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.

Addendum

In response to Stefan Cassella's "Forfeiture Is Reasonable, and It Works," which is a lengthy criticism of my essay above, I should note first that my essay was written as a critical review of the three forfeiture opinions the Supreme Court handed down in its 1995 Term, not as a general critique of forfeiture law. (For that, see my "Can American Asset Forfeiture Law Be Justified?" 49 New York Law School Law Review 311 (1994).) Nevertheless, Mr. Cassella presents a general defense of forfeiture, using as his foil certain points I only mention above. Thus, I appreciate this opportunity to expand upon those points.

An "informed debate" is welcome, Mr. Cassella tells us, but not one "muddled by the misconceptions and plain old-fashioned misstatements that seem to pop up in every article critical of asset forfeiture," of which mine, "containing the usual parade of horribles, is a good example." (Sensitivity to criticism aside, "every" article?) "Greatly mistaken," "preposterous," "just plain wrong"--in the interest of injecting "a little truth and understanding into the debate," Mr. Cassella takes off the gloves. I am fortunate to be able to keep mine on as Mr. Cassella's arguments, once exposed, will do the work for me.

Justification

In a free society, government power--especially the power to seize private property for forfeiture to the government--is not a given. It must be justified. Yet nothing is so clear in Mr. Cassella's essay as that he hasn't a clue about the business of justification. Thinking like the government agent he is, his only concern is with forfeiture's use as a "tool" in the war on crime--and in the endless war on drugs, in particular. From beginning to end his argument is pragmatic. Look at his title. It is as if the idea that what he is doing (or proposing) needs to be justified in anything more than a crude utilitarian way never crossed his mind. Indeed, because he does not go to the root of the matter--to the theory of forfeiture--his argument turns upon itself in the end, as we shall see, its author oblivious to that result.

No one doubts that forfeiture is a useful tool against crime. Over the years, the rack, the thumbscrew, and the police state too have proven useful to that end. Usefulness aside, what disturbs so many about forfeiture is its implications for the rights of the innocent and the guilty alike. When forfeiture is used to confiscate the property of innocent people, to deny due process to both the innocent and the guilty, and to impose disproportionate sanctions on the guilty, one wants to know what, if anything, justifies it.

As a stab at that question--a mere stab--Mr. Cassella lists six "rationales" for forfeiture: to seize contraband, to abate nuisances, to take the instrumentalities of crime, to take the profit out of crime and return property to victims, deterrence, and punishment. Presumably, the justificatory force of those reasons is something close to "self-evident" for him, for he presents them with little dressing.

To be sure, two of the rationales may be close to self-evident. On the assumption that "contraband" makes sense in a free society--and even then, not everything on Mr. Cassella's list should be there--government forfeiture would seem to follow. Similarly, the return, through forfeiture, of ill-gotten goods--properly defined and with sufficient due process--presents little problem for the rights of owners--in fact, it enhances them.

But nuisance abatement through forfeiture? Ordinarily we don't take property for that purpose; we simply enjoin the offensive use, leaving the property with its owner, to use in some other way. As for "instrumentalities"--forfeiture's notorious "facilitation" doctrine--this boundless rationale is the source today of most of the outrage. Far from self-evident, it cries out for justification. And it does so especially when combined with the deterrence and punishment rationales. Those rationales have never been part of forfeiture's justification in principle, as the Court has repeatedly said--then denied in a logical pirouette that makes "little sense," as Justice Stevens rightly put it.

Indeed, to recur to Bennis above, what was the point of taking Mrs. Bennis's half-interest in her car? To deter her? From what? To punish her? For what? The gap from the premise that a car, plane, ranch, hotel, or ocean liner "facilitates" a crime to the conclusion that it is, therefore, forfeitable to the government is fairly yawning, not self-evident, and no argument from utility will bridge it--not, that is, if we're serious about justification.

Rather than address that problem directly, however, Mr. Cassella gleans from my essay a "parade of horribles." "We are told," he says, (a) "that forfeiture is based on an absurd legal 'fiction' that the property is guilty of the crime, which means that property can be forfeited without proof that a crime was committed by a real live person;" (b) "that the government can seize property 'almost at will,' i.e., without due process, and that innocent people find the process so unfair that they walk away from their property without filing claims;" and (c) "that even when they do file claims, innocent owners just don't have any rights." Let's look closely to see whether Mr. Cassella has stated my objections correctly and whether his answers hold up.

An Absurd Legal "Fiction"?

