Bennis v. Michigan: Forfeiting the Due Process Rights of the Innocent Owner

Thou hast seen a farmer's dog bark at a beggar. . . . And the creature run from the cur; There, thou mighst behold the great image of authority.(1)

  Introduction

Justice Ginsburg disagreed with the liberal wing of the United States Supreme Court when she joined the majority in deciding Bennis v. Michigan,(2) a government forfeiture case in which the state of Michigan seized a car, owned jointly by husband and wife, because the husband had used the vehicle while having sex with a prostitute.(3) The wife, Tina Bennis, argued that, because she was an "innocent owner," she should not have to lose her interest in the car in an arbitrary and unfair proceeding.(4) The Court, however, held that forfeiture actions are "too firmly fixed in the punitive and remedial" law of the United States and that the Michigan forfeiture statute--even without protections for innocent owners of property involved in certain crimes--is constitutional.(5)

This case is important because of the potential broad application of the Court's decision and because the government's remedial interest in confiscating the car is not apparent.(6) Justice Stevens stated in his dissent: "The logic of the Court's analysis would permit the States to exercise virtually unbridled power to confiscate vast amounts of property where professional criminals have engaged in illegal acts."(7) The Bennis ruling seems to jeopardize the rights of lenders, lienholders, co-owners and other parties.(8) Should co-owners have to seek legislative protection each time a civil forfeiture statute is considered for enactment or is already in place?(9) The editors of the Chicago Tribune wondered:

Can the government now seize a hotel or a football stadium merely because the owners failed to prevent illegal acts that they didn't condone and knew nothing about? Can it confiscate your house because, while you were out for the evening, your teenager was caught smoking dope on the patio? It's hard to see why not.(10)

The Bennis decision is disturbing not only because of its inherent unfairness but also because the majority opinion is a departure from the historical underpinnings of civil forfeiture.(11) The majority opinion took a great leap in logic to justify expanding the government's forfeiture power--from seizing marauding ships--to confiscating an innocent person's car.(12)

The issue in Bennis v. Michigan was whether an innocent owner is constitutionally protected from the State of Michigan's nuisance abatement scheme.(13) The scheme affords no protections for truly blameless owners of property used in the commission of a single, minor crime even when the property is not the instrumentality of the crime.(14)

This Comment examines the Bennis decision in the context of the history and development of civil forfeiture and proposes a reasonable analytical framework based on civil forfeiture's historical roots, tort negligence law (an underlying theme in forfeiture cases), and due process jurisprudence.(15) Part II discusses the historical underpinnings of civil forfeiture and the Michigan statutes involved.(16) Part III reviews the facts and decisions in the Bennis case.(17) Part IV analyzes the case in the context of the Due Process Clause of the Fourteenth Amendment by applying a balancing of the interests analysis and utilizing established tort principles.(18) This analysis suggests that the courts should be able to process government civil forfeiture claims without offending traditional notions of property and liberty accorded innocent owners.(19) In Part V, this Comment concludes that, absent an innocent owner defense, the Michigan abatement statute deprives individuals of their property without due process of law, in violation of the Fourteenth Amendment.(20)

  Civil Forfeiture

A.  Origins

The origins of civil forfeiture can be traced to the Bible,(21) which inspired the primary forms of forfeiture in medieval England: the deodand,(22) and forfeiture of property relating to crimes.(23)

1.  Deodand: Ancient Forfeiture

Deodand(24) required, in English law, that "any personal chattel which was the immediate occasion of the death of any reasonable creature, [be] forfeited to the crown to be applied to pious uses."(25) In Biblical times, under the laws of Moses, if an ox killed a man or a woman, the ox would be killed, but the flesh would not be eaten.(26) This early form of retribution is a legacy that has often been cited to explain modern statutory forfeiture.(27)

In addition to the ox in Exodus, deodand developed from the Laws of Alfred the Great, an early code of laws that was prefaced by a translation of chapters twenty-one and twenty-two of the Bible's Book of Exodus.(28) As the institution of deodand evolved from these traditions, its use and purpose became corrupted.(29) Instead of the object or instrumentality of death being given to the King for pious use, the object, often an animal, was handed over to the Church to pay for church services for the souls of those who had died by "mischance."(30) Eventually, the deodand went to the Crown, or its designated public beneficiary, for general revenue purposes.(31) The use of deodands became so corrupt that our Founding Fathers rejected their inclusion in American law.(32) Deodands were abolished in England, by statute, in the nineteenth century.(33)

Modern forfeiture law, however, is not a direct descendent of the "guilty property" fiction of deodand.(34) First, property became deodand only if it was directly related to a human's death.(35) Second, English courts rejected the analogy of forfeiture to deodand.(36) Third, scholars have found little evidence to support Justice Holmes's belief that deodand is the forbear of modern forfeiture law.(37) Boats or ships that caused a man's death were not taken away as deodands.(38) Fourth, deodand was limited to the instrument of harm, unlike modern forfeiture.(39) Fifth, deodands were always tried in criminal courts.(40) Sixth, with the advance of science, the superstition of inanimate objects harming humans was rejected.(41)

2.  Forfeiture and Crimes

Forfeiture of estates related to certain criminal acts was the second type of forfeiture that was common in medieval England.(42) The government would proceed against the owner of property in personam; upon conviction his personal property was forfeited to the Crown, while any real property went to his lord.(43) Property was not forfeited as a result of a misdemeanor conviction.(44)

Statutory forfeiture in English law provided for forfeitures of offending objects used to break the customs and revenue laws.(45) The statutes were construed so that the act of an individual seaman, undertaken without the knowledge of the master or owner, could result in forfeiture of the entire ship.(46) Sir William Blackstone, the oft-cited legal authority, considered these forfeiture statutes to be penal.(47)

While deodands and forfeitures of estates did not become part of the legal tradition of this country,(48) statutory forfeitures did take hold in the United States.(49) After the adoption of the Constitution, ships and cargoes involved in customs violations were made subject to forfeiture under federal law.(50) Vessels used to deliver slaves to foreign countries were subject to forfeiture,(51) as eventually were vessels that brought slaves to the United States.(52) The enactment of forfeiture statutes proliferated, and today federal and state forfeiture statutes reach virtually any type of property that might be used in conducting a criminal enterprise.(53)

The United States Supreme Court adopted most features of English in rem forfeiture under the Navigation Acts, with the notable exception that all seizures in England for violation of the laws of revenue, trade or navigation were tried by a jury in the court of the exchequer, at common law.(54) In 1808, former Attorney General Lee argued that the Seventh Amendment required a trial by jury, and the Court, in rejecting Lee's argument, explained Congress's motive in taking forfeiture from the jury: "[t]he reason . . . for putting seizures . . . on the admiralty side of the court was the great danger to the revenue if such cases should be left to the caprices of juries."(55) The power of the federal government expanded as in rem forfeiture allowed federal judges to circumvent jury nullification of unpopular laws.(56)

3.  The "Thing" As Offender and The Negligent Owner

Since these traditions had a punitive aspect, it is not surprising that forfeiture under the Navigation Acts of 1660(57) was justified as a penalty for negligence:

But the owners of ships are to take care what master they employ, and the master what mariners; and here negligence is plainly imputable to the master; for he is to report the cargo of the ship, and if he had searched and examined the ship with the proper care, according to his duty, he would have found the tea . . . and so might have prevented the forfeiture.(58)

The fiction that a forfeited item is primarily considered to be the offender is now well established in our case law.(59) However, the United States Supreme Court has understood this fiction to be rooted in the notion that the owner who allows his property to be used in the commission of a crime has somehow been negligent.(60) The Supreme Court, in J.W. Goldsmith Jr.-Grant Co. v. United States, referred to the ancient law of deodand and then quoted Blackstone's view of implied negligence in forfeiture laws.(61) The Court has not applied the guilty-property fiction when the owner has acted reasonably to prevent proscribed use of his property.(62)

4.  Forfeiture as Punishment

Courts have recognized that statutory in rem forfeiture imposes punishment.(63) Chief Justice Marshall, in Peisch v. Ware,(64) stated:

The court is also of the opinion, that the removal for which the act punishes the owner with a forfeiture of the goods must be made with his consent or connivance, or with that of some person employed or trusted by him.

. . . [T]he law is not understood to forfeit the property of owners . . . on account of . . . strangers, over whom such owners . . . could have no control.(65)

Prior to Bennis, the Supreme Court had reserved the question of whether the fiction could be employed to forfeit the property of a truly innocent owner.(66) In 1993 the Court stated, "[i]f forfeiture had been understood not to punish the owner, there would have been no reason to reserve the case of a truly innocent owner."(67)

The Court has justified the forfeiture of an innocent owner's property by reasoning that the owner may be held accountable for the wrongs of others to whom he entrusts his property: "[T]he acts of the master and crew . . . bind the interest of the owner . . . whether he be innocent or guilty."(68) The owner impliedly submits to the forfeiture by reason of the wrongs of persons entrusted with the property.(69) This idea of negligence on the part of the innocent owner has carried through to present times.(70) In Calero-Toledo v. Pearson Yacht Leasing Co., the Court noted that forfeiture provisions "may have the desirable effect of inducing them [innocent owners] to exercise greater care in transferring possession of their property."(71) Based on these theories of forfeiture, statutory in rem forfeiture has been understood by the United States Supreme Court to be at least in part a punishment for negligent owners.(72)

B.  Michigan's Nuisance-Abatement Statutes

John Bennis was convicted of gross indecency,(73) which prompted the state to file an action alleging that Bennis used the jointly-owned car for the purpose of lewdness, assignation, or prostitution in violation of Michigan Compiled Laws § 600.3801.(74) The car was therefore a nuisance and subject to abatement pursuant to Michigan Compiled Laws § 600.3825.(75) According to the statute: "proof of knowledge of the existence of the nuisance on the part of the defendants or any of them, is not required."(76) The circuit court declared the car to be a nuisance and abated that nuisance by terminating John and Tina Bennis's ownership rights in the car.(77)

