Injustice for All: Bennis vs.

Michigan

By Steven L. Kessler

Article Posted 6/25/96

You and your husband own a 1977 Pontiac, valued at $600. It's not much,
but it's transportation. Unbeknownst to you, your husband drives your set
of wheels to the seedy side of town, picks up a prostitute and shares with
her a degree of intimacy on the front seat. The illegal act is observed by a
local police officer, who arrests your husband. Ultimately, he is convicted
of gross indecency.
You might think that your biggest concern is what to tell the kids when you
file for divorce. And, on March 3, 1996, you might have been right. But no
more.
On March 4, 1996, in Bennis v. Michigan, the United States Supreme
Court held that there was nothing wrong with the government forfeiting the
car of a woman whose husband had sex in the car with a prostitute without
his wife's knowledge or consent. Chief Justice Rehnquist, writing for the 5-
person majority, said forfeiture had nothing to do with the owner's
culpability. The property was the offending party and, consequently, the
property, not its owner, was being punished.
In a vacuum, in an academic discussion group or on Mars, such an
analysis may seem reasonable. Yet, we all understand that the Bennis' car
did not drive to the location on its own, did not pick up the prostitute on its
own and did not involve itself in the dirty deed without assistance. This
case strikes hard at the balance between an individual's private property
rights and the government's interest in insuring that crime doesn't pay. Few
among us would disagree with taking the ill-gotten property from a criminal.
After all, that's what forfeiture was supposed to be about -- taking the profit
out of crime. But what possible benefit could come from taking Mrs.
Bennis' interest in her car and leaving open the possibility of taking
property of people who no one, including the prosecutor, would argue are
negligent or guilty of criminal activity?
Mrs. Bennis' argument was that the forfeiture of her interest in the
automobile violated her due process rights since the state had no
legitimate interest in punishing an innocent person, an argument which is
hardly farfetched. In the last few years, the Court has shown an inclination
to look beyond legal fictions to basic realities, stating that some
wrongdoing on the part of the property owner must be established before a
forfeiture is sanctioned. To Justice Rehnquist and some of his colleagues,
however, the last 20 years never happened.
Most federal and state forfeiture laws provide for an innocent owner
defense. So, except for its shock value, Bennis may not be as far-reaching
as feared. However, where Bennis does apply, the repercussions may be
disastrous, if not soon remedied by Congress and the state legislatures or
by what Justice Rehnquist referred to as the trial courts' ""remedial
discretion"". Since property rights form the basis of a free society, any law
which burdens an innocent owner's property or obligates that owner to
prove his or her own innocence is unduly oppressive and violates both the
Due Process Clause of the Fourteenth Amendment and the Takings
Clause of the Fifth Amendment.
Economically, financial institutions may be forced to restrict credit and
banking availability to many individuals. Under Bennis, it appears that
whatever ""reasonable steps"" the lender might take to prevent wrongful
use of property would be insufficient or, worse, irrelevant. Indeed, no
prudent lender could justify a loan against the risk that an honest and good
credit risk customer could have their property seized because the
government asserts that the property was used to facilitate a crime by
another individual.
Forfeiture can be a valuable tool in the fight against criminals. That
explains the shock of the Bennis decision. After all, what was Mrs. Bennis
supposed to do: remind her husband not to use the car to pick up a
prostitute, even though she had no knowledge of his plan to do so?
Innocent third parties should not be treated as criminals. Government
officials must learn to view situations as if they or their relatives were the
third party, despite the government's financial incentives to act otherwise.
For more than 200 years, great men have served this country as members
of the Supreme Court. Their stature was due in part to their ability to view
their decisions in a context greater than the individual case before them.
They rose above the nonsense often presented to them and, regardless of
their political bent, sought to protect us from the worst violators of the
Constitution: ourselves. Let us hope that this Court returns to reality and
treats innocent individuals in a way that reflects contemporary
understanding of justice and fair play.
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Steven L. Kessler, a former prosecutor, is a practicing attorney in New
York and author of the three-volume treatise Civil and Criminal Forfeiture:
Federal and State Practice (Clark Boardman Callaghan 1993 and Supp.
1995).