BENNIS v. MICHIGAN
No. 94-8729
Supreme Court of the United States
Argued November 29, 1995—Decided March 4, 1996
516 U.S. 442
Stefan B. Herpel argued the cause and filed briefs for petitioner.
Larry L. Roberts argued the cause for respondent. With him on the brief were John D. O‘Hair and George E. Ward.
Richard H. Seamon argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben.*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner was a joint owner, with her husband, of an automobile in which her husband engaged in sexual activity with a prostitute. A Michigan court ordered the automobile forfeited as a public nuisance, with no offset for her interest, notwithstanding her lack of knowledge of her husband‘s activity. We hold that the Michigan court order did not offend the Due Process Clause of the Fourteenth Amendment or the Takings Clause of the Fifth Amendment.
Detroit police arrested John Bennis after observing him engaged in a sexual act with a prostitute in the automobile while it was parked on a Detroit city street. Bennis was convicted of gross indecency.1 The State then sued both
Petitioner defended against the abatement of her interest in the car on the ground that, when she entrusted her husband to use the car, she did not know that he would use it to violate Michigan‘s indecency law. The Wayne County Circuit Court rejected this argument, declared the car a public nuisance, and ordered the car‘s abatement. In reaching this disposition, the trial court judge recognized the remedial discretion he had under Michigan‘s case law. App. 21. He
The Michigan Court of Appeals reversed, holding that regardless of the language of
The Michigan Supreme Court reversed the Court of Appeals and reinstated the abatement in its entirety. 447 Mich. 719, 527 N. W. 2d 483 (1994). It concluded as a matter of state law that the episode in the Bennis vehicle was an abatable nuisance. Rejecting the Court of Appeals’ interpretation of
We granted certiorari in order to determine whether Michigan‘s abatement scheme has deprived petitioner of her interest in the forfeited car without due process, in violation of the
The gravamen of petitioner‘s due process claim is not that she was denied notice or an opportunity to contest the abatement of her car; she was accorded both. Cf. United States v. James Daniel Good Real Property, 510 U.S. 43 (1993). Rather, she claims she was entitled to contest the abatement by showing she did not know her husband would use it to violate Michigan‘s indecency law. But a long and unbroken line of cases holds that an owner‘s interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use.
Our earliest opinion to this effect is Justice Story‘s opinion for the Court in The Palmyra, 12 Wheat. 1 (1827). The Pal-
In Dobbins‘s Distillery v. United States, 96 U.S. 395, 401 (1878), this Court upheld the forfeiture of property used by a lessee in fraudulently avoiding federal alcohol taxes, observing: “Cases often arise where the property of the owner is forfeited on account of the fraud, neglect, or misconduct of those intrusted 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.”
In Van Oster v. Kansas, 272 U.S. 465 (1926), this Court upheld the forfeiture of a purchaser‘s interest in a car misused by the seller. Van Oster purchased an automobile from a dealer but agreed that the dealer might retain possession for use in its business. The dealer allowed an associate to use the automobile, and the associate used it for the illegal transportation of intoxicating liquor. Id., at 465-466. The State brought a forfeiture action pursuant to a Kansas stat-
“It is not unknown or indeed uncommon for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted it. Much of the jurisdiction in admiralty, so much of the statute and common law of liens as enables a mere bailee to subject the bailed property to a lien, the power of a vendor of chattels in possession to sell and convey good title to a stranger, are familiar examples. . . . They suggest that certain uses of property may be regarded as so undesirable that the owner surrenders his control at his peril. . . .”
“It has long been settled that statutory forfeitures of property entrusted by the innocent owner or lienor to another who uses it in violation of the revenue laws of the United States is not a violation of the due process clause of the
Fifth Amendment .” Id., at 467-468.