Mr. Cassella tells us, as if we needed instruction on the point, that "property doesn't commit crimes; people do." Just so. But why then file an action against the property? Ignoring the in rem history of forfeiture, Mr. Cassella would have us believe that "the legal 'fiction' that the property is 'guilty' of the crime is simply a shorthand for the way a civil forfeiture case is styled." Really? You mean that all these years, through "a long and unbroken line of cases...too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced," as the Bennis Court put it, we've been wrong in believing that "the thing is here primarily considered as the offender"?

On one point, of course, Mr. Cassella is right: the fiction is an absurdity. But it's not a mere point of "style." It's the law. And Mr. Cassella himself is not above resorting to that law when it serves his purpose. Thus, he asks, "If all forfeitures involve the commission of a crime, and the vast majority involve an arrest or prosecution, why does the government do civil forfeiture at all?" Why not just do criminal forfeiture by including a forfeiture count in a criminal indictment? Why not?

The "most important" reason, he says, is because "criminal forfeiture is limited to the property of the defendant. If the defendant uses someone else's property to commit the crime, criminal forfeiture accomplishes nothing [for the government]. Only civil forfeiture will reach the property." (original emphasis) That is a striking admission. Indeed, notice precisely what Mr. Cassella is saying here. Proceeding "normally," against the accused--remember, only people commit crimes -- we can't reach the property of someone else. What a surprise! People get to keep their property unless they've done something to lose it. That's what we call the rule of law. Mr. Cassella, however, wants to get around that rule: "if a drug dealer uses an airplane to smuggle drugs into California, the government has an interest in seizing and forfeiting the plane," even if it belongs to someone else. Why? If A violates the law, why take B's property? Because the property "facilitates" the crime? We're right back where we started from --needing to justify the facilitation doctrine.

In fact, it is here, precisely, that Mr. Cassella's argument turns upon itself. He wants, rightly, to abandon the absurd "fiction" that the property is guilty. But he can't, because then he would have no reason--no justification -- for seizing property that belongs to someone accused of no crime. Yet if he resorts to the facilitation doctrine -- the very doctrine that needs to be justified, not assumed--then he's right back with the legal fiction that has always been thought to underpin the doctrine.

Mr. Cassella's argument, in short, is circular. At least the standard rationale for the facilitation doctrine makes a stab at justification by invoking the legal fiction that property that facilitates crime is "guilty"--however absurd that fiction may be. Mr. Cassella's approach abandons that fiction. But the price of doing so is to reveal facilitation forfeiture for the naked power it always was and still is: "A used B's plane to commit a crime; whether or not we prosecute A, we want B's plane." Why punish B? "We're not punishing B since the action is brought against the property, not B." And on and on, in a vicious circle of argument that no one any longer believes, if ever anyone did, even if the Court continues to parrot the rhetoric.

My point in raising the absurd "fiction" in the essay above, then, was not to defend it --far from it -- but to shine light on the equally absurd facilitation doctrine it purports to support. That the facilitation doctrine rests on a house of cards in nowhere more evident than in the Court's strained efforts to apply it, as outlined above under "Disquieting Implications." Under the doctrine the Court has allowed the seizure of boats and even yachts. But ocean liners? "When such application shall be made it will be time enough to pronounce upon it," Chief Justice Rehnquist says. So much for the rule of law.

Due Process?

Once the absurdity of the facilitation doctrine is exposed, those who want to salvage it invariably turn their attention to something the otherwise innocent owner may have done, some "guilt" of his, even though, strictly speaking, that is irrelevant to the doctrine--and efforts to address the question fit uneasily into in rem proceedings. But historically, a concern for innocent owners has come only very recently, through statute, where it has come at all. Before turning to those spotty statutory developments, however, we need to take up the disturbing procedural issues that Mr. Cassella has conflated in each of his three restatements of my objections to forfeiture.

He is right to say, of course, that property cannot be seized, exigent circumstances aside, "without proof that a crime was committed by a real live person." But that statement about "proof" overstates the matter by a wide margin, as we shall see. Moreover, as counterpoint, it misstates what I said. I never said that under current law no proof of any kind is required to seize property. Nor did I say that government's power to seize property "almost at will" meant "without due process"; it was not for nothing that I used the word "almost." Finally, Mr. Cassella has me saying that "officials can 'seize property, real of personal, without notice or hearing'"--leaving off the rest of the sentence, "upon an ex parte showing of mere probable cause to believe that the property has somehow been 'involved' in a crime."

Clearly, the issue here is not whether there is any process in a typical forfeiture action, but just how much and what kind of process should be due. More deeply, however, it is also whether, given the substantive law, process even matters--a point Mr. Cassella seems not to have grasped. To read him, one would think that the process now afforded defendants and nondefendants alike is just about right; yet we know that at every step of the way the Department has fought both procedural and substantive changes in forfeiture law. Against me, for example, Mr. Cassella cites the 1993 Daniel Good case, which requires that owners be given notice and an opportunity to be heard before real property can be seized; what he fails to note is that the Department argued against that result all the way to the Supreme Court.

