The Perils of Civil Asset Forfeiture.

• Author: Luna, Erik

My presentation will focus on civil asset forfeiture, which is the law enforcement seizure of private property suspected of involvement in criminal activity and the use of civil or administrative proceedings to forfeit such property to the government. (1) Typically, the actions are brought against the property in rem rather than against the owner in personam, (2) which, combined with the civil classification, allows the government to dispense with a number of rights that are typically provided to defendants in criminal proceedings. (3)

Over the years, this type of forfeiture has generated a series of troubling cases. Let me tell you about one such incident, the case of poor Tina Bennis. (4) One evening, her husband, John Bennis, failed to return home as expected, prompting his worried wife to call a missing persons line. (5) As it turned out, Tina's husband had gone on a forbidden frolic. (6) Police officers had observed a woman flagging down motorists from a street corner until John stopped to pick her up. (7) Further surveillance found the two involved in a sex act, and John Bennis was subsequently convicted of gross indecency. (8)

For Tina, it was bad enough that she had been betrayed by her husband, caught with a prostitute in the family car. (9) But then law enforcement sought to take Tina Bennis's second-hand 1977 Pontiac--a car purchased primarily through Tina's babysitting earnings--because it was the site of her husband's illicit sex act. (10) To the state courts, it did not matter that Tina was patently innocent, as the relevant statute did not require any showing with respect to her knowledge of criminal activity. (11)

In a 1996 case, Bennis v. Michigan, (12) the U.S. Supreme Court rejected Tina's claim that the forfeiture of her interest in the car was unconstitutional in light of her acknowledged innocence. (13) While recognizing the considerable appeal of Ms. Bennis's claim, the Court reasoned 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." (14) In effect, the Court placed its imprimatur on a type of strict vicarious liability where an innocent individual can be penalized for the wrongs of someone else. In a dissenting opinion, Justice Stevens argued that "[t]he logic of the Court's analysis would permit the States to exercise virtually unbridled power to confiscate vast amounts of property." (15)

As it turns out, the long line of cases referenced by the Bennis majority was based on, among other things, the ancient common law fiction of "deodand," the idea that property itself can be guilty. (16) In a 1974 case, the Supreme Court described this history as follows:

At common law the value of an inanimate object directly or indirectly causing the accidental death of a King's subject was forfeited to the Crown as a deodand. The origins of the deodand are traceable to Biblical and pre-Judeo-Christian practices, which reflected the view that the instrument of death was accused and that religious expiation was required. The value of the instrument was forfeited to the King, in the belief that the King would provide the money for Masses to be said for the good of the dead man's soul, or insure that the deodand was put to charitable uses. (17) Under the deodand fiction, the property--not the property owner--is considered liable. (18) Now, I am a fan of history as much as anyone in this room, but judicial reliance on this particular fiction offers a dubious historical rationale for forfeiture law in the United States. After all, the English Crown's passion for seizing property caused American colonists to view forfeiture with great suspicion. (19)

Worse yet, the deodand fiction allows forfeitures to be characterized as civil remedies rather than criminal penalties. Labeling forfeitures as civil in nature certainly promotes government expedience by freeing the state from the substantial bur-burdens of typical criminal cases. Forfeiture proceedings need not provide property owners many of the constitutional guarantees afforded criminal defendants, (20) including, for instance, the right to counsel and the protection against double jeopardy. (21)

Perhaps the most important consequences stem from dispensing with individual culpability and the...