The neighborhood where the offense occurred exhibited an on-going "nuisance condition" because it had a reputation for prostitution and the Bennis car contributed to that "condition."(78) Thus, the car by itself was not the nuisance; it was only a nuisance when parked in that particular neighborhood.(79) Justice Stevens noted that "the very same offense, committed in the very same car, would not render the car forfeitable if it were parked in a different part of Detroit . . . . Indeed, if [John Bennis] . . . pick[ed] up the prostitute and continu[ed] to drive, presumably the car would not have been forfeitable at all."(80)

  Bennis v. Michigan

A.  Facts and Procedural Posture

Tina Bennis and her husband John lived in a suburban Detroit community and jointly owned a 1977 Pontiac.(81) On October 3, 1988, John Bennis was arrested for gross indecency while he was in the Pontiac, parked on a Detroit street, in a neighborhood known for prostitution.(82) The Wayne County Prosecutor, acting in the name of the State of Michigan, seized the Bennis's car and filed a civil action against John and Tina Bennis.(83) The civil action sought a finding that the vehicle was an abatable public nuisance under Michigan Compiled Laws § 600.3801, § 600.3815(2), and § 600.3825(2),(84) and that it was therefore subject to forfeiture.(85)

Under the statute, the use of "any building, vehicle, boat, aircraft or place . . . [for the purpose of] lewdness, assignation or prostitution or gambling," constitutes a nuisance.(86) If a "vehicle, boat or aircraft" was used in a manner that constitutes a nuisance, the statute provides that an order of abatement shall be entered for the forfeiture of the "nuisance" property.(87) Proceeds from the sale of forfeited vehicles, boats, and aircraft are applied first to cover the costs of selling the property, second to lienholders who had no notice of the misuse of the property, and third to the state.(88) Because of the civil and equitable nature of the proceeding, most of the protections available in criminal cases, including the right to a jury trial, are not available in a forfeiture action.(89)

The trial court found that John Bennis had engaged in an act of lewdness.(90) The court ruled that both his ownership interest and his wife's ownership interest in the car would be forfeited, despite Tina Bennis's lack of knowledge of the misuse.(91) The trial court ordered the vehicle to be sold, with proceeds going to the Wayne County Prosecutor, the Detroit Police Department, and the balance to the State of Michigan.(92)

In a two-to-one decision, the Michigan Court of Appeals reversed the trial court's order of forfeiture on statutory grounds, never reaching the Constitutional question.(93) The court held that a mere single incident of "lewdness or assignation" was not sufficient to establish a nuisance.(94) In addition, the court of appeals interpreted the nuisance-abatement statute to require the County to prove that Tina Bennis had knowledge that her husband would use the car for an illegal purpose.(95) The court stated: "`[t]he statute does not deprive one person of the use of his property by reason of the illegal acts of another, unless the owner's use bears a participating relation to the violation.'"(96)

In a four-to-three decision, the Michigan Supreme Court reversed the judgment of the Michigan Court of Appeals and upheld the forfeiture.(97) The Michigan Supreme Court reached the following conclusions, which were dispositive of the issue of forfeitability of John Bennis's interest in the car: (1) a single act of lewdness, assignation or prostitution within the meaning of the nuisance-abatement statute had occurred in the car; and (2) the statute permitted forfeiture based upon the single act of lewdness that transpired because the driver contributed to an existing condition that is a public nuisance.(98)

According to the plurality opinion, the "plain language of the nuisance-abatement statute . . . expressly obviates the requirement that an owner consent to or acquiesce in the illegal use of property."(99) Based on its "plain language" interpretation of the statute, the court determined that Tina Bennis's knowledge or consent was immaterial; therefore the forfeiture of her interest in the car was authorized appropriately by statute.(100)

The Michigan Supreme Court rejected Tina Bennis's constitutional claim that the Due Process Clause of the Fourteenth Amendment as well as the Takings Clause of the Fifth Amendment (as applied to the states through the Fourteenth Amendment) rendered the forfeiture of her interest in the car unconstitutional because she was an innocent owner.(101) The court relied primarily on two United States Supreme Court decisions in rejecting Tina Bennis's constitutional claims: Calero-Toledo v. Pearson Yacht Leasing Co.(102) and Van Oster v. Kansas.(103)

The Michigan Supreme Court interpreted Calero-Toledo as establishing that the property of an innocent owner may be forfeited whenever it is entrusted to another person who uses it for proscribed activity.(104) The court stated, "[t]he United States Supreme Court indisputably allows forfeiture of an innocent owner's property, unless evidence was submitted that the property was stolen or used without the consent of the owner."(105) Thus, because Tina Bennis "consented" to her husband using the car he half-owned, the Michigan Supreme Court ruled out the sole constitutional exception to forfeiture that had been recognized--use without the owner's consent.(106)

B.  United States Supreme Court

On June 5, 1995, the United States Supreme Court granted certiorari to determine whether the forfeiture of Tina Bennis's property interest under the Michigan statute violated her right to due process under the Fourteenth Amendment or whether the forfeiture amounted to a taking without just compensation in violation of the Fifth Amendment.(107) In a five-to-four decision,(108) the Court affirmed the Michigan Supreme Court's decision, holding that the forfeiture of Tina Bennis's car under the abatement statute did not violate either the Fifth or Fourteenth Amendments.(109)

1.  Majority Opinion

Chief Justice Rehnquist, writing for the majority, noted that the gravamen of Tina Bennis's complaint was that the Michigan statute restricted her from challenging the abatement by showing that she did not know that her husband would misuse the car.(110) The Chief Justice stated that "a long and unbroken line of cases" established that an owner's property may be taken away because of the use (or misuse) of the property even when the owner was unaware of such use.(111) The basis of these holdings is in admiralty law, beginning with the case of The Palmyra in 1827.(112) In addition to The Palmyra, the Chief Justice addressed the following cases: United States v. Dobbins's Distillery(113) (forfeiture of real property during prohibition where the owner arguably should have known of the use of his property), Van Oster v. Kansas (prohibition era case in which an owner loaned his car to someone who used it to transport liquor), J.W. Goldsmith Jr.-Grant Co. v. United States(114) (another prohibition era case in which a car was the instrumentality used to transport liquor), and Calero-Toledo v. Pearson Yacht Leasing Co. (sailboat transporting controlled substances).

In The Palmyra, the Supreme Court rejected the contention that a captured Spanish ship could not be forfeited until its owner had been convicted of privateering.(115) The Court held: "[t]he thing here is primarily considered as the offender, or rather the offence [sic] is attached primarily to the thing."(116) Justice Rehnquist noted that in Dobbins's Distillery, the Court held that

[c]ases often arise where the property of the owner is forfeited on account of the fraud, neglect, or misconduct of those entrusted with its possession, care and custody, even when the owner is otherwise without fault . . . and it has always been held . . . that the acts of [the possessors] bind the interest of the owner . . . whether he be innocent or guilty.(117)

In Dobbins's Distillery, decided almost 120 years ago, the Court relied on earlier admiralty law cases in reaching its decision.(118) The majority then discussed a prohibition-era case, Van Oster v. Kansas, in which an owner unwittingly loaned his car to an acquaintance who used the car to transport illegal liquor.(119) In upholding the forfeiture, the Van Oster Court relied on another prohibition-era case, J.W. Goldsmith, Jr.-Grant Co. v. United States, in which the Court opined: "whether the reason for [the challenged forfeiture scheme] be artificial or real, it is too firmly fixed in the punitive and remedial jurisprudence of this country to be now displaced."(120) Next, the Court reviewed Calero-Toledo v. Pearson Yacht Leasing Co., which relied on the earlier admiralty and prohibition cases and rejected an innocent-owner defense.(121) While the Calero-Toledo Court, albeit in dicta, stated, "it would be difficult to reject the constitutional claim of . . . an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property,"(122) the Bennis majority refused to pursue this line of reasoning.(123)

The majority rejected Tina Bennis's argument for a "culpability requirement," which she contended could be derived from recent case law.(124) In Foucha v. Louisiana,(125) the Court held that a state must have a punitive interest to justify the continued confinement of a defendant--found not guilty by reason of insanity--if the state could not show that he was either dangerous or mentally ill.(126) Bennis argued that, under Foucha, Michigan must demonstrate a punitive interest in taking her property without compensation.(127) The Court rejected this argument, since Foucha did not address The Palmyra line of cases, and the Court could not consider overruling such well established precedent.(128)

Finally, the majority rejected Tina Bennis's claim that the abatement scheme punished those who were innocent, although the Court conceded that the argument may have some merit.(129) However, noting the "equitable" nature of the proceeding(130) and precedent, the Court declined to give this argument more than a passing acknowledgment:

This argument, in the abstract, has considerable appeal. . . . [w]e conclude today, as we concluded 75 years ago, that the cases authorizing actions of the kind at issue are "too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced."(131)

The Court concluded that the abatement scheme sought to clean up a deteriorating, unsafe neighborhood, and then it affirmed the judgment of the Supreme Court of Michigan.(132)

2.  Concurring Opinion of Justice Thomas

Justice Thomas filed a concurring opinion.(133) He agreed with the majority's acknowledgment that punishment of an innocent owner may be "unfair."(134) Justice Thomas stated, "[o]ne 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."(135) However, Justice Thomas explained, "[t]he Federal Constitution does not prohibit every thing that is intensely undesirable."(136) Justice Thomas stated that, according to historical standards, the forfeited property should be an "instrumentality" of the crime and that the Bennis's car was indeed an instrumentality.(137) He noted that the proceeds that could have been remitted to Tina Bennis were minimal and that the confiscation of the Pontiac was essentially "remedial."(138) Justice Thomas warned, however, that "[i]mproperly used, forfeiture could become more like a roulette wheel employed to raise revenue from innocent but hapless owners whose property is unforeseeably misused."(139) Justice Thomas concluded nonetheless that the Constitution leaves the responsibility for avoiding this unjust result to the states and to the political branches of the federal government.(140)

3.  Concurring Opinion of Justice Ginsburg

Justice Ginsburg filed a concurring opinion in which she stated that the sole question presented was whether Tina Bennis was entitled to a portion of the proceeds from the sale of the car (after expenses) as a matter of constitutional right.(141) Justice Ginsburg emphasized the nature of the nuisance-abatement proceeding as an "equitable action," and noted that the Michigan Supreme Court "stands ready to police exorbitant applications of the statute."(142) Justice Ginsburg noted that the couple had another vehicle, that Tina Bennis's share of the proceeds from the sale of the car was minimal, and that Michigan was not conducting an experiment [in punishing "johns" in this manner] to punish innocent third parties.(143)

