Fifteen years ago, Adam Pritchard (now a law professor at the University of Michigan) and I had the following op-ed published in the March 15, 1996, edition of the Washington Times:
Would you like to forfeit your house?
March 15, 1996
Section: A COMMENTARY OP-ED
Byline: By Donald J. Boudreaux and A.C. Pritchard
Imagine a guest with a marijuana cigarette secretly tucked in his pocket visits your house. The police storm in, seize the cigarette, and arrest your guest for drug possession. The police then announce that the government now owns your house. “What?!” you wail, “I did nothing wrong. How can you take my house?”
You are told that civil-forfeiture law allows government to take property that harbored an “abatable nuisance” – illegal drugs, in this case. An officer explains that “Your house, not you, committed a wrong. To help stem drug trafficking, it must be seized. Your doubts about our ability to confiscate your property will be dispelled by reading the Supreme Court’s March 4th decision in Bennis vs. Michigan.”
Certain that such tyranny is impossible in America, you rush to read Bennis. Your heart sinks. Chief Justice Rehnquist explains that the Constitution permits Michigan to use civil forfeiture to strip Tina Bennis of her ownership of an automobile in which her husband John had a tryst with a prostitute. Civil forfeiture allows government to take property from someone without convicting that someone of a crime.
Everyone concedes that Mrs. Bennis was unaware that John used the car for illegal sex – for which he was convicted and fined $250. Still, according to the Court, Michigan violated neither the Due Process nor the Takings clauses of the Constitution by taking the innocent Mrs. Bennis’ property without as much as a “thankee, ma’am.” The court reasoned that the state’s confiscation and forfeiture of Mrs. Bennis’ car is constitutional because courts have long upheld civil-forfeiture seizures of some properties. But these were historically confined to properties whose owners could not be tried in domestic courts. Not until Prohibition – long after the Constitution was adopted – did government generally wield civil forfeiture against people who could easily be criminally prosecuted.
Traditionally, no one can be punished unless first convicted. And government cannot convict someone – nor forfeit his property – who is denied an opportunity to defend himself before an impartial jury. But what to do about criminals outside of a domestic court’s jurisdiction? This was a pressing question for courts in cases involving smuggled goods as well as ships used for smuggling or piracy on the high seas. Owners of these properties were typically outside of domestic jurisdiction. Unless the law found a practical way to punish these foreign owners, smuggling and piracy would continue unabated.
Civil forfeiture solved the problem of unreachable wrongdoers. Under civil-forfeiture law, a court declared the property itself to be the wrongdoer. This legal fiction allowed the court to bypass the requirement of convicting the foreign wrongdoer before punishing him. Courts realized that the threat of civil forfeiture made foreign shipowners more reluctant to use their properties wrongfully. Civil forfeiture began here – and here is where it remained until after the Civil War. After the Civil War, civil forfeiture was expanded only far enough to reach property used to evade liquor taxation. Fact is, forfeiture of the properties of domestic citizens did not become widespread until Prohibition, when it was used to punish bootleggers smuggling alcohol.
When the Constitution was adopted, the common law did not condone using civil forfeiture against domestic citizens; therefore, use of civil forfeiture to seize the Bennis automobile is not permitted by the Constitution today. The Bennis criminals – Mr. Bennis and the prostitute – were within Michigan’s jurisdiction, and thus, outside the realm of civil forfeiture.
The Constitution does permit civil-forfeiture seizures of aircraft and similar properties belonging to the likes of Colombian drug lords. Such criminals are precisely the kinds of wrongdoers that civil forfeiture was meant to punish. But by upholding civil forfeiture in cases for which the government can easily prosecute suspected criminals in person – such as in the Bennis ruling – the court unleashes a government power unknown to America’s founding generation.
The Bennis decision frees government to impose huge costs on people never charged with criminal wrongdoing. Governments will respond to this novel constitutional loophole by devising ever more creative ways of preying upon innocent citizens as sources of revenue. A Supreme Court committed to respect legal precedent poorly serves judicial restraint and justice by so carelessly interpreting the tradition it seeks to protect.
Oliver Wendell Holmes observed that “hard cases make bad law.” For Tina Bennis, bad history makes hard law.
Donald J. Boudreaux is Visiting Olin Scholar in Law and Economics at the Cornell Law School. A.C. Pritchard practices law in the Washington office of Bickel & Brewer