No. 94-8729

TINA B. BENNIS, PETITIONER v. MICHIGAN

on writ of certiorari to the supreme court of michigan

[ March 4, 1996 ]

Justice Stevens , with whom Justice Souter and Justice Breyer join, dissenting.

For centuries prostitutes have been plying their trade on other people's property. Assignations have occurred in palaces, luxury hotels, cruise ships, college dormitories, truck stops, back alleys and back seats. A profession of this vintage has provided governments with countless opportunities to use novel weapons to curtail its abuses. As far as I am aware, however, it was not until 1988 that any State decided to experiment with the punishment of innocent third parties by confiscating property in which, or on which, a single transaction with a prostitute has been consummated.

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. Some airline passengers have marijuana cigarettes in their luggage; some hotel guests are thieves; some spectators at professional sports events carry concealed weapons; and some hitchhikers are prostitutes. The State surely may impose strict obligations on the owners of airlines, hotels, stadiums, and vehicles to exercise a high degree of care to prevent others from making illegal use of their property, but neither logic nor history supports the Court's apparent assumption that their complete innocence imposes noconstitutional impediment to the seizure of their property simply because it provided the locus for a criminal transaction.

In order to emphasize the novelty of the Court's holding, I shall first comment on the tenuous connection between the property forfeited here and the illegal act that was intended to be punished, which differentiates this case from the precedent on which the Court relies. I shall then comment on the significance of the complete lack of culpability ascribable to petitioner in this case. Finally, I shall explain why I believe our recent decision in Austin v. United States, 509 U. S. ___ (1993), compels reversal.

For purposes of analysis it is useful to identify three different categories of property that are subject to seizure: pure contraband; proceeds of criminal activity; and tools of the criminal's trade.

The first category--pure contraband--encompasses items such as adulterated food, sawed off shotguns, narcotics, and smuggled goods. With respect to such "objects the possession of which, without more, constitutes a crime," One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699 (1965), the government has an obvious remedial interest in removing the items from private circulation, however blameless or unknowing their owners may be. The States' broad and well established power to seize pure contraband is not implicated by this case, for automobiles are not contraband. See ibid.

The second category--proceeds--traditionally covered only stolen property, whose return to its original owner has a powerful restitutionary justification. Recent federal statutory enactments have dramatically enlarged this category to include the earnings from various illegal transactions. See United States v. Parcel of Rumson, N. J., Land, 507 U.S. 111, 121, n. 16 (1993). Because those federal statutes include protections for innocent owners, see 21 U.S.C. § 881(a)(6), cases arising out of the seizure of proceeds do not address the question whether the Constitution would provide a defense to an innocent owner in certain circumstances if the statute had not done so. The prevalence of protection for innocent owners in such legislation does, however, lend support to the conclusion that elementary notions of fairness require some attention to the impact of a seizure on the rights of innocent parties. [n.1]

The third category includes tools or instrumentalities that a wrongdoer has used in the commission of a crime, also known as "derivative contraband," see One 1958 Plymouth Sedan, 380 U. S., at 699. Forfeiture is more problematic for this category of property than for the first two, both because of its potentially far broader sweep, and because the government's remedial interest in confiscation is less apparent. Many of our earliest cases arising out of these kinds of seizures involved ships that engaged in piracy on the high seas, [n.2] in the slave trade, [n.3] or in the smuggling of cargoes of goods into the United States. [n.4] These seizures by the sovereign were approved despite the faultlessness of the ship's owner. Because the entire mission of the ship was unlawful, admiralty law treated the vessel itself as if it were the offender. [n.5] Moreover, under "the maritime law of the Middle Ages the ship was not only the source, but the limit, of liability." [n.6]

The early admiralty cases demonstrate that the law may reasonably presume that the owner of valuable property is aware of the principal use being made of that property. That presumption provides an adequate justification for the deprivation of one's title to real estate because of another's adverse possession for a period of years or for a seizure of such property because its principal use is unlawful. Thus, in Dobbins's Distillery v. United States, 96 U.S. 395, 399 (1878), we upheld the seizure of premises on which the lessee operated an unlawful distillery when the owner "knowingly suffer[ed] and permitt[ed] his land to be used as a site" for that distillery. And despite the faultlessness of their owners, we have upheld seizures of vehicles being used to transport bootleg liquor, or to smuggle goods into the United States in violation of our customs laws. [n.7]