4.  Dissenting Opinion of Justices Stevens, Souter, and Breyer.

Justice Stevens, joined by Justices Souter and Breyer, filed a dissenting opinion.(144) Justice Stevens noted that for centuries prostitutes have been plying their trade and that governments have many options to "curtail its abuses."(145) Justice Stevens stated that while the state may impose strict obligations on owners of property to exercise a high degree of care, "neither logic nor history supports the Court's apparent presumption that their complete innocence imposes no constitutional impediment to the seizure of their property simply because it provided the locus for a criminal transaction."(146)

In a three-part analysis, the dissent differentiated Bennis from the precedent on which the Court relied,(147) discussed the significance of Tina Bennis's lack of culpability(148) and explained why the Court's recent decision in Austin v. United States(149) compelled reversal.(150)

Justice Stevens explained that of the three types of property subject to seizure--pure contraband, proceeds of criminal activity, and tools of the criminal's trade (including instrumentalities)(151)--Tina Bennis's car would fall under the third category.(152) The Court's early admiralty cases, Justice Stevens noted, involved this "instrumentality" category and established precedent for "seizing a freighter when its entire cargo consists of smuggled goods."(153) These cases, he recognized, would not "justify the confiscation of an ocean liner just because one of its passengers sinned while on board."(154) Justice Stevens likened the car's use for one isolated tryst to the ocean liner,(155) concluding that "an isolated misuse of a stationary vehicle should not justify the forfeiture of an innocent owner's property on the theory that it constituted an instrumentality of the crime."(156)

Justice Stevens explained that, in the cases cited by the majority, the property facilitated the offenses, whereas in Bennis, the car merely played a part in the negotiation but was not necessary for the sexual act to occur.(157) While the act did occur in the car, it could have occurred in many other locations, and Justice Stevens noted testimony that John Bennis had been seen twice before, in the same neighborhood, soliciting prostitutes without the car.(158)

In questioning the remedial nature of the forfeiture, Justice Stevens argued that all forfeitures are punishment(159) and that a remedial justification does not apply to the facts of Bennis because once the car left the neighborhood, the need to abate the car ceased to exist.(160)

The second part of the dissent examined the significance of Tina Bennis's lack of culpability.(161) Justice Stevens noted that, in Austin, the Court examined the same line of cases cited by the majority and concluded that all of its forfeiture decisions were based on "`the notion that the owner has been negligent in allowing his property to be misused and that he is properly punished for that negligence.'"(162) Justice Stevens maintained that the majority "simply ignore[d] Austin's detailed analysis of our case law without explanation or comment"(163) since Tina Bennis "was in no way negligent"(164) in entrusting the family car to her husband.(165)

Justice Stevens noted that even if strict liability to innocent owners is appropriate, the Court has consistently recognized that "truly blameless" individuals would be an exception.(166) In other contexts, Justice Stevens explained, the Court has regarded as self-evident that an individual who has done no wrong cannot be punished.(167) Justice Stevens concluded that "[the Court should] hold now what we have always assumed: that the principle [of not punishing the innocent] is required by due process."(168)

Justice Stevens likened holding owners responsible when their property is used in a crime to holding an employer liable under respondeat superior.(169) Like respondeat superior, which exonerates an employer when the employee embarks on a "`frolic of his own,'"(170) Justice Stevens reasoned that John Bennis was not "entrusted" with the car; he used it because he was a joint owner.(171) The threat of civil forfeiture has no deterrent value--a woman will not be deterred from buying a car with her husband--if she has no reason to know that he plans to commit crimes with the car.(172)

The dissent asserted that "the absence of any deterrent value reinforces the punitive nature of this forfeiture law."(173) Justice Stevens noted that Tina Bennis had done nothing that warranted punishment; she was neither negligent nor derelict in allowing her husband to use the car to commute to work.(174) The dissent concluded that "these facts establish that the seizure constituted an arbitrary deprivation of property without due process of law."(175)

The third part of Justice Stevens's dissent contended that the Court's holding "is dramatically at odds" with its holding in Austin v. United States.(176) Austin established that forfeitures are subject to the limitations of the Eighth Amendment's Excessive Fines Clause.(177) Justice Stevens asserted that the Eighth Amendment was violated in the instant case because even a modest penalty for the truly blameless Tina Bennis was excessive; when the penalty is forfeiture of an entire car merely because "an illicit act took place once in the driver's seat, the punishment is plainly excessive."(178)

Justice Stevens concluded his dissent by acknowledging that while the distinction between a permissible forfeiture and an improper one is not clearly drawn, this forfeiture was clearly inequitable, and unconstitutional.(179)

5.  Dissenting Opinion of Justice Kennedy

Justice Kennedy also filed a dissenting opinion.(180) While noting the history and tradition of forfeiture law, he stated that a well-recognized tradition in admiralty law does not extend this principle to all vessels, in all instances.(181) Justice Kennedy pointed out that the Bennis's car was not used to transport contraband, and on that basis this case goes beyond existing precedent supporting the government's use of forfeiture.(182) Justice Kennedy concluded that this forfeiture "cannot meet the requirements of due process,"(183) and "nothing supports the suggestion that the value of [Tina Bennis's] co-ownership is so insignificant as to be beneath the law's protection."(184)

  Analysis

In a historical context, Tina Bennis was deprived of a right--a jury trial--that she would have received at common law in the Exchequer over 200 years ago.(185) Early on, the Supreme Court distinguished forfeiture of goods seized on land, which were tried by jury at common law, from goods seized at sea.(186) While federal courts continued to follow the rule of distinguishing the type of seizure and process due,(187) the Supreme Court, in Van Oster v. Kansas,(188) rejected the claim of a constitutional right to a jury trial in a state court.(189) In doing so, the Court unleashed state governments to stretch civil forfeiture beyond its historical domain, to an extent that would have alarmed the framers of the Constitution.(190) In barely 200 years, a nation founded on the principles of freedom, liberty, and property rights has traded the shackles of one repressive and arbitrary sovereign for those of another--a trial judge acting in "equity." Absent an innocent owner defense, the Michigan nuisance abatement statute deprives individuals of property without due process of law, in violation of the Fourteenth Amendment.

A.  Government Civil Forfeiture, Innocent Owners, and Private Property Rights

Government forfeiture power creates a friction between two fundamental American legal principles: (1) that crime should not pay, and (2) that property rights are a fundamental part of individual freedom.(191) The United States Supreme Court has acknowledged the current tension between government power and private property with regard to civil forfeiture.(192) The relationship between the abuse of civil forfeiture laws and the destruction of private property rights has been the subject of much writing, both popular and scholarly, in the past few years.(193) Accounts of property owners clenched in the teeth of the government's civil forfeiture power have contributed to government distrust.(194) As a result, greater procedural protections and other reforms of civil forfeiture laws are being undertaken.(195)

Bennis addresses whether property, "however blameless or unknowing [its] owner might be," can be seized by the government merely because it was in some way connected to a single illegal act.(196) In recognizing the importance of property rights protections, the Supreme Court declared that property rights claims should not be relegated "to the status of a poor relation" relative to other constitutional rights.(197) The Bennis decision runs counter to this declaration, with an apparent disregard for the rights of an innocent owner.(198)

B.  Forfeiture of An Innocent Owner's Property and the Due Process Clause of the Fourteenth Amendment

The Due Process Clause of the Fourteenth Amendment protects individuals from arbitrary and irrational deprivations of life, liberty, and property.(199) The amount of process due is determined by an analysis of the practical consequences of challenged procedures on the protected interest.(200) Criminal actions generally require stringent procedures because of the serious consequences that usually result from a criminal conviction.(201) When consequences approach similar proportions in a civil action, due process requires similar protection.(202) Therefore, characterizing an in rem forfeiture as a civil proceeding should not automatically justify shifting the burden of proof to the petitioner.(203) This Michigan nuisance-abatement scheme is a civil proceeding in which it is explicitly stated that there is no innocent owner protection.(204) Instead, the fate of the innocent owner is left to the "equitable discretion"(205) of the trial court and is subject to review, upon appeal, by the Michigan Supreme Court.(206)

The Supreme Court, in Calero-Toledo, recognized that civil forfeiture of innocent owners' property could raise constitutional concerns.(207) Citing case history beginning in 1808 with Peisch v. Ware,(208) the Calero-Toledo Court, in dicta, noted that two exceptions had been carved out of case law to merit possible constitutional protection from government forfeiture: (1) an owner whose property had been taken from him without consent and (2) an owner "who proved not only that he was uninvolved and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property."(209) In such an instance, "it would be difficult to prove that forfeiture served legitimate purposes and was not unduly oppressive."(210) The implicit view expressed in Calero-Toledo that the state has no legitimate interest in the punishment of persons who have not engaged in some culpable conduct is axiomatic to our legal tradition.(211)

Tina Bennis's case falls within the exceptions, noted in the Calero-Toledo dicta, that courts seem to have reserved regarding truly blameless owners.(212) Where courts have adopted the Calero-Toledo dicta, Calero-Toledo's suggestion that a person take "all" reasonable precautions against illegal use has been found to place onerous and vague duties on property owners to police the acts of others.(213) The Bennis dissent suggests clarifying the Pearson dicta with a rule of negligent entrustment where forfeiture is used against an innocent owner.(214) It appeared that the Court was headed in this direction when it stated, in Austin v. United States,(215) that holding the owner "accountable for the [actions of] others to whom he entrusts his property" rests "on the notion that the owner has been negligent in allowing his property to be misused and that he is properly punished for that negligence."(216) The negligent entrustment doctrine would give clear guidance to lower courts where statutes do not provide a defense for innocent owners.(217) Tempering the Calero-Toledo dicta in this way could ameliorate the arbitrary and unfair nature of Michigan's forfeiture statute.(218)