The Van Oster Court relied on J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505 (1921), in which the Court upheld the forfeiture of a seller‘s interest in a car misused by the purchaser. The automobile was forfeited after the purchaser transported bootleg distilled spirits in it, and the selling dealership lost the title retained as security for unpaid purchase money. Id., at 508-509. The Court discussed the arguments for and against allowing the forfeiture of the interest of an owner who was “without guilt,” id., at 510, and concluded that “whether the reason for [the challenged forfeiture scheme] be artificial or real, it is too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced,” id., at 511.5
The dissent, post, at 466-468, and n. 12, quoting Peisch v. Ware, 4 Cranch 347, 364 (1808), seeks to enlarge the reservation in Goldsmith-Grant into a general 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.‘” But Peisch was dealing with the same question reserved in Goldsmith-Grant, not any broader proposition: “If, by private theft, or open robbery, without any fault on his part, [an owner‘s] property should be invaded, . . . the law cannot be understood to punish him with the forfeiture of that property.” 4 Cranch, at 364.
In Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), the most recent decision on point, the Court reviewed the same cases discussed above, and concluded that “the innocence of the owner of property subject to forfeiture has almost uniformly been rejected as a defense.” Id., at 683. Petitioner is in the same position as the various owners involved in the forfeiture cases beginning with The Palmyra in 1827. She did not know that her car would be used in an illegal activity that would subject it to forfeiture. But under these cases the Due Process Clause of the
Petitioner relies on a passage from Calero-Toledo, that “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
JUSTICE STEVENS’ dissent argues that our cases treat contraband differently from instrumentalities used to convey contraband, like cars: Objects in the former class are forfeitable “however blameless or unknowing their owners may be,” post, at 459, but with respect to an instrumentality in the latter class, an owner‘s innocence is no defense only to the “principal use being made of that property,” post, at 461. However, this Court‘s precedent has never made the due process inquiry depend on whether the use for which the instrumentality was forfeited was the principal use. If it had, perhaps cases like Calero-Toledo, in which Justice Douglas noted in dissent that there was no showing that the “yacht had been notoriously used in smuggling drugs . . . and so far as we know only one marihuana cigarette was found on the yacht,” 416 U. S., at 693 (opinion dissenting in part), might have been decided differently.
The dissent also suggests that The Palmyra line of cases “would justify the confiscation of an ocean liner just because one of its passengers sinned while on board.” Post, at 462. None of our cases have held that an ocean liner may be confiscated because of the activities of one passenger. We said in Goldsmith-Grant, and we repeat here, that “[w]hen such
Notwithstanding this well-established authority rejecting the innocent-owner defense, petitioner argues that we should in effect overrule it by importing a culpability requirement from cases having at best a tangential relation to the “innocent owner” doctrine in forfeiture cases. She cites Foucha v. Louisiana, 504 U.S. 71 (1992), for the proposition that a criminal defendant may not be punished for a crime if he is found to be not guilty. She also argues that our holding in Austin v. United States, 509 U.S. 602 (1993), that the Excessive Fines Clause6 limits the scope of civil forfeiture judgments, “would be difficult to reconcile with any rule allowing truly innocent persons to be punished by civil forfeiture.” Brief for Petitioner 18-19, n. 12.
In Foucha the Court held that a defendant found not guilty by reason of insanity in a criminal trial could not be thereafter confined indefinitely by the State without a showing that he was either dangerous or mentally ill. Petitioner argues that our statement that in those circumstances a State has no “punitive interest” which would justify continued detention, 504 U. S., at 80, requires that Michigan demonstrate a punitive interest in depriving her of her interest in the forfeited car. But, putting aside the extent to which a forfeiture proceeding is “punishment” in the first place, Foucha did not purport to discuss, let alone overrule, The Palmyra line of cases.
In Austin, the Court held that because “forfeiture serves, at least in part, to punish the owner,” forfeiture proceedings are subject to the limitations of the
In any event, for the reasons pointed out in Calero-Toledo and Van Oster, forfeiture also serves a deterrent purpose distinct from any punitive purpose. Forfeiture of property prevents illegal uses “both by preventing further illicit use of the [property] and by imposing an economic penalty, thereby rendering illegal behavior unprofitable.” Calero-Toledo, supra, at 687. This deterrent mechanism is hardly unique to forfeiture. For instance, because Michigan also deters dangerous driving by making a motor vehicle owner liable for the negligent operation of the vehicle by a driver who had the owner‘s consent to use it, petitioner was also potentially liable for her husband‘s use of the car in violation of Michigan negligence law.
