The Supreme Court rejects Fifth and Fourteenth Amendment protection against the forfeiture of an innocent owner's property.

• Author: Brodey, Jami
• Position: Supreme Court Review

1. INTRODUCTION

   In Bennis v. Michigan(1) the Supreme Court upheld the forfeiture of an automobile in which one of the joint owners engaged in a sexual act with an alleged prostitute, notwithstanding the other owner's lack of knowledge of the misuse of the car.(2) In so holding, the Court rejected the innocent owner's contention that the forfeiture violated the Due Process Clause of the Fourteenth Amendment and the Takings Clause of the Fifth Amendment.(3)

   In analyzing the petitioner's constitutional claim, Chief justice Rehnquist, writing for a five-person majority, relied heavily on a "long and unbroken line" of precedent rejecting an innocent owner defense to civil forfeiture actions.(4) The Court concluded that the judicial acceptance of such forfeitures is "too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced."(5)

   This Note argues, first, that the forfeiture of Mrs. Bennis's interest in the automobile is not supported by the justifications traditionally provided by the Supreme Court for abating an innocent owner's interest in property. Additionally, this Note asserts that, based on Austin v. United States,(6) the majority should have analyzed the forfeiture of Mrs. Bennis's interest in the car within the framework of the Excessive Fines Clause of the Eight Amendment. Finally, this Note contends that the Eight Amendment should have compelled the Court to remand the case to the trial court for determination of the punitive nature of the forfeiture and its proportionality to the offense.

2. BACKGROUND

   Civil forfeiture in the United States developed from English common law.(7) Under English law, there were three types of forfeiture: (1) deodand;(8) (2) escheat upon attainder;(9) and (3) statutory forfeitures of "offending objects used in violation of the customs and revenue laws."(10) Of the three types of forfeiture, only statutory forfeiture was incorporated into American law.(11) However, the courts initially used the rationales underlying deodands and escheat upon attainder, namely that the property itself is guilty and that a wrongdoer could legitimately be deprived of his property, respectively, as justification for statutory forfeitures in the United States.(12)

   1. JUSTIFICATION FOR THE FORFEITURE OF AN "INNOCENT OWNER'S" PROPERTY

      Statutory forfeiture in the United States was established early in the country's history and its practice has continued and expanded over time.(13) As the Supreme Court noted in Calero-Toledo v. Pearson Yacht Leasing Co.:(14)

      "[L]ong before the adoption of the Constitution the common law courts

      in the Colonies--and later in the States during the period of the Confederation--were

      exercising jurisdiction in rem in the enforcement of

      [English and local] forfeiture statutes," which provided for the forfeiture

      of commodities and vessels used in violations of customs and revenue

      laws. And, almost immediately after adoption of the Constitution, ships

      and cargoes involved in customs offenses were made subject to forfeiture

      under federal law, as were vessels used to deliver slaves to foreign countries,

      and somewhat later those used to deliver slaves to this country.

      The enactment of forfeiture statutes has not abated; contemporary federal

      and state forfeiture statutes reach virtually any type of property that

      might be used in the conduct of criminal enterprise.(15)

      Despite the potential reach of forfeiture statutes, the Supreme Court has consistently upheld forfeiture statutes when confronted with constitutional challenges by innocent owners.(16) In so doing, the Court has usually justified the forfeiture on either of two grounds: (1) that the property itself is guilty of the offense; or (2) that the property owner may be held accountable for the wrongdoings of those to whom he entrusts his property.(17)

      1. The Guilty Property Fiction

         The earliest American civil forfeiture cases justifying the forfeiture of an innocent owner's property were condemnation actions against ships for acts of piracy or violations of United States customs laws.(18) In upholding such forfeitures, the Supreme Court invoked the "guilty property" fiction to justify in rem proceedings directly against the ship, rather than in rem proceedings against the ship-owners.(19) The in rem nature of the admiralty proceedings dispensed with the requirement of proving any underlying wrongdoing on the part of the property owner.