While our historical cases establish the propriety of seizing a freighter when its entire cargo consists of smuggled goods, none of them would justify the confiscation of an ocean liner just because one of its passengers sinned while on board. See, e.g., Phile v. Ship Anna, 1 Dall. 197, 206 (C. P. Phila. Cty. 1787) (holding that forfeiture of a ship was inappropriate if an item of contraband hidden on board was "a trifling thing, easily concealed, and which might fairly escape the notice of the captain"); J. W. Goldsmith, Jr. Grant Co. v. United States, 254 U.S. 505, 512 (1921) (expressing doubt about expansive forfeiture applications). The principal use of the car in this case was not to provide a site for petitioner's husband to carry out forbidden trysts. Indeed, there is no evidence in the record that the car had ever previously been used for a similar purpose. 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.

This case differs from our historical precedents in a second, crucial way. In those cases, the vehicles or the property actually facilitated the offenses themselves. See Goldsmith Grant Co., 254 U. S., at 513 (referring to "the adaptability of a particular form of property to an illegal purpose"); Harmony v. United States, 2 How. 210, 235 (1844). Our leading decisions on forfeited conveyances, for example, involved offenses of which transportation was an element. In Van Oster v. Kansas, 272 U.S. 465 (1926), for example, the applicable statute prohibited transportation of intoxicating liquor. See id., at 466. See also Carroll v. United States, 267 U.S. 132, 136 (1925) (car had concealed compartments for carrying liquor). In Calero Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), similarly, a yacht was seized because it had been used "to transport, or to facilitate the transportation of" a controlled substance. See id., at 665-666. [n.8] Here, on the other hand, the forfeited property bore no necessary connection to the offense committed by petitioner's husband. It is true that the act occurred in the car, but it might just as well have occurred in a multitude of other locations. The mobile character of the car played a part only in the negotiation, but not in the consummation of the offense.

In recent years, a majority of the members of this Court has agreed that the concept of an instrumentality subject to forfeiture--also expressed as the idea of "tainted" items--must have an outer limit. In Austin, the Court rejected the argument that a mobile home and auto body shop where an illegal drug transaction occurred were forfeitable as "instruments" of the drug trade. 509 U. S., at ___ (slip op., at 18). Justice Scalia agreed that a building in which an isolated drug sale happens to take place also cannot be regarded as an instrumentality of that offense. Id., at ___ (slip op., at 6) (opinion concurring in part and concurring in judgment). Justice Thomas, too, has stated that it is difficult to see how real property bearing no connection to crime other than serving as the location for a drug transaction is in any way "guilty" of an offense. See United States v. James Daniel Good Real Property, 510 U. S. ___, ___ (1993) (slip op., at 2-3) (opinion concurring in part and dissenting in part). The car in this case, however, was used as little more than an enclosure for a one time event, effectively no different from a piece of real property. [n.9] By the rule laid down in our recent cases, that nexus is insufficient to support the forfeiture here.

The State attempts to characterize this forfeiture as serving exclusively remedial, as opposed to punitive ends, because its goal was to abate what the State termed a "nuisance." Even if the State were correct, that argument would not rebut the excessiveness of the forfeiture, which I have discussed above. But in any event, there is no serious claim that the confiscation in this case was not punitive. The majority itself concedes that " `forfeiture serves, at least in part, to punish the owner.' " Ante, at 10 (quoting Austin, 509 U. S., at ___ (slip op. at 15)). [n.10] At an earlier stage of this litigation, the State unequivocally argued that confiscation of automobiles in the circumstances of this case "is swift and certain `punishment' of the voluntary vice consumer." Brief for Plaintiff Appellant in No. 97339 (Mich.), p. 22. Therefore, the idea that this forfeiture did not punish petitioner's husband--and, a fortiori, petitioner herself--is simply not sustainable.

