Innocent Owners and Guilty Property

Download Edit this record How to cite View on PhilPapers
Abstract
American in rem, or civil, forfeiture laws seem to implicate constitutional concerns insofar as such laws may authorize the government to confiscate privately owned property, regardless of the guilt or innocence of the owner. Historically, the justification of in rem forfeiture law has rested on the legal fiction that “[t]he thing is . . . primarily considered as the offender, or rather the offense is attached primarily to the thing.” Last Term, in Bennis v. Michigan, the Supreme Court upheld the constitutionality of a public nuisance statute that authorized the government to abate a car-owner’s property interest, even though there had been no showing of negligence or wrongdoing on the part of the owner herself. Referring to this country’s “longstanding practice” of in rem forfeiture proceedings, the Court held that abatement under the Michigan statute neither offended due process nor violated the Fifth Amendment’s prohibition against takings without just compensation. By basing its decision on precedent, the Court prudently resisted the temptation to legislate from the bench. The Court also reached the right result in denying relief to Mrs. Bennis. Unfortunately, the Court’s appeal to past practice did not adequately address the constitutional concerns raised by the case. If the Court had said more about the traditional purpose and limits of in rem forfeitures, it could have addressed these concerns, while still avoiding the dangers of judicial activism.
Categories
No categories specified
(categorize this paper)
PhilPapers/Archive ID
BAUIOA-2
Upload history
Archival date: 2019-05-24
View other versions
Added to PP index
2019-05-24

Total views
45 ( #49,459 of 56,101 )

Recent downloads (6 months)
12 ( #45,234 of 56,101 )

How can I increase my downloads?

Downloads since first upload
This graph includes both downloads from PhilArchive and clicks on external links on PhilPapers.