U.S. Supreme Court
BENNIS v. MICHIGAN, 517 U.S. 1163 (1996)
TINA B. BENNIS, PETITIONER v. MICHIGAN
CERTIORARI TO THE SUPREME COURT OF MICHIGAN
Argued November 29, 1995
Decided March 4, 1996
Petitioner was a joint owner, with her husband, of an automobile in which
her husband engaged in sexual activity with a prostitute. In declaring the
automobile forfeit as a public nuisance under Michigan's statutory abatement
scheme, the trial court permitted no offset for petitioner's interest,
notwithstanding her lack of knowledge of her husband's activity. The Michigan
Court of Appeals reversed, but was in turn reversed by the State Supreme Court,
which concluded, inter alia, that Michigan's failure to provide an
innocent-owner defense was without federal constitutional consequence under
this Court's decisions.
The forfeiture order did not offend the Due Process Clause of the Fourteenth
Amendment or the Takings Clause of the Fifth Amendment. Pp. 4-12.
(a) Michigan's abatement scheme has not deprived petitioner of
her interest in the forfeited car without due process. Her claim that she was
entitled to contest the abatement by showing that she did not know that her
husband would use the car to violate state law is defeated by a long and
unbroken line of cases in which this Court has held 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. See,
e.g., Van Oster v. Kansas, 272 U.S. 465, 467-468, and Calero-Toledo v.Pearson
Yacht Leasing Co.,
U.S. 663, 668, 683; Foucha v. Louisiana,
U.S. 71, 80, and Austin v. United States, 509 U.S. ___, ___, distinguished.
These cases are too firmly fixed in the country's punitive and remedial
jurisprudence to be now displaced. Cf. J. W. Goldsmith, Jr.-Grant Co. v. United
States, 254 U.S. 505, 511. Pp. 4-11.
(b) Michigan's abatement scheme has not taken petitioner's property for Page
II public use without compensation. Because the forfeiture proceeding did not
violate the Fourteenth Amendment, her property in the automobile was
transferred by virtue of that proceeding to the State. The government may not
be required to compensate an owner for property which it has already lawfully
acquired under the exercise of governmental authority other than the power of
eminent domain. See, e.g., United States v. Fuller,
U.S. 488, 492. P. 11.
447 Mich. 719, 527 N. W. 2d 483, affirmed.
REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR,
SCALIA, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., and GINSBURG, J., filed
concurring opinions. STEVENS, J., filed a dissenting opinion, in which SOUTER
and BREYER, JJ., joined. KENNEDY, J., filed a dissenting opinion.
[ Bennis v. Michigan, 517 U.S.
1163 (1996) , 1]
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.  The State then sued both Bennis and his wife,
petitioner Tina B. Bennis, to have the car declared a public nuisance and
abated as such under 600.3801  and
600.3825  of
[ Bennis v. Michigan, 517 U.S.
1163 (1996) , 2] Michigan's Compiled Laws.
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 took into account the couple's ownership of "another
automobile," so they would not be left "without transportation."
Id., at 25. He also mentioned his authority to order the payment of one-half of
the sale proceeds, after the deduction of costs, to "the innocent co-title
holder." Id., at 21. He [
Bennis v. Michigan, 517 U.S. 1163 (1996) , 3] declined to order such
a division of sale proceeds in this case because of the age and value of the
car (an 11-year-old Pontiac sedan recently purchased by John and Tina Bennis
for $600); he commented in this regard: "[T]here's practically nothing
left minus costs in a situation such as this." Id., at 25.
