drug offenders, see
Selective Serv. Sys. v. Minnesota Public Interest
Research Group, 468 U.S. 841, 854 (1984); City of
Chicago v. Shalala, 189 F.3d 598, 607-08 (7th
Cir. 1999), we also note that this argument
carried to its extreme would justify any
government decision to deprive certain groups of
the benefit of federal funds. However, because
the challenged statute is justified by the
government’s desire to deter drug use and
decrease welfare fraud, we need not address
whether the classification at issue could be
justified by the government’s desire to conserve
federal funds standing alone. See Lyng v.
International Union, United Auto., Aerospace and
Agric. Implement Workers of Am., UAW, 485 U.S.
360, 373 (1988).
