SUPREME COURT OF THE UNITED STATES

No. 94–8729

TINA B. BENNIS, PETITIONER v. MICHIGAN

on writ of certiorari to the supreme court of michigan

[March 4, 1996]

Justice Thomas, concurring.

I join the opinion of the Court.

Mrs. Bennis points out that her property was forfeited even though the State did not prove her guilty of any wrongdoing. The State responds that forfeiture of property simply because it was used in crime has been permitted time out of mind. It also says that it wants to punish, for deterrence and perhaps also for retributive purposes, persons who may have colluded or acquiesced in criminal use of their property, or who may at least have negligently entrusted their property to someone likely to use it for misfeasance. But, the State continues, it does not want to have to prove (or to refute proof regarding) collusion, acquiescence, or negligence.

As the Court notes, evasion of the normal requirement of proof before punishment might well seem "unfair." Ante, at 11. One unaware of the history of forfeiture laws and 200 years of this Court's precedent regarding such laws might well assume that such a scheme is lawless—a violation of due process. As the Court remarked 75 years ago in ruling upon a constitutional challenge to forfeiture of the property of an innocent owner:

"If the case were the first of its kind, it and its apparent paradoxes might compel a lengthy discussion to harmonize the [statute at issue] with the accepted tests of human conduct. . . . There is strength . . . in the contention that . . . [the statute at issue] seems to violate that justice which should be the foundation of the due process of law required by the Constitution." J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505, 510 (1921).

But the Court went on to uphold the statute, based upon the historical prevalence and acceptance of similar laws. Id., at 510–511.

This case is ultimately a reminder that the Federal Constitution does not prohibit everything that is intensely undesirable. See, e.g., Herrera v. Collins, 506 U. S. 390, 428, and n. (1993) (Scalia, J., concurring). As detailed in the Court's opinion and the cases cited therein, forfeiture of property without proof of the owner's wrongdoing, merely because it was "used" in or was an "instrumentality" of crime has been permitted in England and this country, both before and after the adoption of the Fifth and Fourteenth Amendments. Cf. Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 619 (1990) (plurality opinion) (a process of law that can show the sanction of settled usage both in England and in this country must be taken to be due process of law) (citing Hurtado v. California, 110 U. S. 516, 528–529 (1884)). Indeed, 70 years ago this Court held in Van Oster v. Kansas, 272 U. S. 465 (1926), that an automobile used in crime could be forfeited notwithstanding the absence of any proof that the criminal use occurred with "knowledge or authority" of the owner. Id., at 466. A law of forfeiture without an exception for innocent owners, the Court said, "builds a secondary defense" for the State "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." Id., at 467–468.

The limits on what property can be forfeited as a result of what wrongdoing—for example, what it means to "use" property in crime for purposes of forfeiture law—are not clear to me. See United States v. James Daniel Good Real Property, 510 U. S. ___, ___ (1993) (slip op., at 2–5) (Thomas, J., concurring in part and dissenting in part). Those limits, whatever they may be, become especially significant when they are the sole restrictions on the state's ability to take property from those it merely suspects, or does not even suspect, of colluding in crime. It thus seems appropriate, where a constitutional challenge by an innocent owner is concerned, to apply those limits rather strictly, adhering to histor-ical standards for determining whether specific property is an "instrumentality" of crime. Cf. J. W. Goldsmith, Jr.-Grant Co., supra, at 512 (describing more extreme hypothetical applications of a forfeiture law and reserving decision on the permissibility of such applications). The facts here, however, do not seem to me to be obviously distinguishable from those involved in Van Oster; and in any event, Mrs. Bennis has not asserted that the car was not an instrumentality of her husband's crime.

If anything, the forfeiture in Van Oster was harder to justify than is the forfeiture here, albeit in a different respect. In this case, the trial judge apparently found that the sales price of the car would not exceed by much the "costs" to be deducted from the sale; and he took that fact into account in determining how to dispose of the proceeds of the sale of the car. The state statute has labeled the car a "nuisance" and authorized a procedure for preventing the risk of continued criminal use of it by Mr. Bennis (forfeiture and sale); under a different statutory regime, the State might have authorized the destruction of the car instead, and the State would have had a plausible argument that the order for destruction was "remedial" and thus noncompensable. That it chose to order the car sold, with virtually nothing left over for the State after "costs," may not change the "remedial" character of the State's action substantially. And if the forfeiture of the car here (and the State's refusal to remit any share of the proceeds from its sale to Mrs. Bennis) can appropriately be characterized as "remedial" action, then the more severe problems involved in punishing someone not found to have engaged in wrongdoing of any kind do not arise.

Improperly used, forfeiture could become more like a roulette wheel employed to raise revenue from innocent but hapless owners whose property is unforeseeably misused, or a tool wielded to punish those who associate with criminals, than a component of a system of justice. When the property sought to be forfeited has been entrusted by its owner to one who uses it for crime, however, the Constitution apparently assigns to the States and to the political branches of the Federal Government the primary responsibility for avoiding that result.