The Michigan Court of Appeals reversed, holding that regardless of the
language of Michigan Compiled Law 600.3815(2),  Michigan Supreme Court precedent interpreting this
section prevented the State from abating petitioner's interest absent proof
that she knew to what end the car would be used. Alternatively, the
intermediate appellate court ruled that the conduct in question did not qualify
as a public nuisance because only one occurrence was shown and there was no
evidence of payment for the sexual act. 200 Mich. App. 670, 504 N. W. 2d 731
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 600.3815(2), the
court then announced that, in order to abate an owner's interest in a vehicle,
Michigan does not need to prove that the owner knew or agreed that her vehicle
would be used in a manner proscribed by 600.3801 when she entrusted it to
another user. Id., at 737, 527 N. W. 2d, at 492. The court next addressed
petitioner's federal constitutional challenges to the State's abatement scheme:
The court assumed that petitioner did not know of or consent to the misuse of
the Bennis car, and concluded in light of our decisions in Van Oster v. Kansas,
272 U.S. 465 [ Bennis v. Michigan,
517 U.S. 1163 (1996) , 4](1926), and Calero-Toledo v. Pearson Yacht
U.S. 663 (1974), that Michigan's failure to provide an innocent-owner
defense was "without constitutional consequence." 447 Mich., at
740-741, 527 N. W. 2d, at 493-494. The Michigan Supreme Court specifically
noted that, in its view, an owner's interest may not be abated when "a
vehicle is used without the owner's consent." Id., at 742, n. 36, 527 N.
W. 2d, at 495, n. 36. Furthermore, the court confirmed the trial court's
description of the nuisance abatement proceeding as an "equitable
action," and considered it "critical" that the trial judge so
comprehended the statute. Id., at 742, 527 N. W. 2d, at 495.
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 Fourteenth Amendment, or has taken her interest
for public use without compensation, in violation of the Fifth Amendment as
incorporated by the Fourteenth Amendment. 515 U.S. ___ (1995). We affirm.
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. Compare United States v. James Daniel Good Real Property, 510 U.S. ___
(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 Palmyra, which had been commissioned as
a privateer by the King of Spain and had attacked a United States vessel, was
captured by a United States [
Bennis v. Michigan, 517 U.S. 1163 (1996) , 5] war ship and brought
into Charleston, South Carolina, for adjudication. Id., at 8. On the
Government's appeal from the Circuit Court's acquittal of the vessel, it was
contended by the owner that the vessel could not be forfeited until he was
convicted for the privateering. The Court rejected this contention, explaining:
"The thing is here primarily considered as the offender, or rather the
offence is attached primarily to the thing." Id., at 14. In another
admiralty forfeiture decision 17 years later, Justice Story wrote for the Court
that in in rem admiralty proceedings "the acts of the master and crew ...
bind the interest of the owner of the ship, whether he be innocent or guilty;
and he impliedly submits to whatever the law denounces as a forfeiture attached
to the ship by reason of their unlawful or wanton wrongs." Harmony v.
United States, 2 How. 210, 234 (1844) (emphasis added).
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
[ Bennis v. Michigan, 517 U.S.
1163 (1996) , 6] of intoxicating liquor. Id., at 465-466. The State
brought a forfeiture action pursuant to a Kansas statute, and Van Oster
defended on the ground that the transportation of the liquor in the car was
without her knowledge or authority. This Court rejected Van Oster's claim:
"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
"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.  [ Bennis v. Michigan, 517 U.S. 1163
(1996) , 7]
In Calero-Toledo v. Pearson Yacht Leasing Co.,
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
Fourteenth Amendment does not protect her interest against forfeiture by the
government. [ Bennis v. Michigan,
___ U.S. ___ (1996) , 8]
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 all that reasonably could be expected to prevent the
proscribed use of his property."
U.S., at 689. But she concedes that this comment was obiter dictum, and
"[i]t is to the holdings of our cases, rather than their dicta, that we
must attend." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. ___,
___ (1994) (slip op., at 4). And the holding of Calero-Toledo on this point was
that the interest of a yacht rental company in one of its leased yachts could
be forfeited because of its use for transportation of controlled substances,
even though the company was "`in no way ... involved in the criminal
enterprise carried on by [the] lessee' and `had no knowledge that its property
was being used in connection with or in violation of [Puerto Rican Law].'"
U.S., at 668. Petitioner has made no showing beyond that here.
