C. Punishing the Innocent

All civil asset forfeiture punishes the legally innocent because it does not require the government to prove criminal guilt beyond a reasonable doubt before property can be seized and held. Acquittal on the criminal charge to which the property relates will not necessarily immunize an individual from a forfeiture proceeding. Because of the lower standard of proof in forfeiture proceedings, a determination that one is not guilty beyond a reasonable doubt in a criminal trial does not mean that the state will be unable to establish by probable cause (in federal court) or by a preponderance of the evidence (in Michigan court) that property is connected to illegal activity.

The high standard of proof in criminal proceedings supports a policy which seeks to prevent the innocent from being punished. This concern for the innocent is noticeably lacking in forfeiture proceedings, despite the fact that the loss of property punishes the individual. Conversely, even in criminal proceedings where only a fine will be imposed and physical liberty is not at stake, the protections of a criminal trial rule. Thus, basing the differing standards on a distinction between liberty and property interests is, in light of the earlier discussion of property’s relationship to liberty, an imperfect and illegitimate justification.

Beyond individuals legally innocent but "guilty" by a preponderance of evidence (or by a showing of probable cause in federal matters), civil asset forfeiture sweeps under its scope many individuals whom it cannot even connect to illegal activity under such a permissive standard—the truly innocent. The failure to establish a general innocent owner defense in Bennis and the use of the relation-back doctrine both work to adversely affect innocent citizens.

Under the relation-back doctrine, incorporated in the language of many forfeiture statutes, the government’s title to forfeitable property vests at the time the property was used unlawfully. For example, if you purchase a used car from a stranger, and the government five years later proves (by only a preponderance of evidence) that the stranger acquired that car through proceeds obtained through illegal activity, your car is forfeitable to the government. The relation-back doctrine holds that the government’s title is superior to that of any subsequent purchaser, transferee, or owner of the asset. In order to protect himself from the implications of this doctrine, an individual would be required to thoroughly research all of the activities of another person with whom he wishes to transact business. This is a considerable and unreasonable burden. This doctrine has, traditionally, been vigorously defended by the United States Department of Justice.

The doctrine, however, was curtailed in 1993 when the U.S. Supreme Court decided U.S. v. Buena Vista Avenue, Rumson, New Jersey. The Court held that the title does not vest with the government until judicial condemnation of the property. The decision, however, was a matter of statutory interpretation and the ruling does not bar statutory authorization of a relation-back doctrine.

Stating that "Michigan’s failure to provide an innocent owner’s defense was ‘without constitutional consequence,’" both the Michigan Supreme Court and the U.S. Supreme Court held that the state is under no obligation to account for the rights of the innocent when drafting its forfeiture laws. The acts of the user bind the interest of the owner, irrespective of the owner’s culpability.

Lacking a statutory exemption for innocent owners, the courts have refused to find a violation of due process when an owner’s interest in his property is forfeited by the government because of the acts of one using or having co-ownership of the property. Some statutes have, however, incorporated such exemptions. For example, Michigan’s forfeiture law regarding narcotics activity has been interpreted to include a statutory innocent owner’s defense in Section 333.7521 of Michigan’s Compiled Laws.

Such defenses, however, have varying effects. An innocent owner’s defense often requires proof that the owner lacked knowledge of the illegal activity and took all reasonable steps possible in preventing the use of his property in an illegal manner or preventing the property from becoming connected with, or in proximity to, illegal activity. In essence, this limit on the exemption drafts owners as private officers of the law who must take affirmative steps to police those around them and not merely refrain from illegal conduct themselves if they wish to avoid forfeiture.