To put the procedural and substantive concerns together in a single question, how could it be right--as it is today in many states and still is under some federal statutes--to seize a person's property through an ex parte proceeding at which the standard of proof is mere "probable cause" about the property's "involvement" in a crime--and afford that person no ground for subsequently reclaiming his property? To be sure, there is a "process"--ex parte

--and it does require "proof"--at the lowest possible level, and not necessarily about anything the owner may have done. In a free society, however, it is hardly the process and the proof we should think sufficient to seize a person's property.

Mr. Cassella attempts to assure us, of course, that the owner can always contest a seizure. But that is not the case where no innocent owner defense is available. That was the whole point above, in my discussion of Bennis. Mr. Cassella has me making "a persuasive argument that the Constitution does not adequately protect innocent owners in civil forfeiture cases." I make no such argument. In fact, in my view the Constitution does protect innocent owners like Mrs. Bennis through a properly read Fourteenth Amendment (both the Privileges and Immunities and the Due Process Clauses), which would negate the facilitation doctrine. But that's not the point here. Rather, the point is that, given the facilitation doctrine, and the absence of an innocent owner defense, no process in the world could have saved Mrs. Bennis: however innocent she may have been, her property did, after all, "facilitate" the crime.

Innocent Owners and Due Process

Given the substantive law, then, the sufficiency of any process that may be available is not the issue if no innocent owner defense is available: for whatever the process, there's nothing for owners to prove through it; we're back to the fiction; the property is guilty. But even when an innocent owner defense is available, both the substantive and the procedural law make it an uphill battle for owners to reclaim their property once the government has seized it.

There are two reasons for this. First, the standard innocent owner defense places the burden of proof on the owner, not on the government, and the standard is high: the owner must prove, not by a probable cause standard but by a preponderance of the evidence, that he neither consented to the use to which his property was put nor knew about its use. Mr. Cassella makes light of this burden of proving a negative. Yet in response to my claim that "hotels and apartment buildings are today forfeited when their owners are unable to prevent drug transactions in them ," which he says "is just plain wrong," the first case he cites is one in which the owner was unable to carry out his burden. (See also Seth Faison, "In Largest Takeover Under Narcotics Law, U.S. Seizes a Large New York City Hotel," New York Times, June 9, 1994, at A1, B3.)

But in all of this Mr. Cassella has utterly ignored the practical implications of this set up, which brings us to the second reason owners face an uphill battle getting their property back, even when an innocent owner defense is available. Let's be realistic: it's no small matter to go up against a government--federal, state, or local--that has just seized your property, especially if the seizure leaves you penniless, as it sometimes does, and especially if the cost of recovery might exceed the value of the property, as if often does. Is it any wonder that innocent owners often walk away from their losses? Mr. Cassella is simply oblivious to this point.

But there are still other practical impediments for innocent owners, the full measure of which Mr. Cassella himself brings out, without noticing it, in his discussion of the three types of forfeiture--administrative, civil, and criminal. If the owner does not challenge the seizure, Mr. Cassella tells us, his property forfeits to the government in an administrative, "default" proceeding. But if the owner does challenge the seizure, the government can get rough by filing a civil complaint against the property or, even worse, by including a forfeiture count in a criminal indictment. Think about it. "Complain about our seizure of your property and we'll file a civil complaint against it, putting you to the burden of proving your innocence; or perhaps we'll file a criminal indictment against you--however thin the evidence--or both. Why don't you go easy on yourself and just walk away?" Doesn't happen--federal, state, or local? Lord Acton spoke to that matter. So much power in the hands of government, especially where departments literally keep the property, has got to corrupt. As Chairman Henry Hyde's book shows, again and again, it does.

In sum, Mr. Cassella paints a seemingly reasonable picture of a useful "tool" in the war on crime. Closer examination, however, shows forfeiture to be fraught with peril. Originating in this country with the practical problem of reaching distant owners in the customs context, its roots are far more remote than that. It has grown over the years--especially during the era of alcohol prohibition and, today, in the era of drug prohibition--into a weapon not simply against crime but against the rule of law itself. Yet a good part of what we do today through forfeiture can be done through more legitimate, more justifiable means. In the end, forfeiture does not need to be reformed. It needs to be relegated to the dustbin of history from which it came and replaced by sound principles of law. Government needs tools, to be sure, but in a free society they must be legitimate.