Two recent significant pronouncements by the United States Supreme Court on forfeiture originated in Michigan. In Bennis v. Michigan, the Court held that the state need not offset an innocent owner’s interest in a forfeited asset. In U.S. v. Ursery, the Court held that in rem civil forfeiture proceedings are neither "punishment" nor criminal for purposes of the Fifth Amendment’s "double jeopardy" provision.

If the goal is to alter policy, then protests against undesirable governmental conduct should be made to the political, not judicial, branches.

As discussed in the introduction, the Bennis case involved the joint ownership of a vehicle by a Royal Oak couple. Subsequent to John Bennis being found conducting illicit activities with a prostitute in that vehicle, Michigan successfully sought to have his car forfeited as a nuisance. His wife then sued the state to recover her half-interest in the car.

The Supreme Court held that an owner, even if unaware that her property will be put to an illegal use, cannot claim a defense to a forfeiture claim and has no legal right to recover against the state. So long as the state can prove the "guilt" of the property by showing its connection to an illegal act by a user or possessor, it retains the ability to seize the property and owes no duty to any innocent owners. In other words, the government’s claim to the property is superior to that of any others exhibiting an ownership interest. The Court also found that because the car was lawfully acquired by the government through a power other than eminent domain, Mrs. Bennis had not been deprived of property without just compensation under the Fifth Amendment’s "takings" clause.

Basing their decision primarily on the strength of precedent and with little discussion of the principles or importance of due process, the U.S. Supreme Court affirmed the ruling of the Michigan Supreme Court. The Court suggested that Mrs. Bennis was strictly liable and could not claim a defense even if she took affirmative steps to prevent illegal usage of her property. In his dissent, Justice John Paul Stevens recognized the consequences of the majority ruling:

The logic of the Court’s analysis would permit the States to exercise virtually unbridled power to confiscate vast amounts of property. . . . 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 . . . [N]either history nor logic supports the Court’s apparent assumption that [the airline, hotel, stadium owners, and car owners’] complete innocence imposes no constitutional impediment to the seizure of their property simply because it provided the locus for a criminal transaction.

Stevens’s concerns should not be dismissed, for the Court’s decision truly does allow a state government to broadly sweep up the innocent when drafting its forfeiture provisions.

At least one member of the Court, Justice Clarence Thomas, seemed to indicate his dislike for the policy while finding no constitutional protection against it. Thomas’s opinion reflects an application of the laudable principle of judicial restraint. For Thomas, the Constitution does not prohibit the legislature from passing statutes such as the one in question in Bennis, nor does it prohibit their application by law enforcement.

Thomas’s concurrence raises an important issue for those concerned with reform. If the goal is to alter policy, then protests against undesirable governmental conduct should be made to the political, not judicial, branches. Reasonable people can disagree as to whether the Constitution recognizes a limit on the government’s power to seize assets. But certainly many of the government’s actions in this area of law are at least unreasonable as a policy matter. Even to those who believe the Constitution prohibits asset forfeiture as currently practiced, the battle in the courts does not look promising. Thus, focusing reform efforts on the legislature is the most prudent alternative.

In Ursery, Michigan police found marijuana growing adjacent to Guy Ursery’s home and also discovered marijuana seeds, stalks, and a plant-growing lamp in the house. Under federal forfeiture laws, the United States sought forfeiture of the house, but Ursery eventually settled the forfeiture suit for $13,250. He was subsequently indicted, tried, and convicted for manufacturing marijuana. A divided Sixth Circuit reversed the conviction arguing that the forfeiture proceeding constituted punishment and thus the criminal prosecution for the same offense was barred by the Fifth Amendment’s "Double Jeopardy" clause.

The Supreme Court analyzed the intent of the statute authorizing forfeiture and found it to be remedial, and not punitive, in nature. Stating that "punishment" for "excessive fines" purposes under Austin v. United States is different than "punishment" for double jeopardy purposes, the Court refused to equate Ursery with its earlier ruling in Austin. If a civil forfeiture statute were to indicate an intent to punish, presumably the outcome of the double jeopardy analysis would be different.