The 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 2, 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," id., at 4. 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
U.S., at 693 (opinion dissenting in part), might have been decided
differently. [ Bennis v. Michigan,
___ U.S. ___ (1996) , 9]
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 5. 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 application shall
be made it will be time enough to pronounce upon it." 254 U.S., at 512.
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.
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. ___ (1993), that the Excessive
Fines Clause  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,
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 [
Bennis v. Michigan, ___ U.S. ___ (1996) , 10] 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 Eighth Amendment's prohibition against excessive fines. 509
U.S., at ___ (slip op., at 15). There was no occasion in that case to deal with
the validity of the "innocent-owner defense," other than to point out
that if a forfeiture statute allows such a defense, the defense is additional
evidence that the statute itself is "punitive" in motive. Id., at ___
(slip op., at 14-15). In this case, however, Michigan's Supreme Court
emphasized with respect to the forfeiture proceeding at issue: "It is not
contested that this is an equitable action," in which the trial judge has
discretion to consider "alternatives [to] abating the entire interest in
the vehicle." 447 Mich., at 742, 527 N. W. 2d, at 495.
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. Mich. Comp. Laws. Ann.
257.401 (1990). "The law thus builds a secondary defense against a
forbidden use and precludes evasions by dispensing with the necessity of
judicial inquiry as to collusion between the wrongdoer and the alleged innocent
owner." Van Oster, 272 U.S., at 467-468.
[ Bennis v. Michigan, 517 U.S. 1163 (1996) , 11]
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 Fifth
Amendment, made applicable to the States by the Fourteenth Amendment. But if
the forfeiture proceeding here in question did not violate the Fourteenth
Amendment, the property in the automobile was transferred by virtue of that
proceeding from petitioner to the State. The government may not be required to
compensate an owner for property which it has already lawfully acquired under
the exercise of governmental authority other than the power of eminent domain.
United States v. Fuller,
U.S. 488, 492 (1973); see United States v. Rands,
U.S. 121, 125 (1967).
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 4, 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
[ Bennis v. Michigan, 517 U.S. 1163 (1996) , 12]
followed our longstanding practice, and the judgment of the Supreme Court of
Michigan is therefore
[ 1] Mich. Comp. Laws Ann. 750.338b (1991).
[ 2] Section 600.3801 states in pertinent part:
"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. [ Bennis v. Michigan, 517 U.S. 1163 (1996) ,
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." Mich.
Comp. Laws Ann. 600.3801 (Supp. 1995).
[ 3] Section 600.3825 states in pertinent part:
"(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, fixture, 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... ."
Mich. Comp. Laws Ann. 600.3825 (1987).
[ 4] "Proof of knowledge of the existence
of the nuisance on the part of the defendants or any of them, is not
required." Mich. Comp. Laws Ann. 600.3815(2) (1987).
[ 5] In Austin v. United States, 509 U.S. ___,
___ (1993) (slip op., at [ Bennis
v. Michigan, 517 U.S. 1163 (1996) , 7] 14), the Court observed that
J. W. Goldsmith Jr.-Grant Co. v. United States, 254 U.S. 505 (1921)
"expressly reserved the question whether the [guilty-property] fiction
could be employed to forfeit the property of a truly innocent owner." This
observation is quite mistaken. The Goldsmith-Grant Court expressly reserved
opinion "as to whether the section can be extended to property stolen from
the owner or otherwise taken from him without his privity or consent."
Id., at 512 (emphases added). In other words, the Goldsmith-Grant Court drew
the very same distinction made by the Michigan Supreme Court in this case:
"the distinction between the situation in which a vehicle is used without
the owner's consent," and one in which, "although the owner consented
to [another person's] use, [the vehicle] is used in a manner to which the owner
did not consent." 447 Mich., at 742, n. 36, 527 N. W. 2d, at 495, n. 36.
Because John Bennis co-owned the car at issue, petitioner cannot claim she was
in the former situation.
The dissent, post, at 8-9, and n. 9, 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." Peisch, supra, at 364.
[ 6] U.S. Const., Amdt. 8.