The Supreme Court, in other contexts, has recognized the due process right of an innocent person to be free of punishment. In Foucha v. Louisiana, the Court, relying on substantive due process principles, held that once a criminal is found "not guilty" of a crime, the State may not impose punishment.(219) In Foucha, a criminal defendant was found not guilty of aggravated burglary and illegal discharge of a firearm by reason of insanity.(220) He was committed to a facility and kept there indefinitely pursuant to a Louisiana statute despite subsequent medical findings that he was sane.(221) The Court held the statute to be unconstitutional because continued detention under the statute amounted to "punishment," which the state had no justification to inflict.(222)

Similarly, in Bell v. Wolfish,(223) the Court held that the Constitution prohibited the punishment of criminal defendants who were being detained pending trial, because "under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt."(224) The Court reasoned that because retribution and deterrence were not legitimate government objectives in this context, the imposition of pre-trial punishment on detainees was unconstitutional.(225) An innocent person's "right to be free of punishment" is an "obvious and indisputable" component of due process.(226)

C.  Forfeiture of Tina Bennis's Car as Punishment

The Court's recent decision in Austin established that there is a historical basis for the due process principle recognized in Calero-Toledo.(227) The Court reviewed nearly two centuries of its forfeiture jurisprudence and concluded that its decisions have "consistently . . . recognized that forfeiture serves, at least in part, to punish the owner" for personal culpability.(228) In addition to providing a historical analysis that supports a due process based prohibition against the use of forfeiture to punish blameless owners, the Austin decision provides an analytical framework for determining whether forfeiture under the Michigan statute is punishment and therefore unconstitutional on substantive due process grounds.(229) The Austin Court held that civil forfeiture under two widely used provisions of the federal drug forfeiture statute constitutes punishment.(230) The conveyances referred to in the federal provision ("aircraft, vehicles or vessels")(231) are nearly identical to those referred to in section 3825(2) of the Michigan statute ("vehicle, boat, or aircraft").(232) The Court recognized that forfeiture of such property is not "remedial" for two reasons: (1) because the value of the property subject to forfeiture can vary greatly, forfeiture of such property cannot be regarded as "remedial" in the sense of reimbursing the government for the costs of law enforcement;(233) and (2) any analogy to the seizing of contraband must fail because the possession of conveyances such as cars is legal, with many legitimate uses.(234) Therefore, like forfeitures under the federal statutory provisions in section 881(a)(4) and section 881(a)(7), forfeitures under the Michigan statute are "punishment,"(235) and due process prohibits the statute from authorizing confiscation of property from non-culpable owners like Tina Bennis over the wrongful use of her property.(236) As characterized by the State of Michigan, the forfeiture proceeding is "the functional equivalent of a . . . criminal prosecution."(237)

D.  Application of the Mathews v. Eldridge Balancing Test

In civil proceedings in which the government seeks the confiscation of property, the question of who has the burden of proof is crucial in determining the fundamental fairness of the proceeding.(238) Although the practice of shifting the burden of proof in forfeiture proceedings onto the party opposing the forfeiture is an old one, defendants in forfeiture proceedings increasingly have questioned the constitutionality of these procedures.(239)

The Supreme Court should employ the three-factor balancing test for evaluating due process as set out in Mathews v. Eldridge.(240) Although Mathews involved the administrative denial of a statutory entitlement,(241) the analytical framework developed in that case could be applied effectively to determine whether a civil forfeiture statute comports with the Due Process Clause.(242) In developing the framework, the Mathews Court articulated analyses of due process utilized in prior Supreme Court due process decisions.(243)

The three-part Mathews analysis requires consideration of: (1) "the private interest affected by the official action;"(244) (2) "the risk of an erroneous deprivation of that interest through the procedures used, as well as the probable value of additional safeguards;"(245) and (3) "the Government's interest, including the administrative burden that additional procedural requirements would impose."(246) An individual's right to be free from arbitrary confiscation of her personal property, no less than her real property, is "a private interest of historic and continuing importance."(247) The specific kind of property seized in this case--a car--is an essential part of modern life.(248) For many Americans, a car is their most important and valuable personal possession.(249) For most, it is a vital part of life since cars provide "access to jobs, schools, and recreation as well as to the daily necessities of life."(250)

The automobile offers a perfect example of the fundamental interdependence between property rights and individual liberties recognized in James Daniel Good Real Property.(251) To as great an extent as perhaps any other personal property, "to deprive an individual of . . . [an automobile] is to deprive him of a measure of his autonomy."(252) Thus, in Bennis, as in James Daniel Good Real Property, "the private interests at stake weigh heavily in the Mathews balance."(253)

Under the second Mathews factor, presuming a person "guilty," rather than "innocent" in this context would be especially likely to lead to erroneous deprivations.(254) Tina Bennis would have to prove a negative--namely, that she was not negligent in entrusting property, or did not know that her husband was likely to engage in an illegal use of the car.(255) By its very nature, the kind of evidence that will disprove negligence or knowledge can be extremely difficult to acquire.(256) The government, on the other hand, would be required to prove nothing about the owner's negligence or knowledge.(257) Finally, the increased legal costs incurred by parties who bear the burden of proof in judicial proceedings, along with the difficulties of proof, would deter some truly innocent owners from even mounting a defense.(258)

The third Mathews factor is the "[g]overnment's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."(259) Placing the burden of proof on the government to show culpability in cases where the owner entrusts her property to another will have little, if any, adverse impact on the government.(260) Under the Michigan nuisance abatement statute, the state already has that burden with respect to cases in which the owner is the same person who misuses the property.(261) There is no substantial governmental interest supporting different burden allocations in the two classes of cases.(262) Furthermore, the purpose of a nuisance abatement proceeding is to prevent a particular misuse of property, which can be accomplished by injunctive relief. The government's interest in punishing the person who created the nuisance can be met through criminal actions like the one that was brought against John Bennis.(263)

The conclusion that the burden should be with the state applies with particular force here because of the quasi-criminal nature of proceedings under the Michigan nuisance abatement statute.(264) Therefore, the presumption of innocence that applies in criminal proceedings should apply here as well.(265) Thus, due process requires that the state bear the burden of proof on the issue of an innocent owner's culpability where it seeks to confiscate property based on the crimes of another.

  Conclusion

Civil forfeiture is a powerful and lucrative weapon for law enforcement agencies.(266) While civil forfeiture's effects have been recognized as being punishment,(267) the accused are denied the safeguards afforded by the criminal system merely because the proceeding is characterized as "civil."(268) Courts should embody common law tort principles where an innocent owner is involved and incorporate a proportional, balancing of the interests framework, placing the burden on the government to prove culpability on the part of the innocent owner.(269) Absent an innocent-owner defense, the Michigan nuisance-abatement statute deprives individuals of property without due process of law, in violation of the Fourteenth Amendment:

Due process is not a fixed notion. Although history creates a presumption of continued validity, [circumstances] today are different than they were 200 years ago, and nothing in the Fourteenth Amendment requires us to blind ourselves to this fact. Just the opposite is true. The Due Process Clause demands that we possess some degree of confidence that the procedures employed to deprive persons of life, liberty, and property are capable of producing fair and reasonable results. When we lose that confidence, a change must be made.(270)

Graeme S. R. Brown

1. William Shakespeare, King Lear, act 4, sc. 6.

2. 516 U.S. 442 (1996), reh'g denied, 116 S. Ct. 1560 (1996). The case was decided by a five-to-four decision, with Chief Justice Rehnquist, and Justices O'Connor, Scalia, Thomas, and Ginsburg in the majority. See id. Justices Stevens, Souter, Kennedy, and Breyer dissented. See id.

3. See id. at 443.

4. Id.

5. Id. at 453 (citing J.W. Goldsmith-Grant Co. v. United States, 254 U.S. 505, 511 (1921)).

6. See id. at 458-59 (Stevens, J., dissenting); see also infra notes 9, 53, 178 and accompanying text. Encouraged by this decision, other legislatures will be tempted to enact forfeiture statutes without innocent owner protections, leading to substantial abridgement of individual rights.

7. Bennis, 516 U.S. at 458 (Stevens, J., dissenting).

8. See id. at 460 (Stevens, J., dissenting). There are a substantial number of cases in which civil forfeiture has been abused or over-zealously pursued. See Tim Poor & Louise J. Rose, Police Make Suspects Pay Fees, St. Louis Post-Dispatch, Apr. 28, 1991, at A1. For example, in some states, after the police seize property, prosecutors allow the officers to "negotiate settlements" with the owners for the return of their property. Id.

9. See Bennis, 516 U.S. at 459 (Stevens, J., dissenting).

10. Almost Blind Justice: Sometimes Even the Innocent Are Guilty, Chi. Trib., Mar. 27, 1996, at 27.

11. See infra notes 32-38 and accompanying text.

12. See Bennis, 516 U.S. at 446-47. Forfeiture is "a comprehensive term which means a divestiture of specific property without compensation." Black's Law Dictionary 650 (6th ed. 1990).

13. See id. at 444. The Michigan nuisance abatement statute provides, in pertinent part: "Any . . . vehicle . . . used for the purpose of . . . prostitution . . . is hereby declared a nuisance . . . and nuisances shall be enjoined and abated. . . . Any person . . . who shall own . . . any . . . vehicle . . . used for any of the purposes . . . set forth [in this section] is guilty of a nuisance." Mich. Comp. Laws Ann. § 600.3801 (West 1987).

14. See Mich. Comp. Laws Ann. § 600.3815(2) (West 1987) ("Proof of knowledge of the existence of the nuisance on the part of the defendants . . . is not required."). Since federal civil forfeiture statutes and most states' civil forfeiture statutes have innocent owner protections, the impact of the Bennis decision may be limited. The constitutional issues are important, however, because "fundamental fairness prohibits the punishment of innocent people." Bennis, 516 U.S. at 466 (Stevens, J., dissenting).

Tina Bennis was given process in that she could testify at the forfeiture proceeding, but her testimony was essentially meaningless since the statute foreclosed any argument she could make ("proof of knowledge . . . [of the innocent owner] is not required [for the government to confiscate her car]." Mich. Comp. Laws Ann. § 600.3185(2) (West 1987)). Thus, although Tina received "process," it was fatally defective because of the substance of the forfeiture statute, which failed to allow any protection for innocent owners. The abatement proceeding was in equity, leaving Tina's fate to the trial judge. In essence the substantive defect was like the proverbial tail wagging the dog, infecting the procedure in that the government had to prove nothing with respect to Tina Bennis in order to punish her by taking away her property, while denying her any real defense.

