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Forfeiting Reason

Criminal Law & Procedure Practice Group Newsletter - Volume 1, Issue 2, Spring 1997
By Roger Pilon
May 01, 1997

If ever one wanted a glimpse of judicial reasoning gone awry, one could hardly do better than turn to the three forfeiture cases decided by the United States Supreme Court late in the 1995 Term. Two terms ago, when the Court issued four other forfeiture rulings, it looked like this bizarre area of law might soon be rethought from the ground up. For the moment, however, those hopes have been dashed by no less than the chief justice himself, the author of the latest opinions.

Guilty Things

Under forfeiture, law enforcement officials can seize "guilty property" almost at will. Originating in the Old Testament and the medieval doctrine of "deodands"--in the idea that animals and even inanimate objects involved in wrongdoing could be sacrificed in atonement or forfeited to the Crown--modern forfeiture law earned its credentials through early American admiralty and customs law, enduring and expanding thereafter with little restraint. It has always been used against "morals" crimes, but not there alone. Today, as during Prohibition, it has come into its own in the endless War on Drugs. Police and prosecutors love forfeiture as a "tool of the trade" and a source of vast revenues that directly enrich their coffers. Victims of all kinds, especially innocent victims, are left reeling in the wake.

The very names of the relatively few cases that make it to court tell the story: United States v. $405,089.23 in United States Currency; United States v. 92 Buena Vista Avenue; United States v. One Mercedes 560 SEL. Civil forfeiture actions are brought against the property, not against the individual. They are in rem proceedings--not for the purpose of gaining jurisdiction over a real person but for the purpose of seizing property for forfeiture to the government. Fantastic as it may sound, it is the property that is charged.

Under this law, officials can seize a person's property, real or chattel, without notice or hearing, upon an ex parte showing of mere probable cause to believe that the property has somehow been "involved" in a crime. Neither the owner nor anyone else need be charged with a crime because the action is against "the thing." The showing could allege that the property is contraband, that it represents the proceeds of crime (even if in the hands of someone not suspected of criminal activity), or that it was somehow "used" in crime. And probable cause may be based on nothing more than hearsay, innuendo, or even the paid, self-serving testimony of a party with interests adverse to those of the property owner.

Once the property is seized, the burden is upon the owner, where permitted, to prove his innocence--not by a probable-cause but by a preponderance-of-the-evidence standard. In defending his innocence, the owner must prove a negative, of course. Moreover, he will be up against the overwhelming resources of the government. And if he has been involved in any activity that might lead to criminal charges, however trivial or baseless those charges may ultimately prove to be, he has to weigh the value of the property against the risk of self-incrimination entailed by any effort to get it back. As a practical matter, the burden is often too high for many innocent owners, who end up walking away from their losses.

Sex in a Car

In the first of the Court's latest cases, Bennis v. Michigan, Mrs. Tina Bennis found herself on the wrong end of a Michigan law when Detroit police charged her husband with engaging a prostitute in the family car. After convicting him of gross indecency, the state brought an action to have the car forfeited as a public nuisance due to its "use" in the crime. A victim of her husband, Mrs. Bennis was now a victim of the state, which took her half-interest in the car. There being no innocent-owner defense available to her under the statute, Mrs. Bennis contested the forfeiture by claiming, among other things, that it deprived her of her property without due process of law as protected under the Fourteenth Amendment.

In writing for the majority of five that found Mrs. Bennis's claim without constitutional merit, Chief Justice Rehnquist sought the aid of authority--of "long-standing practice"--no fewer than ten times over his brief eleven-page opinion. In fact, the opinion is little but a sustained argument from authority, from "a long and unbroken line of cases" that includes one in which a woman purchased a car from a dealer who, while entrusted with the car, allowed it to be used for the illegal transportation of liquor, resulting in its forfeiture to the state; and another in which a leased yacht was lost after it was used by the lessee to transport marijuana in direct violation of the ship's lease. In a recent book, Forfeiting Our Property Rights, published for the Cato Institute, Congressman Henry J. Hyde catalogues a long list of far worse cases: police who stop motorists and seize their cash on the spot; agents who destroy boats, cars, homes, and airplanes, and even kill and maim in the name of forfeiture. Such is the history of a body of law that is "too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced."

What that law says is that Mrs. Bennis is effectively out of court. The essence of her due process claim, Rehnquist notes, "is not that she was denied notice or an opportunity to contest the abatement of her car; she was accorded both. Rather, she claims she was entitled to contest the abatement by showing she did not know her husband would use [the car] to violate Michigan's indecency law." It is here, precisely, that "a long and unbroken line of cases holds that an owner's interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use." Thus, the process Mrs. Bennis was due was essentially pointless: once it had been determined that the car had been so used, nothing Mrs. Bennis could have said at any proceeding would have made a difference; for as the Court said in 1827 in the famous case of The Palmyra, "the thing is here primarily considered as the offender."

Disquieting Implications

Through the years, not surprisingly, the Court has struggled mightily with that fiction. Even in Bennis, for example, Rehnquist tries to correct a 1993 Court observation that in a 1921 case the Court had "expressly reserved the question whether the [guilty-property] fiction could be employed to forfeit the property of a truly innocent owner." That observation "is quite mistaken," Rehnquist says, for the 1921 Court expressly reserved opinion about whether forfeiture "can be extended to property stolen from the owner or otherwise taken from him without his privity or consent." One may ask whether there is any real difference between those two reservations. But regardless, the distinction Rehnquist then draws between property that is "used without the owner's consent," where the question of forfeiture's application is reserved, and property that is "used in a manner to which the owner did not consent," where forfeiture is applied, should be utterly irrelevant. For if the property is guilty--that is forfeiture's premise--it matters not at all whether it was stolen or merely "entrusted."