Even judged in isolation, the remedial interest in this forfeiture falls far short of that which we have found present in other cases. Forfeiture may serve remedial ends when removal of certain items (such as a burglar's tools) will prevent repeated violations of the law (such as housebreaking). See, e.g., United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364 (1984) (confiscation of unregistered shotguns); see also C. J. Hendry Co. v. Moore, 318 U.S. 133 (1943) (seizure of fishing nets used in violation of state fishing laws). But confiscating petitioner's car does not disable her husband from using other venues for similar illegal rendezvous, since all that is needed to commit this offense is a place. In fact, according to testimony at trial, petitioner's husband had been sighted twice during the previous summer, without the car, soliciting prostitutes in the same neighborhood. [n.11] The remedial rationale is even less convincing according to the State's "nuisance" theory, for that theory treats the car as a nuisance only so long as the illegal event is occurring and only so long as the car is located in the relevant neighborhood. See n. 9, supra. The need to "abate" the car thus disappears the moment it leaves the area. In short, therefore, a remedial justification simply does not apply to a confiscation of this type. See generally Clark, Civil and Criminal Penalties and Forfeitures: A Framework for Constitutional Analysis, 60 Minn. L. Rev. 379, 479-480 (1976).

Apart from the lack of a sufficient nexus between petitioner's car and the offense her husband committed, I would reverse because petitioner is entirely without responsibility for that act. Fundamental fairness prohibits the punishment of innocent people.

The majority insists that it is a settled rule that the owner of property is strictly liable for wrongful uses to which that property is put. See ante, at 4-8. Only three Terms ago, however, the Court surveyed the same historical antecedents and held that all of its forfeiture decisions rested "at bottom, 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." Austin v. United States, 509 U. S., at ___ (slip op., at ___) (citing Calero Toledo, Goldsmith Grant Co., Dobbins's Distillery, Harmony, and The Palmyra). According to Austin, even the hoary fiction that property was forfeitable because of its own guilt was based on the idea that " ` "such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by the forfeiture." ' " 509 U. S., at ___, (slip op., at 13), quoting Goldsmith Grant Co., 254 U. S., at 510-511, in turn quoting 1 W. Blackstone, Commentaries *301. It is conceded that petitioner was in no way negligent in her use or entrustment of the family car. Thus, no forfeiture should have been permitted. The majority, however, simply ignores Austin's de tailed analysis of our case law without explanation or comment.

Even assuming that strict liability applies to "innocent" owners, we have consistently recognized an exception for truly blameless individuals. The Court's opinion in Calero Toledo v. Pearson Yacht Leasing Co., 416 U. S., at 688-690, established the proposition that the Constitution bars the punitive forfeiture of property when its owner alleges and proves that he took all reasonable steps to prevent its illegal use. Accord Austin, 509 U. S., at ___ (slip op., at 12). The majority dismisses this statement as "obiter dictum," ante, at 8, but we have assumed that such a principle existed, or expressly reserved the question, in a line of cases dating back nearly 200 years. In one of its earliest decisions, the Court, speaking through Chief Justice Marshall, recognized as "unquestionably a correct 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." Peisch v. Ware, 4 Cranch 347, 363 (1808). [n.12] In other contexts, we have regarded as axiomatic that persons cannot be punished when they have done no wrong. See Southwestern Telegraph & Telephone Co. v. Danaher, 238 U.S. 482, 490-491 (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 Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 454, and n. 17 (1993) (following Danaher); Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978); see also Bell v. Wolfish, 441 U.S. 520, 580 (1979) (Stevens, J., dissenting). I would hold now what we have always assumed: that the principle is required by due process.

The unique facts of this case demonstrate that petitioner is entitled to the protection of that rule. The subject of this forfeiture was certainly not contraband. It was not acquired with the proceeds of criminal activity and its principal use was entirely legitimate. It was an ordinary car that petitioner's husband used to commute to the steel mill where he worked. Petitioner testified that they had been married for nine years; that she had acquired her ownership interest in the vehicle by the expenditure of money that she had earned herself; that she had no knowledge of her husband's plans to do anything with the car except "come directly home from work," as he had always done before; and that she even called "Missing Persons" when he failed to return on the night in question. App. 8-10. Her testimony is not contradicted and certainly is credible. Without knowledge that he would commit such an act in the family car, or that he had ever done so previously, surely petitioner cannot be accused of failing to take "reasonable steps" to prevent the illicit behavior. She is just as blameless as if a thief, rather than her husband, had used the car in a criminal episode.