         In The Palmyra,(20) the United States Supreme Court determined that a statutory, in rem forfeiture of property was `independent of, and wholly unaffected by any criminal proceeding in personam" against the property owner.(21) Pursuant to an act of Congress authorizing the capture and condemnation of any vessel from which piratical aggression was attempted or made, the United States sought the forfeiture of a ship, The Palmyra, suspected of privateering(22) under a commission from the King of Spain.(23) The ship owner asserted that the government could not maintain the condemnation action because he had not been criminally convicted of privateering.(24) Rejecting this contention, the Court reasoned that "[t]he thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing."(25) Furthermore, the Court noted that acceptance of the ship owner's argument would prohibit the forfeiture of any vessel pursuant to the act of Congress because there was no authorization for the criminal punishment of one who commits piratical aggression.(26) Since such a requirement would make the statute inoperable, the Court held that a criminal conviction was not necessary to enforce an in rem forfeiture of this nature.(27)

         Similarly, in Harmony v. United State.(28) the Court upheld the forfeiture of a ship for am of piracy notwithstanding the ship owners' lack of knowledge or authorization of the aggressions.(29) In Harmony, a ship, armed with the usual equipment for an innocent commercial voyage, committed acts of aggression that were admittedly outside the contemplation of the ship owner.(30) The Court reasoned that treating the vessel as the offender was the "only adequate means of suppressing the offence or wrong, or insuring indemnity to the injured party."(31) As further support for attaching the offense to the vessel, the Court reasoned that, because a ship is guided by its crew and master, it was not unreasonable that the master's actions affect the ship.(32)

         Outside the realm of admiralty law, the Court continued to premise the forfeiture of illegally-used property on the notion that the offense attaches directly to the property.(33) In addition, the Court began to examine the relationship between the property owner and the person using the property illegally.(34) In Dobbin's Distillery v. United States,(35) the Court upheld the forfeiture of the real and personal property of a distillery occupied and operated by a lessee who failed to maintain the distillery's business records in accordance with United States revenue laws.(36) The Court maintained that the forfeiture action attached to the distillery and did not require proof of the lessor-owner's knowledge that the lessee committed fraud upon the government.(37) The Court explained that the fact that the lessor-owner consented to his land being used as a distillery put him in the same place as if he was the distiller, and subjected the land to forfeiture just as if the distiller was the owner.(38) In conclusion, the Court determined that by virtue of the lease, the acts of the lessee bind the lessor-owner and the consequences to the property were the same as if the owner committed the illegal acts.(39)

      2. The Entrustment Theory

         Although the use of the "guilty property" fiction in American civil forfeiture actions operates under the premise that the guilt or innocence of the property owner is irrelevant, the Supreme Court's application of the "guilty property" fiction rests on the "notion that the owner who allows his property to become involved in an offense has been negligent."(40) Thus, while not requiring a showing of guilt on the part of the property owner, in the later cases upholding the forfeiture of an innocent owner's property, the Court investigated whether the property owner actually entrusted the misused property to the wrongdoer.(41) Upon finding an entrustment by an innocent owner, the Court justified forfeiture as a means of deterring owners from transferring their property to those who may misuse it.(42)

         In Van Oster v. Kansas,(43) the Court, in upholding the forfeiture of an automobile used to transport alcohol illegally, offered a rationale other than the "guilty property" fiction for allowing the forfeiture of property misused without the owner's knowledge or consent.(44) The Court determined that the government was justified in `visiting upon the owner of property, the unpleasant consequences of the unauthorized action of one to whom he has intrusted [sic] it."(45) The Court began by noting that a State's police power permits it to declare certain uses of property undesirable and to subject the property to forfeiture if the owner so uses it.(46) The Court then reasoned that an owner surrenders control of his property at his own peril and, by subjecting property to forfeiture for the illegal acts of those to whom the property is entrusted, the law "builds a secondary defense against a forbidden use and precludes evasions by dispensing with the necessity of judicial inquiry as to collusion between the wrongdoer and the alleged innocent owner."(47) As such, the Court determined that the State validly exercised its police power by forfeiting the car.(48) For that reason as well as the well-settled precedents allowing forfeiture of property entrusted by innocent owners to wrongdoers,(49) the Court held that the forfeiture did not violate the Due Process Clause of the Fourteenth Amendment.(50)

         Similarly, in Calero-Toledo v. Pearson Yacht Leasing...