For Immediate Release March 20, 1996

Parlor Games at the Supreme Court

By Tim Kern

Remember the parlor game, where one person tells another a story, and he tells another, and so on, until the story becomes totally unrecognizable? The Supreme Court, in deciding Bennis v. Michigan on March 4, did exactly that, by following an increasingly convoluted series of precedents instead of referring to the original "story" in the Constitution and its Amendments.

The case goes like this: Tina Bennis and her husband, John, bought a car for $600. John went downtown in it, picked up a prostitute, parked in a bad section of Detroit, and got caught, in the car, with the prostitute, doing bad things. The police confiscated the Bennis car under a 1926 "public nuisance" law. Tina maintained that she should not be punished by losing (her share of) the car, since she was innocent, and clearly did not authorize John's activity. The Supreme Court ruled whether her "due process" rights (14th Amendment) and "takings" protections (5th Amendment) were violated. The Court said they were not, and, furthermore, her innocence was not relevant.

The Court said that Tina had her day in court, so her "due process" wasn't violated.

The Court cited several cases, dating back to 1827, to justify the State's taking of Tina's share of the Bennis car. In The Palmyra, the American Navy seized a ship as an "instrumentality" of piracy. This and other admiralty cases formed the foundation for allowing Michigan to seize car.

The original trial judge mentioned that he had discretion to compensate Tina, but "[There's practically nothing left minus costs in a situation such as this." Question: Why should Tina have to pay the State's legal costs? This judge also "...took into account the couple's ownership of another automobile, so they would not be left without transportation." Question: So, justice would have been different had Tina and John been of different financial status?

The incident with the prostitute was a single occurrence, and took place in a bad part of town. In his dissent, Justice Stevens notes that the idea of a "nuisance" infers a pattern of infractions, and that the neighborhood was cited in the determination of the "nuisance,"

so the car was a victim of geography. Had the car been parked in a better neighborhood (or if the car had continued moving), "nuisance" would not have been proved. Another class distinction for "justice"?

Justice Thomas, voting with the majority, said, "The limits on what property can be forfeited as a result of what wrongdoing...are not clear to me." (emphasis in original). In his dissent, John Paul Stevens says that using this line of reasoning "...would justify the confiscation of an ocean liner just because one of its passengers sinned while on board." The Court's opinion didn't deny this possibility, saying, "[when such application shall be made it will be time enough to pronounce upon it." In answer, Judge Stevens said, "That time has arrived when the State forfeits a woman's car because her husband has secretly committed a misdemeanor in it."

Are we at a point in America when any action government takes is OK? When innocence is no defense, when the financial status of the accused (or even of the non-accused) is a determinant for justice, when the neighborhood in which a crime takes place determines whether someone can have her car taken? The answer must sadly be yes.

Justice Stevens's dissent concludes, "...I am convinced that the blatant unfairness of this seizure places it on the unconstitutional side [of what can be seized, and why]." Clarence Thomas explained away this decision's implications, saying "...the Federal Constitution does not prohibit everything that is intensely undesirable."

The Court cites a long list of cases where the forfeiture powers were expanded, without the courage to draw a line somewhere short of the present outrage. Other onerous precedents were overturned in the past. Courage was required when the Court overturned Plessey (an 1898 decision upholding racial segregation). The Court lacked the necessary courage to take on wrongly-decided forfeiture cases from the past.

At least now we know. Nothing we own is safe from forfeiture. As the Court quoted from an earlier case "the innocence of the owner of property subject to forfeiture has almost uniformly been rejected as a defense." The Government says, "Guilty or not, here we come!"

Tim Kern is a Senior Fellow with the Independence Institute, a free-market think-tank in Golden, Colorado.

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