While the majority admits that this forfeiture is at least partly punitive in nature, it asserts that Michigan's law also serves a "deterrent purpose distinct from any punitive purpose." See ante, at 10. But that is no distinction at all; deterrence is itself one of the aims of punishment. United States v. Halper, 490 U.S. 435, 448 (1989). [n.13] Even on a deterrence rationale, more over, that goal is not fairly served in the case of a person who has taken all reasonable steps to prevent an illegal act.

Forfeiture of an innocent owner's property that plays a central role in a criminal enterprise may be justified on reasoning comparable to the basis for imposing liability on a principal for an agent's torts. Just as the risk of respondeat superior liability encourages employers to supervise more closely their employees' conduct, see Arizona v. Evans, 514 U. S. ___, ___, n. 5 (1995) (slip op., at 6-7, n. 5) (Ginsburg, J., dissenting), so the risk of forfeiture encourages owners to exercise care in entrusting their property to others. See Calero Toledo, 416 U. S., at 687; ante, at 10. But the law of agency recognizes limits on the imposition of vicarious liability in situations where no deterrent function is likely to be served; for example, it exonerates the employer when the agent strays from his intended mission and embarks on a "frolic of his own." See also United States v. Park, 421 U.S. 658, 673 (1975) (vicarious criminal liability for corporate officer based on company's conduct impermissible if officer was " `powerless' to prevent or correct the violation") (citation omitted). In this case, petitioner did not "entrust" the car to her husband on the night in question; he was entitled to use it by virtue of their joint ownership. There is no reason to think that the threat of forfeiture will deter an individual from buying a car with her husband--or from marrying him in the first place--if she neither knows nor has reason to know that he plans to use it wrongfully.

The same is true of the second asserted justification for strict liability, that it relieves the State of the difficulty of proving collusion, or disproving the lack thereof, by the alleged innocent owner and the wrongdoer. See ante, at 10 (citing Van Oster v. Kansas, 272 U.S. 465, 467-468 (1926)). Whatever validity that interest might have in another kind of case, it has none here. It is patently clear that petitioner did not collude with her husband to carry out this offense.

The absence of any deterrent value reinforces the punitive nature of this forfeiture law. But petitioner has done nothing that warrants punishment. She cannot be accused of negligence or of any other dereliction in allowing her husband to use the car for the wholly legitimate purpose of transporting himself to and from his job. She affirmatively alleged and proved that she is not in any way responsible for the conduct that gave rise to the seizure. If anything, she was a victim of that conduct. In my opinion, these facts establish that the seizure constituted an arbitrary deprivation of property without due process of law. [n.14]

The Court's holding today is dramatically at odds with our holding in Austin v. United States. We there established that when a forfeiture constitutes "payment to a sovereign as punishment for some offense"--as it undeniably does in this case--it is subject to the limitations of the Eighth Amendment's Excessive Fines Clause. For both of the reasons I have already discussed, the forfeiture of petitioner's half interest in her car is surely a form of "excessive" punishment. For an individual who merely let her husband use her car to commute to work, even a modest penalty is out of all proportion to her blameworthiness; and when the assessment is confiscation of the entire car, simply because an illicit act took place once in the driver's seat, the punishment is plainly excessive. This penalty violates the Eighth Amendment for yet another reason. Under the Court's reasoning, the value of the car is irrelevant. A brand new luxury sedan or a ten year old used car would be equally forfeitable. We have held that "dramatic variations" in the value of conveyances subject to forfeiture actions undercut any argument that the latter are reasonably tied to remedial ends. See Austin, 509 U. S., at ___ (slip op., at 18-20); United States v. Ward, 448 U.S. 242, 254 (1980).

I believe the Court errs today by assuming that the power to seize property is virtually unlimited and by implying that our opinions in Calero Toledo and Austin were misguided. Some 75 years ago, when presented with the argument that the forfeiture scheme we approved had no limit, we insisted that expansive application of the law had not yet come to pass. "When such application shall be made," we said, "it will be time enough to pronounce upon it." Goldsmith Grant Co., 254 U. S., at 512. That time has arrived when the State forfeits a woman's car because her husband has secretly committed a misdemeanor inside it. While I am not prepared to draw a bright line that will separate the permissible and impermissible forfeitures of the property of innocent owners, I am convinced that the blatant unfairness of this seizure places it on the unconstitutional side of that line.

I therefore respectfully dissent.

Notes