Petitioner also claims that the forfeiture in this case was a taking of private property for public use in violation of the Takings Clause of the
At bottom, petitioner‘s claims depend on an argument that the Michigan forfeiture statute is unfair because it relieves prosecutors from the burden of separating co-owners who are complicit in the wrongful use of property from innocent co-owners. This argument, in the abstract, has considerable appeal, as we acknowledged in Goldsmith-Grant, 254 U. S., at 510. Its force is reduced in the instant case, however, by the Michigan Supreme Court‘s confirmation of the trial court‘s remedial discretion, see supra, at 446, and petitioner‘s recognition that Michigan may forfeit her and her husband‘s car whether or not she is entitled to an offset for her interest in it, Tr. of Oral Arg. 7, 9.
We 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.” Goldsmith-Grant, supra, at 511. The State here sought to deter illegal activity that contributes to neighborhood deterioration and unsafe streets. The Bennis automobile, it is conceded, facilitated and was used in criminal activity. Both the trial court and the Michigan Supreme Court followed our longstanding practice, and the judgment of the Supreme Court of Michigan is therefore
Affirmed.
JUSTICE THOMAS, concurring.
I join the opinion of the Court.
Mrs. Bennis points out that her property was forfeited even though the State did not prove her guilty of any wrongdoing. The State responds that forfeiture of property simply because it was used in crime has been permitted time out of mind. It also says that it wants to punish, for deterrence and perhaps also for retributive purposes, persons who may have colluded or acquiesced in criminal use of their
As the Court notes, evasion of the normal requirement of proof before punishment might well seem “unfair.” Ante, at 453. One 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. As the Court remarked 75 years ago in ruling upon a constitutional challenge to forfeiture of the property of an innocent owner:
“If the case were the first of its kind, it and its apparent paradoxes might compel a lengthy discussion to harmonize the [statute at issue] with the accepted tests of human conduct. . . . There is strength . . . in the contention that . . . [the statute at issue] seems to violate that justice which should be the foundation of the due process of law required by the Constitution.” J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505, 510 (1921).
But the Court went on to uphold the statute, based upon the historical prevalence and acceptance of similar laws. Id., at 510-511.
This case is ultimately a reminder that the Federal Constitution does not prohibit everything that is intensely undesirable. See, e. g., Herrera v. Collins, 506 U. S. 390, 428, and n. (1993) (SCALIA, J., concurring). As detailed in the Court‘s opinion and the cases cited therein, forfeiture of property without proof of the owner‘s wrongdoing, merely because it was “used” in or was an “instrumentality” of crime has been permitted in England and this country, both before and after the adoption of the
The limits on what property can be forfeited as a result of what wrongdoing—for example, what it means to “use” property in crime for purposes of forfeiture law—are not clear to me. See United States v. James Daniel Good Real Property, 510 U. S. 43, 81-83 (1993) (THOMAS, J., concurring in part and dissenting in part). Those limits, whatever they may be, become especially significant when they are the sole restrictions on the state‘s ability to take property from those it merely suspects, or does not even suspect, of colluding in crime. It thus seems appropriate, where a constitutional challenge by an innocent owner is concerned, to apply those limits rather strictly, adhering to historical standards for determining whether specific property is an “instrumentality” of crime. Cf. J. W. Goldsmith, Jr.-Grant Co., supra, at 512 (describing more extreme hypothetical applications of a forfeiture law and reserving decision on the permissibility of such applications). The facts here, however, do not seem to me to be obviously distinguishable from those involved in Van Oster; and in any event, Mrs. Bennis has not asserted that the car was not an instrumentality of her husband‘s crime.