15. See infra notes 21-270 and accompanying text.

16. See infra notes 21-80 and accompanying text.

17. See infra notes 81-184 and accompanying text.

18. See infra notes 185-265 and accompanying text.

19. While there may be valid analyses under the Fifth Amendment's Takings Clause and the Eighth Amendment's Excessive Fines Clause, this examination is confined to fundamental fairness as embodied in due process.

20. See infra notes 266-270 and accompanying text.

21. See Jacob L. Finkelstein, The Goring Ox: Some Historical Perspectives on Deodands, Forfeitures, Wrongful Death and the Western Notion of Sovereignty, 46 Temple L.Q. 169, 180-81 (1973).

22. See infra notes 24-41 and accompanying text.

23. See infra notes 42-72 and accompanying text.

24. See Black's Law Dictionary 436 (6th ed. 1990) (deriving from the Latin, "Deo dandum, a thing to be given to God").

25. Id.

26. See Exodus 21:28.

27. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-82 (1974); J.W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 510-11 (1921).

28. See Finkelstein, supra note 21, at 181.

29. See id.

30. Id. at 182. "Mischance" was distinguished from "accident." 1 Britton 39 (Francis Morgan Nichols trans., Wm. W. Gaunt & Sons, Inc. 1983) (1865) (written between 1291-92). Accidents involved death by one's own bad luck, such as disease or drowning. See id. Death by accident involved no "guilty" instrumentality; therefore there was no deodand. See id.

31. See Finkelstein, supra note 21, at 182.

32. See Parker-Harris Co. v. Tate, 188 S.W. 54, 55 (Tenn. 1916) ("To the credit of American Jurisprudence, from the outset the [deodand] was deemed to be so repugnant to our ideas of justice as not to be included as part of the common law of this country.").

33. See Finkelstein, supra note 21, at 170 n.2.

34. See infra notes 35-41 and accompanying text.

35. See 1 Matthew Hale, The History of the Pleas of the Crown 419 (Legal Classics ed. 1980) (1736).

36. See Mitchell v. Torup, 145 Eng. Rep. 764, 767 (Ex. 1766).

37. See Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty 590 (2d ed. 1975); see also infra note 61.

38. See 1 William Hawkins, A Treatise on the Pleas of the Crown 66 (Garland ed. 1978) (1716).

39. See id.

40. See Walter Woodburn Hyde, The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and Modern Times, 64 U. Pa. L. Rev. 696, 696-98 (1916).

41. See id. See generally Donald A. Boudreaux & A.C. Pritchard, Innocence Lost: Bennis v. Michigan and the Forfeiture Tradition, 61 Mo. L. Rev. 593, 601-02 (1996); Michael Schecter, Note, Fear and Loathing and Forfeiture Laws, 75 Cornell L. Rev. 1151, 1154 (1990); James R. Maxeiner, Note, Bane of American Forfeiture Law--Banished at Last?, 62 Cornell L. Rev. 768, 772 (1977).

42. See Finkelstein, supra note 21, at 182.

43. See id. at 182.

44. See id. at 180-81.

45. See Calero-Toledo, 416 U.S. at 682. The most notable of these were the Navigation Acts of 1660, which required the shipping of most commodities in English ships. See id. Violations of the Acts resulted in the forfeiture of the illegally carried goods as well as the ship that transported them. See L. Harper, The English Navigation Laws (1939).

46. See Mitchell v. Torup, 145 Eng. Rep. 764 (Ex. 1766).

47. See 1 William Blackstone, Commentaries on the Laws of England 301 (1897) ("[S]uch misfortunes are in part owing to the negligence of the owner, and therefore, he is properly punished by such forfeiture.").

48. See Parker-Harris Co. v. Tate, 188 S.W. 54, 55 (Tenn. 1916); see also U.S. Const. art. III, § 3 (forfeiture of estates related to conviction for treason constitutionally proscribed); 18 U.S.C. § 3563 (1902); Act of Apr. 30, 1790, 1 Stat. 112, 117 (1790) (forfeiture of estates not permitted as a consequence of a federal criminal conviction).

49. See C.J. Hendry Co. v. Moore, 318 U.S. 133, 139 (1943). As the Supreme Court recognized: "Long before the adoption of the Constitution the common law courts in the colonies--and later in the states during the period of Confederation--were exercising jurisdiction in rem in the enforcement of [English and local] forfeiture statutes." Id.

50. See Act of July 31, 1789, §§ 12, 36, 1 Stat. 39, 47 (1789); see also Act of Aug. 4, 1790, §§ 13, 22, 27, 28, 67, 1 Stat. 157, 161, 163, 176 (1790).

51. See Act of Mar. 22, 1794, § 1, 1 Stat. 347, 347-49 (1794).

52. See Act of Mar. 2, 1807, ch. XXII, § 2, 2 Stat. 426 (1807).

53. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 663 n.1, 683-86 (1974) (pleasure sailboat); J.W. Goldsmith Jr.-Grant Co. v. United States, 254 U.S. 505, 508 (1921) (car); Dobbins's Distillery v. United States, 96 U.S. 395, 396, 402 (1878) (distillery/real estate); United States v. Brig Malek Adhel, 43 U.S. (2 How.) 211, 234 (1844) (ship); The Palmyra, 25 U.S. (12 Wheat.) 1, 14 (1827) (ship). The force of government civil forfeiture proved too much for First Amendment protections when the Supreme Court ruled that the First Amendment was not violated by the government's seizure of an entire chain of adult bookstores and movie houses after finding several obscene items for sale. See Alexander v. United States, 509 U.S. 544, 546-47 (1993).

54. See United States v. The Schooner Betsey and Charlotte, 8 U.S. (4 Cranch.) 443, 447 (1808).

55. Id. at 446-48 (citing United States v. La Vengeance, 3 U.S. (3 Dall.) 297, 299-300 (1796)).

56. See Douglas Lamar Jones, The Caprice of Juries: The Enforcement of the Jeffersonian Embargo in Massachusetts, 24 Am. J. Legal Hist. 307, 310 (1980) (indicating that juries acquitted defendants in seizure cases at a much higher rate than did judges).

57. See Harper, supra note 45.

58. Mitchell v. Torup, 145 Eng. Rep. 764, 768 (Ex. 1766).

59. See, e.g., Austin v. United States, 509 U.S. 602, 615-16 (1993); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 684 (1974); J.W. Goldsmith Jr.-Grant Co. v. United States, 254 U.S. 505, 511 (1921) (stating that "the thing is primarily considered the offender"); Dobbins's Distillery, 96 U.S. at 401 ("[T]he offence [sic] . . . is attached primarily to the distillery, and the real and personal property used in connection with the same, without any regard whatsoever to the personal misconduct or responsibility of the owner . . . ."); Brig Malek Adhel, 43 U.S. at 233 ("The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches . . . ."); The Palmyra, 25 U.S. at 14 ("The thing is here primarily considered as the offender, or rather the offence [sic] is attached primarily to the thing.").

60. See Austin, 509 U.S. at 616.

61. See J.W. Goldsmith Jr.-Grant Co., 254 U.S. at 510-11; see also Blackstone, supra note 47 and accompanying text. In his seminal work, The Common Law, Oliver Wendell Holmes traced the origin of American civil forfeiture law to the ancient law of deodands, and for several decades this view prevailed. See O.W. Holmes, Jr., The Common Law 24-25 (Little, Brown & Co. 1945) (1881). Recently, the Supreme Court relied on and cited Holmes's history. See Calero-Toledo, 416 U.S. at 680-81. This is important in light of recent scholarship which asserts that Justice Holmes's reliance on deodand as the direct origin of statutory forfeiture is incorrect. See supra notes 34-41 and accompanying text. It is ironic that Justice Holmes should play a strong role in the "guilty property" fiction that underlies forfeiture case law. One hundred years ago Justice Holmes wrote:

It is revolting to have no better reason for a rule of law than that . . . it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which is was laid down have vanished long since, and the rule simply persists from blind imitation of the past.O.W. Holmes, Jr., The Path of Law, 10 Harv. L. Rev. 457, 469 (1897).

62. See infra notes 207-11 and accompanying text; see also The Palmyra, 25 U.S. at 15 (rejecting the argument that criminal conviction of the owner was necessary in order to forfeit his property); Brig Malek Adhel, 43 U.S. at 230 (holding that where the owners did not authorize or contemplate the purpose for which the ship was used, the cargo could not be forfeited). But see Dobbins's Distillery, 96 U.S. at 401 (holding the owner responsible because the owner leased the property to a tenant who chose to use it for a distillery).

63. See infra notes 227-37 and accompanying text.

64. 8 U.S. 347 (1808) (dealing with goods removed from the custody of a revenue officer pursuant to a writ of replevin issued by a state court).

65. Id. at 364-65 (emphasis added).

66. See J.W. Goldsmith Jr.-Grant Co., 254 U.S. at 512; Calero-Toledo, 416 U.S. at 689-90.

67. Austin v. United States, 509 U.S. 602, 617 (1993) (emphasis added).

68. Brig Malek Adhel, 43 U.S. at 234.

69. See id.

70. See infra notes 227-37 and accompanying text.

71. Calero-Toledo, 416 U.S. at 688.

72. See infra notes 227-37 and accompanying text. The Supreme Court, in United States v. Ursery, 116 S. Ct. 2135 (1996), decided subsequent to Bennis, held that civil in rem forfeitures were not punishment for the purposes of the double jeopardy clause. See Ursery, 116 S. Ct. at 2148. In a double jeopardy case, the defendant is charged and convicted of a crime, then (or currently) proceeded against by the government in a civil forfeiture action to recover property that, in Ursery's case, was used to facilitate illegal drug transactions. The statute under which the federal government proceeded against Ursery, 21 U.S.C. § 881(a)(7), contains an innocent owner defense. Ursery followed Austin, which had been interpreted to hold that in rem civil forfeiture always constituted punishment for double jeopardy purposes. Ursery is distinct from Bennis, where the non-culpable innocent owner is neither charged nor has opportunity to present a meaningful defense.

