Vice Squad
Tuesday, August 24, 2004
One Vice Forfeiture Case

Sorry for being away from Vice Squad in recent days, and thanks to my co-bloggers for stepping up. I returned to Chicago today, so I hope that I can also return to that elusive regular blogging schedule. (My aspirations are lofty, no?)

A couple of weeks ago I mentioned in passing a Supreme Court case involving the forfeiture of an automobile for a prostitution-related conviction. The forfeiture was not one of the "civil" kinds, taken "in rem," against the property directly -- such forfeitures do not require any sort of criminal charges being filed. Rather, this one is against the owners of the property, and is taken pursuant to a criminal conviction. Here's the story of Bennis v. Michigan (1996), adapted from the Supreme Court opinions...

John Bennis was uncharacteristically late coming home from work one night. His wife, Tina Bennis, called Missing Persons. But it soon emerged that instead of driving straight home, John had visited a prostitute and engaged in some extra-marital activity in the car -- and he managed to get arrested for his public infidelity. The state of Michigan, home of the Bennises, doesn't think too highly of prostitution, having adopted a statute that empowered the state to seize and sell the car that was the site of the assignation. So John and Tina's car was indeed seized.

It was the "Tina's" part that caused the Bennises's case to go to the Supreme Court of the United States in 1995. The car was jointly owned, that is, Tina had a half interest in the car. She hadn't done anything wrong, and yet the state of Michigan was taking away that ownership interest, without compensation. Doesn't such a taking violate the due process clause of the Fourteenth Amendment, or the takings clause of the Fifth Amendment, or just general fairness? The US Supreme Court, in a 5-4 decision, said that there was no constitutional problem with the uncompensated auto forfeiture, so Tina was out her half of the car. The Court didn't resolve (though it did note, actually) the fairness question.

Justice Stevens penned a dissent, joined by Justices Souter and Breyer, that looks at the historical rationale for various types of forfeitures, arguing that the Bennis case falls outside of the tradition of legitimate forfeitures. Justice Stevens directly addressed the fairness issue: "Fundamental fairness prohibits the punishment of innocent people." He would hold the forfeiture to be invalid for being in contravention of the Due Process clause of the Fourteenth Amendment -- a position reached, on slightly different reasoning, by Justice Kennedy, too.

The Bennis case does fall squarely within one longstanding US legal tradition, one that has only a couple of notable exceptions. That tradition is that in forfeiture cases involving vice crimes, the forfeitures are upheld. Perhaps soon I will note some other cases in this tradition, as well as the leading exceptions.

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