If anything, the forfeiture in Van Oster was harder to justify than is the forfeiture here, albeit in a different respect.
Improperly used, forfeiture could become more like a roulette wheel employed to raise revenue from innocent but hapless owners whose property is unforeseeably misused, or a tool wielded to punish those who associate with criminals, than a component of a system of justice. When the property sought to be forfeited has been entrusted by its owner to one who uses it for crime, however, the Constitution apparently
JUSTICE GINSBURG, concurring.
I join the opinion of the Court and highlight features of the case key to my judgment.
The dissenting opinions target a law scarcely resembling Michigan‘s “red light abatement” prescription, as interpreted by the State‘s courts. First, it bears emphasis that the car in question belonged to John Bennis as much as it did to Tina Bennis. At all times he had her consent to use the car, just as she had his. See ante, at 448-449, n. 5 (majority opinion) (noting Michigan Supreme Court‘s distinction between use of a vehicle without the owner‘s consent, and use with consent but in a manner to which the owner did not consent). And it is uncontested that Michigan may forfeit the vehicle itself. See ante, at 453 (majority opinion) (citing Tr. of Oral Arg. 7, 9). The sole question, then, is whether Tina Bennis is entitled not to the car, but to a portion of the proceeds (if any there be after deduction of police, prosecutorial, and court costs) as a matter of constitutional right.
Second, it was “critical” to the judgment of the Michigan Supreme Court that the nuisance abatement proceeding is an “equitable action.” See ante, at 446 (majority opinion) (citing 447 Mich. 719, 742, 527 N. W. 2d 483, 495 (1994)). That means the State‘s Supreme Court stands ready to police exorbitant applications of the statute. It shows no respect for Michigan‘s high court to attribute to its members tolerance of, or insensitivity to, inequitable administration of an “equitable action.”
Nor is it fair to charge the trial court with “blatant unfairness” in the case at hand. See post, at 470-471, n. 14, and 472 (STEVENS, J., dissenting). That court declined to order a division of sale proceeds, as the trial judge took pains to explain, for two practical reasons: the Bennises have “an-
Michigan, in short, has not embarked on an experiment to punish innocent third parties. See post this page (STEVENS, J., dissenting). Nor do we condone any such experiment. Michigan has decided to deter johns from using cars they own (or co-own) to contribute to neighborhood blight, and that abatement endeavor hardly warrants this Court‘s disapprobation.
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
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. 602 (1993), compels reversal.
I
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.
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,2 in the slave trade,3 or in the smuggling of cargoes of goods into the United States.4 These seizures by the sovereign
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 trans-
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 id., 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
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 621. 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 627-628 (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. 43, 81-82 (1993) (opinion concurring in part and dissenting in part). The car in this case, however,
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 451 (quoting Austin, 509 U. S., at 618).10 At an earlier stage of this litigation,
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.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 446-450. 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 615 (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 616, 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 detailed 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 616-617. The majority
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.” Ante, at 452. 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).13 Even on a deterrence rationale, moreover, 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. 1, 29, n. 5 (1995) (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 452. 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
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 452 (citing Van Oster v. Kansas, 272 U. S., at 467-468). 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.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
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.
JUSTICE KENNEDY, dissenting.