73. See Mich. Comp. Laws Ann. § 750.338b (West 1987).

74. See Wayne County Prosecuting Attorney v. Bennis, 504 N.W.2d 731, 732 (Mich. Ct. App. 1993); see also Mich. Comp. Laws Ann. § 600.3801 (West Supp. 1997), which provides in pertinent part:

Any building, vehicle, boat, aircraft or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons . . . is hereby declared a nuisance, . . . and all . . . nuisances shall be enjoined and abated as . . . provided in this act and as provided in the court rules. Any person, or his [or her] servant, agent or employee who owns, leases, conducts, or maintains any building, vehicle or place used for any of the purposes or acts set forth in this section is guilty of a nuisance.Id.

75. See Mich. Comp. Laws Ann. § 600.3825 (West 1987) (providing for the issuance of an order of abatement and sale of property, including a vehicle, that is found to be a nuisance). Section 600.3805 authorizes prosecuting attorneys to bring an action for equitable relief to abate a nuisance. See id. § 600.3805. The abatement of a nuisance may be defined as "[t]he removal, stoppage, prostration, or destruction of that which causes a nuisance." Black's Law Dictionary 1066 (6th ed. 1990).

76. Mich. Comp. Laws Ann. § 600.3815(2) (West 1987).

77. See Michigan ex rel. Wayne County Prosecuting Attorney v. Bennis, 504 N.W.2d 731, 731-32 (Mich. Ct. App. 1993).

78. Bennis v. Michigan, 527 N.W.2d 483, 491 (Mich. 1994).

79. See id. at 496 (Cavanaugh, C.J., dissenting).

80. Bennis v. Michigan, 516 U.S. 442, 464 n.9 (1996) (Stevens, J., dissenting) (citing Bennis, 527 N.W.2d at 491 n.22).

81. See id. at 1008 (Stevens, J., dissenting). John Bennis used the car to commute to his job at a steel mill. See id. The couple had been married for nine years. See id. Tina Bennis had no idea how her husband had used the car. See id. She expected him to come directly home from work and even called "Missing Persons" on the night John was arrested for gross indecency. Id.

82. See Michigan ex rel. Wayne County Prosecuting Attorney v. Bennis, 504 N.W.2d 731, 732 (Mich. Ct. App. 1993). Arresting officers observed Kathy Polarchio, a known prostitute, and John Bennis engaged in a sexual act. See id.

83. See id.

84. See Mich. Comp. Laws Ann. §§ 600.3801, 600.3815(2), 600.3825(2) (West 1987). The Michigan public nuisance abatement statute declares specific uses of property to be a "nuisance" and authorizes the state attorney general or a county prosecuting attorney to bring a civil action for equitable relief to abate the nuisance. See id. § 600.3805. The public nuisance abatement statute, § 600.3825, provides for the forfeiture of certain property found to have been used for the purpose of creating a nuisance as well as the traditional equitable remedy to enjoin the nuisance. See id. §§ 600.3801, 660.3805, 600.3825.

85. See supra notes 73-77 and accompanying text.

86. Mich. Comp. Laws Ann. § 600.3801 (West 1987).

87. Id. § 600.3825(2). The statute specifically states that "[p]roof of knowledge of the existence of the nuisance [by any party] is not required." Id.

88. See id. § 600.3825(3).

89. See Mich. Ct. R. 3.601 (1995). The abatement of public nuisances is an equitable action. See Mich. Comp. Laws Ann. § 600.3805 (West 1987); see also 58 Am. Jur. 2d Nuisances § 321, at 911-12 (1989 & Supp. 1996).

90. See Michigan ex rel. Wayne County Prosecuting Attorney v. Bennis, 504 N.W.2d 731, 732 (Mich. Ct. App 1993).

91. See id.

92. See Bennis v. Michigan, 516 U.S. 442, 470 n.14 (1996) (Stevens, J., dissenting).

93. See Bennis, 504 N.W.2d at 735.

94. Id. The court held that the prosecutor had failed to demonstrate that a prostitution-related offense had occurred. See id. No evidence of the exchange of cash for sexual services was presented. See id.

95. See id. at 733.

96. Id. (quoting People v. Schoonmaker, 216 N.W. 456, 457 (Mich. 1927)).

97. See Bennis v. Michigan, 527 N.W.2d 483 (Mich. 1994) (Riley, J., plurality opinion). The plurality opinion was written by Justice Riley and joined by Justices Boyle and Mallett. See id. at 485-95. Justice Griffin concurred in the result only and did not write separately. See id. Chief Justice Cavanagh wrote a dissenting opinion which was joined by Justices Brickley and Levin. See id. at 495-502 (Cavanagh, C.J., dissenting).

98. See id. at 495 (Riley, J., plurality opinion).

99. Id. at 493 (Riley, J., plurality opinion).

100. Id. at 493-94 (Riley, J., plurality opinion).

101. See id. at 495 (Riley, J., plurality opinion).

102. 416 U.S. 663 (1974).

103. 272 U.S. 465 (1926).

104. See Bennis, 527 N.W.2d at 494 (Riley, J., plurality opinion) (citing Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683 (1974)).

105. Id. at 495 (Riley, J., plurality opinion). The court held that forfeiture of an innocent owner's property would be constitutional as long as the owner consented to the use of the property although he or she did not consent to the activity for which the property was used. See id. at n.36 (Riley, J., plurality opinion). Michigan's failure to provide an innocent owner defense, unlike many other states, is "without constitutional consequence." Id. at 493-94 (Riley, J., plurality opinion).

106. See id. (Riley, J., plurality opinion).

107. See Bennis v. Michigan, 516 U.S. 442, 446 (1996).

108. Justices O'Connor, Scalia, Thomas, and Ginsburg joined the opinion of the majority, delivered by Chief Justice Rehnquist. See id. at 443-53. Justice Thomas filed a concurring opinion. See id. at 453-57 (Thomas, J., concurring). Justice Ginsburg also filed a concurring opinion. See id. at 457-58 (Ginsburg, J., concurring). Justices Breyer and Souter joined the dissenting opinion of Justice Stevens. See id. at 458-72 (Stevens, J., dissenting). Justice Kennedy also filed a dissenting opinion. See id. at 472-73 (Kennedy, J., dissenting).

109. See id. at 443.

110. See id. at 446.

111. Id.

112. See id. at 446-47 (citing The Palmyra, 25 U.S. (1 Wheat) 1 (1827)).

113. 96 U.S. 395 (1878).

114. 254 U.S. 505 (1921).

115. See The Palmyra, 25 U.S. (1 Wheat) 1, 1 (1827).

116. Id. at 14. The Bennis Court noted another admiralty forfeiture decision seventeen years later in which Justice Story wrote "`the acts of the master and crew . . . bind the interest of the owner of the ship, whether he be innocent or guilty.'" Bennis, 516 U.S. at 447 (quoting Harmony v. United States, 43 U.S. 210, 234 (1844)).

117. Bennis, 516 U.S. at 447 (quoting Dobbins's Distillery, 96 U.S. at 401).

118. See Dobbins's Distillery, 96 U.S. at 400-02 (citing United States v. Brig Malek Adhel, 43 U.S. 210 (1844); The Palmyra, 25 U.S. (1 Wheat) 1 (1827); United States v. Little Charles, 26 F. Cas. 979 (C.C.D. Va. 1818) (No. 15,612)).

119. See Van Oster v. Kansas, 272 U.S. 465, 466 (1926). Bennis is distinguishable from Van Oster because John Bennis actually owned half of the car (he was entitled to use it) and was more than a mere acquaintance to his wife Tina (she had a reasonable expectation that the car would be used properly). See Bennis, 516 U.S. at 468.

120. Bennis, 516 U.S. at 448 (quoting J.W. Goldsmith Jr.-Grant Co. v. United States, 254 U.S. 505, 511 (1921)).

121. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683 (1974).

122. Id. at 689.

123. See Bennis, 516 U.S. at 450. "[I]t is to the holdings of our cases, rather than their dicta, that we must attend." Id. (quoting Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 379 (1994)).

124. Foucha v. Louisiana, 504 U.S. 71, 72 (1992) (holding that defendant may not be punished if found to be not guilty); see also Austin v. United States, 509 U.S. 602, 619 (1993) (holding scope of civil forfeiture judgments limited by the Excessive Fines Clause of the Eighth Amendment).

125. 504 U.S. 71 (1992).

126. See id. at 80.

127. See Bennis, 516 U.S. at 451.

128. See id.

129. See id. at 453.

130. See id. at 452. "`It is not contested that this is an equitable action,'" in which the trial judge has discretion to consider "`alternatives to abating the entire interest in the vehicle.'" Id. (quoting Bennis v. Michigan, 527 N.W.2d 483, 495 (Mich. 1994)).

131. Id. at 453 (quoting Goldsmith-Grant, 254 U.S. at 511).

132. See id. at 453.

133. See Bennis, 516 U.S. at 453 (Thomas, J., concurring).

134. Id. (Thomas, J., concurring).

135. Id. (Thomas, J., concurring).

136. Id. at 454 (Thomas, J., concurring) (citing Herrera v. Collins, 506 U.S. 390, 428 (1993) (Scalia, J., dissenting)).

137. Id. at 455 (Thomas, J., concurring).

138. Id. (Thomas, J., concurring).

139. Bennis, 516 U.S. at 456 (Thomas, J., concurring). Since forfeiture programs related to drugs and sex were instituted in Michigan, over 13,450 cars have been seized in Wayne County, Michigan. See George E. Ward, Bennis And The War Against Drugs, 46 Cath. U. L. Rev. 109, 111 (1996) (George E. Ward was a counsel of record for the state in Bennis v. Michigan). Only 225 challenges to the seizures have been made and the prosecutors' "settlement terms" have netted almost $5.3 million for law enforcement agencies. Id.