Not even Rehnquist appears willing to follow the logic of the argument, however. Thus, he answers Justice Stevens's suggestion, in dissent, that this law "would justify the confiscation of an ocean liner just because one of its passengers sinned while on board" with a dodge: "When such application shall be made it will be time enough to pronounce upon it." (Let the record show that hotels and apartment buildings are today forfeited when their owners are unable to prevent drug transactions in them.) And in a move that only muddies the foundations of this law, Rehnquist notes that "forfeiture also serves a deterrent purpose distinct from any punitive purpose." Absent any knowledge of what her husband was up to, it is hard to imagine what Mrs. Bennis might have done, under the threat of forfeiture, to deter his assignation. That she was punished by the law, however, is beyond any doubt.

Does Forfeiture Punish?

Or is it? We come thus to the other two cases in this term's forfeiture trilogy, United States v. Ursery and United States v. $405,089.23 in United States Currency, which were consolidated in a single opinion because they raised the same question: Do civil forfeitures constitute "punishment" for purposes of the Fifth Amendment's Double Jeopardy Clause? Notwithstanding the admission just noted from Bennis, Rehnquist concluded, this time with all but Justice Stevens on board for at least the judgment, that civil forfeitures do not constitute punishment and so are not subject to the strictures of the Double Jeopardy Clause.

That clause prohibits the government, as the Court recently put it, from "punishing twice, or attempting a second time to punish criminally for the same offense." In Ursery, the Sixth Circuit had cited double jeopardy to reverse Guy Ursery's conviction and sixty-three-month sentence for manufacturing marijuana because Ursery had already been punished by the forfeiture of his home following its use in the crime. In $405,089.23, the Ninth Circuit had cited double jeopardy to reach the converse result, reversing the forfeiture of money and other property involved in money laundering and in a conspiracy to aid and abet the manufacture of methamphetamines because the owners of the property had already been punished following their convictions for those crimes--life in prison and a ten-year term of supervised release in one case, life in prison and a five-year term of supervised release in the other.

In reaching their decisions, however, the two circuits had misread three recent opinions, Rehnquist says. In United States v. Halper (1989), the Court had held that a disproportionate civil penalty was punishment and thus implicated the Double Jeopardy Clause. In United States v. Austin (1993), the Court had held that civil forfeiture under the drug statute before it "constitutes 'payment to a sovereign as punishment for some offense' and as such, is subject to the limitations of the Eighth Amendment's Excessive Fines Clause." And in Department of Revenue of Montana v. Kurth Ranch (1994), the Court had held that a marijuana tax motivated by a "penal and prohibitory intent" makes the proceeding that imposes it on someone already convicted of possession "the functional equivalent of a successive criminal prosecution" in violation of the Double Jeopardy Clause.

But none of those cases, Rehnquist notes, involved in rem forfeitures for double jeopardy purposes. What the circuits should have done, he says, is follow three cases that begin with Various Items of Personal Property v. United States (1931) and end with United States v. One Assortment of 89 Firearms (1984). In Various Items, the Court laid down the rule: Because forfeiture is against "the property," which is "held guilty and condemned as though it were conscious instead of inanimate and insentient," it is "no part of the punishment for the criminal offense." Thus, double jeopardy does not apply. In 89 Firearms--where the owner of the "defendant weapons" had already been acquitted of charges of dealing firearms without a license--the Court found that the government's subsequent forfeiture action did not violate the Double Jeopardy Clause because Congress intended forfeiture to be a remedial civil sanction, because forfeiture reached a broader range of conduct than its criminal analogue, and because it furthered such "broad remedial aims [as] discouraging unregulated commerce in firearms."

If this all sounds result-oriented, and not a little circular, it is no accident. The Court says, in effect, that forfeiture is civil and remedial, not punitive, because Congress and courts from time immemorial have said it is. More than circular, however, the argument is often incoherent. Thus, when the Court says that a forfeiture may be subject to the Double Jeopardy Clause if it is "so punitive" as to be equivalent to a criminal "proceeding" [sic]--as if punishment of any degree, as distinct from restitution, did not require the greater scrutiny of a criminal proceeding--we have yet another indication of a court without a systematic theory of remedies. Indeed, "remedial," for the Court, pertains not simply to righting or remedying wrongs--as in making victims whole--but to advancing public purposes like "discouraging unregulated commerce." In the end, it comes as no small relief to discover Justice Stevens noting, in dissent, that the Court's conclusion that forfeiture is punishment "for purposes of" the Excesses Fines Clause but not "for purposes of" the Double Jeopardy Clause makes "little sense."

The beauty of discerning only distinctions and differences, of course, is that you can find a reason for every result--or, less charitably, a principle for every fact pattern. Unlike the search for organizing principles, it is a method ideally suited for ad hoc jurisprudence. But perhaps the concurrence of Justice Kennedy best illuminates this law. Forfeiture is "not directed at those who carry out the crimes," Kennedy says, "but at owners [like Tina Bennis] who are culpable for the criminal misuse of the property." (And Kennedy dissented in Bennis!) Wrong on both counts, Kennedy then adds that forfeiture "does not depend upon or revive the fiction that the property is punished as if it were a sentient being capable of moral choice. It is the owner who feels the pain and receives the stigma of the forfeiture, not the property." Fortunately, the fiction today is gone. Only its implications remain, to give pain to property owners--but not for double jeopardy purposes.

*Roger Pilon directs the Cato Institute's Center for Constitutional Studies. This article is reprinted, with permission, from Regulation, Vol. 19, No. 3, pp. 15-19, 1996.