The forfeiture of vessels pursuant to the admiralty and maritime law has a long, well-recognized tradition, evolving as it did from the necessity of finding some source of compensation for injuries done by a vessel whose responsible owners were often half a world away and beyond the practical reach of the law and its processes. See Harmony v. United States, 2 How. 210, 233 (1844); Republic Nat. Bank of Miami v. United States, 506 U. S. 80, 87-88 (1992). The prospect of deriving prompt compensation from in rem forfeiture, and the impracticality of adjudicating the innocence of the owners or their good-faith efforts in finding a diligent and trustworthy master, combined to eliminate the owner‘s lack of culpability as a defense. See Harmony v. United States, supra, at 233. Those realities provided a better justification for forfeiture than earlier, more mechanistic rationales. Cf. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 680-681 (1974) (discussing deodands). The tradeoff, of course, was that the owner‘s absolute liability was limited to the amount of the vessel and (or) its cargo. For that reason, it seems to me inaccurate, or at least not well supported, to say that the owner‘s personal culpability was part of the forfeiture rationale. Austin v. United States, 509 U. S. 602, 625 (1993) (SCALIA, J., concurring in part and concurring in judgment); id., at 628-629 (KENNEDY, J., concurring in part and concurring in judgment). AS JUSTICE STEVENS observes, however, ante, at 466-467, even the well-recognized
We 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. At least to this point, it has not been shown that a strong presumption of negligent entrustment or criminal complicity would be insufficient to protect the government‘s interest where the automobile is involved in a criminal act in the tangential way that it was here. Furthermore, as JUSTICE STEVENS points out, ante, at 462-463, the automobile in this case was not used to transport contraband, and so the seizure here goes beyond the line of cases which sustain the government‘s use of forfeiture to suppress traffic of that sort.
This forfeiture cannot meet the requirements of due process. Nothing in the rationale of the Michigan Supreme Court indicates that the forfeiture turned on the negligence or complicity of petitioner, or a presumption thereof, and nothing supports the suggestion that the value of her co-ownership is so insignificant as to be beneath the law‘s protection.
For these reasons, and with all respect, I dissent.
Notes
“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 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.”
“(1) Order of abatement. If the existence of the nuisance is established in an action as provided in this chapter, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the building or place of all furniture, fixtures and contents therein and shall direct the sale thereof in the manner provided for the sale of chattels under execution . . . .
“(2) Vehicles, sale. Any vehicle, boat, or aircraft found by the court to be a nuisance within the meaning of this chapter, is subject to the same order and judgment as any furniture, fixtures and contents as herein provided.
“(3) Sale of personalty, costs, liens, balance to state treasurer. Upon the sale of any furniture, fixtures, contents, vehicle, boat or aircraft as provided in this section, the officer executing the order of the court shall, after deducting the expenses of keeping such property and costs of such sale, pay all liens according to their priorities . . . , and shall pay the balance to the state treasurer to be credited to the general fund of the state. . . .”
In Peisch, a ship was wrecked in Delaware Bay and its cargo unladen and carried off by salvors. The United States sought forfeiture of the cargo on several grounds, including failure to pay duties on certain distilled spirits in the cargo at the time of importation, and removal of the same from the tax collector before assessment. This Court held that forfeiture was impermissible because the ship‘s owners were unable to comply with the customs law regarding importation, since the crew had deserted the ship before landing, and the vessel could not be brought into port. 4 Cranch, at 363. As quoted above, the Court held that forfeiture is inappropriate when the means to prevent the violation cannot be carried out.
As a separate reason for rejecting the forfeiture, the Court explained that the owners could not be made to suffer for actions taken by the salvors, persons over whom the owners had no control. As the Court put it, an owner should not be “punished” by the forfeiture of property taken “by private theft, or open robbery, without any fault on his part....” Id., at 364. That rule has itself become an established part of our jurisprudence. See Austin, 509 U. S., at 614-615; Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 688-690 (1974); Goldsmith-Grant Co., 254 U. S., at 512; United States v. One Ford Coupe Automobile, 272 U. S. 321, 333 (1926); Van Oster v. Kansas, 272 U. S., at 467. While both of the principles announced in Peisch arose out of the same set of facts, the majority errs when it treats them as identical. See ante, at 448-449, n. 5. Chief Justice Marshall‘s opinion discussed and justified each principle independently, and either could apply in the absence of the other.
Richard K. Willard and Robert Teir filed a brief of amicus curiae for the American Alliance for Rights and Responsibilities et al. This is most obviously true if, in stating that there would be little left over after “costs,” the trial judge was referring to the costs of sale. The court‘s order indicates that he may have had other “costs” in mind as well when he made that statement, e. g., law enforcement costs. See also