140. See Bennis, 516 U.S. at 456-57 (Thomas, J., concurring).

141. See id. at 457 (Ginsburg, J., concurring).

142. Id. (Ginsburg, J., concurring).

143. See id. (Ginsburg, J., concurring). In all likelihood, Mr. Bennis's first name being "John" was not the inspiration for Justice Ginsburg's choice of words here.

144. See Bennis, 516 U.S. at 458 (Stevens, J., dissenting).

145. Id. (Stevens, J., dissenting).

146. Id. (Stevens, J., dissenting).

147. See id. at 459-65 (Stevens, J., dissenting).

148. See id. at 466-70 (Stevens, J., dissenting).

149. 509 U.S. 602 (1993).

150. See Bennis, 516 U.S. at 471-72 (Stevens, J., dissenting).

151. See id. at 459 (Stevens, J., dissenting).

152. See id. at 460 (Stevens, J., dissenting) (citing One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699 (1965)). This third category is known as "derivative contraband." Id. Forfeiture is more problematic with these kinds of property because the government's sweep is broad, and its remedial interest in confiscation is less apparent. See id.

153. Id. at 462 (Stevens, J., dissenting).

154. Id. (Stevens, J., dissenting).

155. See id. (Stevens, J., dissenting).

156. Bennis, 516 U.S. at 462 (Stevens, J., dissenting).

157. See id. at 463 (Stevens, J., dissenting).

158. See id. at 465 (Stevens, J., dissenting).

159. See id. (Stevens, J., dissenting).

160. See id. (Stevens, J., dissenting).

161. See id. at 465-70 (Stevens, J., dissenting).

162. Bennis, 516 U.S. at 465 (Stevens, J., dissenting) (quoting Austin v. United States, 509 U.S. 602, 615 (1993)).

163. Id. at 471 (Stevens, J., dissenting).

164. Id. (Stevens, J., dissenting).

165. See id. (Stevens, J., dissenting).

166. Id. (Stevens, J., dissenting). Justice Stevens noted that, while the majority dismissed recognition of this principle in Calero-Toledo as mere dicta, the principle has existed for nearly 200 years, since the time when Chief Justice Marshall held that it is an "unquestionabl[e]" legal principle that "a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed." Id. (quoting Peisch v. Ware, 8 U.S. 347, 363 (1808)).

167. See id. (Stevens, J., dissenting) (citing Southwestern Tel. & Tel. v. Danaher, 238 U.S. 482, 490-91 (1915) (invalidating penalty under due process clause for conduct that involved "no intentional wrongdoing; no departure from any prescribed or known standard of action, and no reckless conduct")); TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, 454 n.17 (1993) (following Danaher)).

168. Bennis, 516 U.S. at 168 (Stevens, J., dissenting).

169. See id. at 469 (Stevens, J., dissenting).

170. Id. (Stevens, J., dissenting) (quoting United States v. Park, 421 U.S. 658, 673 (1975)). In Park, the Court held that since the corporate officer was powerless to correct the employees' violation, the company was not criminally liable. See Park, 421 U.S. at 673.

171. Bennis, 516 U.S. at 469 (Stevens, J., dissenting).

172. See id. at 469-70 (Stevens, J., dissenting).

173. Id. at 470 (Stevens, J., dissenting).

174. See id. (Stevens, J., dissenting).

175. Id. (Stevens, J., dissenting). In response to Justice Ginsburg's concurring opinion in which she stated that Michigan should not be rebuked for trying to deter prostitution, Justice Stevens pointed out that "the State has accomplished its ends by sacrificing the rights of an innocent person." Id. at 470 n.14. That the car itself may be taken away was no justification for the forfeiture of Tina Bennis's separate interest. See id. at 470. The Michigan Supreme Court did not "stand[] ready to police exorbitant applications of the statute." Id. (quoting id. at 456 (Ginsburg, J., concurring)). The modest value of Tina Bennis's interest in the car did not diminish the "blatant unfairness" of using her property to compensate for her husband's crime. See id. The forfeiture of her share of the car was not justified by the state's purpose of solving the issue of neighborhood blight. See id.

176. See id. at 471 (Stevens, J., dissenting).

177. See Austin v. United States, 509 U.S. 602, 622 (1993).

178. Bennis, 516 U.S. at 471 (Stevens, J., dissenting).

179. See id. at 472 (Stevens, J., dissenting).

180. Id. at 472-73 (Kennedy, J., dissenting).

181. See id. (Kennedy, J., dissenting). Justice Kennedy reasoned, "[w]e can assume the continued validity of our admiralty forfeiture cases without in every analogous instance extending them to the automobile, which is a practical necessity in modern life for so many people." Id. at 473 (Kennedy, J., dissenting).

182. See id. (Kennedy, J., dissenting).

183. Id. (Kennedy, J., dissenting).

184. Bennis, 516 U.S. at 473 (Kennedy, J., dissenting).

185. See supra notes 54-56 and accompanying text.

186. See The Sarah, 21 U.S. (8 Wheat.) 391, 394 (1823) (remanding case for jury trial where goods were seized on land).

187. See Garnharts v. United States 83 U.S. (16 Wall.) 162, 165 (1872) (claimant entitled to jury trial where seizure led to forfeiture on land); Henderson's Distilled Spirits, 81 U.S. (14 Wall.) 44, 53 (1871) (claimant was "entitled" to jury trial because the seizure of property was on land).

188. 272 U.S. 465 (1926).

189. See id. at 467-68 ("The objection [to question the constitutionality of the forfeiture action based on the state's dispensing with the jury trial] is unsubstantial.").

190. See Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 74 (1923).

191. See George C. Pratt & William B. Petersen, Civil Forfeiture in the Second Circuit, 65 St. John's L. Rev. 653, 655-56 (1991). Describing the increased use of government forfeiture, Judge Pratt concluded that "the discord between these two assumptions has increased to the point at which they seem unable to exist." Id. at 656.

192. See United States v. James Daniel Good Real Property, 510 U.S. 43, 61 (1993) ("Individual freedom finds tangible expression in property rights.").

193. See generally Henry Hyde, Forfeiting Our Property Rights: Is Your Property Safe From Seizure? (1995); Anthony J. Franze, Casualties of War?: Drugs, Civil Forfeiture and the Plight of the Innocent Owner, 70 Notre Dame L. Rev. 369 (1994); Presumed Guilty: The Law's Victims in the War on Drugs, Pittsburg Press, Aug. 11, 1991, at 37.

194. See James Daniel Good Real Property, 510 U.S. at 80 (Thomas, J., concurring in part and dissenting in part).

195. Both Democratic and Republican members of Congress are attempting to modify civil forfeiture practices, and two legislative proposals were considered in the 103d Congress. Representative Henry Hyde, an Illinois Republican, introduced the Civil Asset Forfeiture Reform Act. See H.R. 2417, 103d Cong., 1st Sess. (1993). Representative John Conyers, a Michigan Democrat, introduced the Asset Forfeiture Act. See H.R. 3347, 103d Cong., 1st Sess. (1993). These bills represented a bipartisan response to the need for reform. More recently, the Civil Asset Reform Act, a bill sharing many common features with the previous bills, was introduced. See H.R. 1916, 104th Cong., 1st Sess. (1995) (introduced on June 22, 1995).

196. Bennis v. Michigan, 516 U.S. 442, 459 (1996).

197. See Dolan v. City of Tigard, 512 U.S. 374, 392 (1994). For a discussion of the development of property rights and state judicial tests of constitutionality, see Noreen A. Murphy, Note, The Viability of Impact Fees After Nollan and Dolan, 31 New Eng. L. Rev. 203, 215-36 (1996).

198. See Bennis, 516 U.S. at 454 (Thomas, J., concurring) (stating that "this case is ultimately a reminder that the Federal Constitution doesn't prohibit everything that is intensely undesirable").

199. See U.S. Const. amend. 14. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494 (1977); Eide v. Sarasota, 908 F.2d 716 (11th Cir. 1990); Sinaloa Lake Owners' Ass'n v. City of Simi Valley, 882 F.2d 1398 (9th Cir. 1989). See John E. Nowak & Ronald D. Rotunda, Constitutional Law 510-90 (5th ed. 1995).

200. See Morrissey v. Brewer, 408 U.S. 471, 496-97 (1979).

201. See Davis v. United States, 160 U.S. 469, 493 (1995); In re Winship, 397 U.S. 358, 363-64 (1970) (holding that proof beyond a reasonable doubt required for all criminal prosecutions because of the grave injury of a wrongful deprivation of liberty and the social stigma of a criminal conviction, not merely because the actions were labeled "criminal").

202. See Addington v. Texas, 441 U.S. 418, 432-33 (1979) (holding that the state must prove its case by at least clear and convincing evidence in civil commitment proceedings).

203. See In re Winship, 397 U.S. 358, 369-72 (1970) (Harlan, J., concurring) (discussing the impact of shifting burdens). The government should not be able to do indirectly, by changing the classification of a proceeding, what it cannot do directly--punish a citizen without having a fair trial in which the government must prove its charges to a jury beyond a reasonable doubt. Bennis presents a substantive due process question. It is the substance or content of the Michigan statute that is challenged: the absence of an innocent owner provision; the punishment of a person who has committed no crime; and the shifting of the burden of proof onto the shoulders of the innocent owner. In essence, the claim is that the statute violates the Due Process Clause because it is fundamentally unfair. See Nowak & Rotunda, supra note 199, at 510-90.

204. See supra notes 69-72 and accompanying text.

205. See Bennis v. Michigan, 527 N.W.2d 483, 495 (Mich. 1994). ("The trial court has broad discretion to fashion an appropriate remedy."). Since the nuisance-abatement statute is an equitable action, the trial judge may consider alternatives and order a discretionary remedy. See id. In this instance, the trial judge believed that abating the entire interest in the vehicle (both John Bennis's interest and Tina Bennis's interest) was proper. See id. (emphasis added). The Michigan Supreme Court "merely sanction[ed] the trial judge's action . . . and [found] that such action was not an abuse of discretion." Id.

206. See Bennis v. Michigan, 516 U.S. 442, 457 (1996) (Ginsburg, J., concurring). Tina Bennis's loss of her interest in the car amounts to punishment for no wrong act on her part. See infra notes 227-37 and accompanying text.

207. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 688-89 (1974).

208. 8 U.S. 347 (1808).

209. Calero-Toledo, 416 U.S. at 689 (citing J.W. Goldsmith Jr.-Grant Co. v. United States, 254 U.S. 505, 512 (1921)).

210. Id. at 689-90; see also Armstrong v. United States, 364 U.S. 40, 49 (1960); United States v. One Ford Coupe Automobile, 272 U.S. 321, 333 (1926); Van Oster v. United States, 272 U.S. 465, 467 (1926). Furthermore, the Supreme Court has repeated the Calero-Toledo dicta, noting that forfeitures have never been applied when the owner had acted reasonably to prevent the unlawful use of his property. See Austin v. United States, 509 U.S. 602, 616-17 (1993).

211. See Calero-Toledo, 416 U.S. at 689-90.

212. See Bennis, 516 U.S. at 466-67 (Stevens, J., dissenting).

213. The lack of clarity concerning what comprises "all" reasonable steps has not always softened the application of forfeiture power. See, e.g., United States v. One Rockwell Aero Commander, 671 F.2d 414, 418 (10th Cir. 1982) (upholding the forfeiture of an airplane for violating Customs Service regulations even though the aircraft was stolen and the owner was unaware of its activities); United States v. Six Thousand Seven Hundred Dollars, 615 F.2d 1, 3 (1st Cir. 1980) (affirming forfeiture of cash brought into United States illegally even though the cash was embezzled from the owner's estate).

214. See Bennis, 516 U.S. at 469 (Stevens, J., dissenting).

215. 509 U.S. 602 (1993).

216. Austin v. United States, 509 U.S. 602, 615 (1993); see also Laura Larose, Comment, Austin v. United States: Applicability of the Eighth Amendment to Civil In Rem Forfeitures, 29 New Eng. L. Rev. 729, 745-52 (1995). After Austin, the federal circuit courts developed their own tests to determine whether a forfeiture action offended constitutional principles. For example, the Fourth Circuit developed an instrumentality test, following on Justice Scalia's concurrence in Austin. See United States v. Chandler, 36 F.3d 358, 365 (4th Cir. 1994), cert. denied, 514 U.S. 1082 (1995) (developing an analytical framework considering the nexus between the offense and the property, the role and culpability of the owner, and the possibility of separating the offending part of the property from the remainder). The Ninth Circuit utilized a two-part inquiry which combined the Third Circuit's instrumentality analysis with a proportionality analysis. See United States v. 6380 Little Canyon Rd., 59 F.3d 974, 982 (9th Cir. 1994). The proportionality portion of the test reviewed both the tangible and intangible value of the property, and the hardship to the defendant, taking into account the defendant's financial condition. See id. The Second Circuit formulated a three-part test, which emphasized the culpability of the owner, in addition to the factors of (1) harshness of the forfeiture and (2) the relationship between the property and the offense. See United States v. Milbrand, 58 F.3d 841, 848 (2d Cir. 1995), cert. denied, 116 S. Ct. 1284 (1996).

217. See Restatement (Second) of Torts § 308 (1965) ("It is negligence to permit a third party to use a thing . . . which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing . . . in such a manner as to create an unreasonable risk of harm to others.").

218. See Bennis, 516 U.S. at 466-70 (Stevens, J., dissenting).

219. Foucha v. Louisiana, 504 U.S. 71, 95-98 (1992).

220. See id. at 74.

221. See id. at 74-75.

222. Id. at 83.

223. 441 U.S. 520 (1978).

224. Id. at 535.

225. See id. at 539 n.20.

226. Id. at 584.

227. See Austin, 509 U.S. at 613-18. As discussed in note 72, United States v. Ursery, 116 S. Ct. 2135 (1996), does not nullify Austin with respect to an innocent owner.

228. Id. at 619.

229. See id.

230. See id. The specific provisions the Court reviewed in Austin were 21 U.S.C. §§ 881(a)(4), 881(a)(7) (1988). See id.

231. See 21 U.S.C. § 881(a)(4) (1988).

232. Compare Mich. Comp. Laws Ann. § 3825(2) (West 1987) with 21 U.S.C. § 881(a) (1988).

233. Austin, 509 U.S. at 621.

234. See id. "There is nothing even remotely criminal in possessing an automobile." Id. at 620 (quoting One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699 (1965)). The invalidity of the analogy is reinforced by the fact that, under the Michigan statute, the confiscated cars are not destroyed (like contraband) but are sold, with proceeds going into "the State's coffers." See Bennis v. Michigan, 516 U.S. 442, 470 n.14 (1996) (Stevens, J., dissenting); see also infra notes 247-50 and accompanying text.

235. In the State of Michigan's Brief on Appeal to the Michigan Supreme Court, the state specifically acknowledged that forfeitures in this context are punitive, amounting to a low-cost substitute for prosecution of the underlying crime:

Confiscation of an automobile in the context that the defendant's car was seized has an immediate effect upon the nuisance market, driving away the customers and depriving the vice sellers (prostitutes) of buyers. It is a prime example of an inexpensive, cost-effective, non docket-clogging alternative to prosecution and imprisonment. In effect, it is swift and certain punishment of the voluntary vice consumer. Recidivism is practically nil, and the deterrence value is great.Brief for Plaintiff-Appellant at 22, Bennis v. Michigan, 527 N.W.2d 483 (Mich. 1994) (emphasis added).

236. See supra notes 166-72 and accompanying text.

237. Department of Revenue v. Kurth Ranch, 511 U.S. 767, 784 (1994).

238. See United States v. James Daniel Good Real Property, 510 U.S. 43, 56 (1993); Santosky v. Kramer, 455 U.S. 745, 767 (1982) (requiring that a state prove its allegations by at least "clear and convincing" evidence in a proceeding to terminate the rights of parents in their natural children); see also Richard Eggleston, Evidence, Proof and Probability 103-41 (2d ed. 1983).

239. See infra note 243.

240. 424 U.S. 319 (1976). In Mathews, the Supreme Court established a framework for analyzing the constitutionality of a challenged procedural rule. See id. at 323-25.

241. See id.

242. See James Daniel Good Real Property, 510 U.S. at 53 (using the three-part Mathews test to evaluate the constitutionality of ex-parte seizure of property subject to civil forfeiture); Lassiter v. Department of Social Serv., 452 U.S. 18, 27 (1981) (challenge to parental rights termination proceedings); United States v. Veon, 538 F. Supp. 237, 247 (E.D. Cal. 1982) (using the Mathews formula to evaluate the constitutionality of a court order restraining the transfer of property subject to an in rem forfeiture action).

243. See Mathews, 424 U.S. at 334-35. For example, in Fuentes v. Shevin, the Court emphasized the same three considerations. See Fuentes v. Shevin, 407 U.S. 67, 83 n.13, 90 n.22, 91-92 (1983). The Mathews framework has been applied in a variety of contexts. See, e.g., Santosky v. Kramer, 455 U.S. 745, 754 (1982) (burden of proof in parental rights termination proceedings); Addington v. Texas, 441 U.S. 418, 425 (1979) (burden of proof in commitment proceedings).

244. James Daniel Good Real Property, 510 U.S. at 53-56 (citing Mathews, 424 U.S. at 335).

245. Id.

246. Id.

247. Id.; see also id. at 81 (Thomas, J., concurring in part and dissenting in part).

248. See Coleman v. Watt, 40 F.3d 255, 260-61 (8th Cir. 1994).

249. See id.

250. Id.; see also Bennis, 516 U.S. at 473 (Kennedy, J., dissenting).

251. See James Daniel Good Real Property, 510 U.S. at 53-58; Coleman, 40 F.3d at 260-61.

252. United States v. Twelve Thousand, Three Hundred Ninety Dollars, 956 F. 2d 801, 810 (8th Cir. 1992) (Beam, J., dissenting in part). Some commentators have attempted to trivialize Tina Bennis's claim by pointing out that the family had a second vehicle, an old van, and that the confiscated Pontiac did not have great value. See, e.g., George E. Ward, Bennis and the War Against Drugs, 46 Cath. U. L. Rev. 109 (1996) (Mr. Ward was the prosecutor in the Bennis case). As working families know, the difficulty in replacing a reliable used car at a reasonable price is further complicated when both spouses work. Of course, the Court's holding in Bennis applies to property without any stated limitation as to value, opening the door to forfeitures that, no doubt, will appear more egregious.

253. James Daniel Good Real Property, 510 U.S. at 53.

254. See supra notes 165-73 and accompanying text; see also In re Winship, 397 U.S. 358, 369-72 (1970) (Harlan, J., concurring). Justice Harlan's concurring opinion in Winship, that burden of proof allocations are frequently outcome determinative, leaves little doubt that the risk of an erroneous deprivation would be increased significantly by placing the burden of proof on the defendant. See id. (Harlan, J., concurring).

255. See Bennis, 516 U.S. at 465-68 (Stevens, J., dissenting).

256. See James Daniel Good Real Property, 510 U.S. at 53.

257. See id.

258. See Richard Dien Winfield, Rethinking the Legal Process, 39 Am. J. Juris. 153, 164 (1994); Keith N. Hylton, Fee Shifting and Predictability of Law, 71 Chi.-Kent L. Rev. 427, 450-52 (1995).

259. James Daniel Good Real Property, 510 U.S. at 55-56 (quoting Mathews, 424 U.S. at 535).

260. See Bennis, 516 U.S. at 465-70 (Stevens, J., dissenting).

261. See supra notes 69-73 and accompanying text.

262. See James Daniel Good Real Property, 510 U.S. at 56-57.

263. See Bennis, 516 U.S. at 469 n.13 (Stevens, J., dissenting).

264. See supra notes 69-75 and accompanying text.

265. See Foucha v. Louisiana, 504 U.S. at 94 (1992) (Kennedy, J., dissenting) ("We would not allow a State to evade its burden of proof by replacing its criminal law with a civil system in which there is no presumption of innocence and the defendant has the burden of proof.").

266. See supra note 139.

267. See supra notes 227-37 and accompanying text.

268. See supra notes 69-75 and accompanying text.

269. See supra notes 185-265 and accompanying text.

270. Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 60 (1991) (O'Connor, J., dissenting).