[ Bennis v. Michigan, 517 U.S.
1163 (1996) , 1]
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 property, or who may at least have negligently entrusted their
property to someone likely to use it for misfeasance. But, the State continues,
it does not want to have to prove (or to refute proof regarding) collusion,
acquiescence, or negligence.
As the Court notes, evasion of the normal requirement of proof before
punishment might well seem "unfair." Ante, at 11. 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
[ Bennis v. Michigan, 517 U.S.
1163 (1996) , 2] 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.
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 Fifth and Fourteenth
Amendments. Cf. Burnham v. Superior Court of Cal., County of Marin,
U.S. 604, 619 (1990) (plurality opinion) (a process of law that can show
the sanction of settled usage both in England and in this country must be taken
to be due process of law) (citing Hurtado v. California, 110 U.S. 516, 528-529
(1884)). Indeed, 70 years ago this Court held in Van Oster v. Kansas, 272 U.S.
465 (1926), that an automobile used in crime could be forfeited notwithstanding
the absence of any proof that the criminal use occurred with "knowledge or
authority" of the owner. Id., at 466. A law of forfeiture without an
exception for innocent owners, the Court said, "builds a secondary
defense" for the State "against a forbidden use and precludes
evasions by dispensing with the necessity of judicial inquiry as to collusion
between the wrongdoer and the alleged innocent owner." Id., at 467-468.
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 [ BENNIS v.
MICHIGAN, ___ U.S. ___ (1996) , 3] law - are not clear to me. See
United States v. James Daniel Good Real Property, 510 U.S. ___, ___ (1993)
(slip op., at 2-5) (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
If anything, the forfeiture in Van Oster was harder to justify than is the
forfeiture here, albeit in a different respect. In this case, the trial judge
apparently found that the sales price of the car would not exceed by much the
"costs" to be deducted from the sale; and he took that fact into
account in determining how to dispose of the proceeds of the sale of the car.
The state statute has labeled the car a "nuisance" and authorized a
procedure for preventing the risk of continued criminal use of it by Mr. Bennis
(forfeiture and sale); under a different statutory regime, the State might have
authorized the destruction of the car instead, and the State would have had a
plausible argument that the order for destruction was "remedial" and
thus noncompensable. That it chose to order the car sold, with virtually
nothing left over for the State after "costs," may not change the
"remedial" character of the State's action substantially. And if the
forfeiture of the car here (and [
Bennis v. Michigan, 517 U.S. 1163 (1996) , 4] the State's refusal to
remit any share of the proceeds from its sale to Mrs. Bennis) can appropriately
be characterized as "remedial" action, then the more severe problems
involved in punishing someone not found to have engaged in wrongdoing of any
kind do not arise. [*]
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 assigns to the States and to the political
branches of the Federal Government the primary responsibility for avoiding that
[ [*]] 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 Mich. Comp. Laws 600.3825(3)
(1979) (costs of keeping the car to be deducted). Even if the "costs"
that the trial judge believed would consume most of the sales proceeds included
not simply the expected costs of sale, but also the State's costs of keeping
the car and law enforcement costs related to this particular proceeding, the
State would still have a plausible argument that using the sales proceeds to
pay such costs was "remedial" action, rather than punishment.
[ Bennis v. Michigan, 517 U.S.
1163 (1996) , 1]
JUSTICE GINSBURG, concurring.
I join the opinion of the Court and highlight features of the case key to my
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 7, 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 id., at 11 (citing Tr. 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 4 (majority opinion) (citing Michigan ex rel. Wayne
Cty. Prosecutor v. Bennis, 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 [ Bennis v.
Michigan, 517 U.S. 1163 (1996) , 2] 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
Nor is it fair to charge the trial court with "blatant unfairness"
in the case at hand. See post, at 14, n. 14, and 16 (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
"another automobile," App. 25; and the age and value of the forfeited
car (an 11-year-old Pontiac purchased by John and Tina Bennis for $600) left
"practically nothing" to divide after subtraction of costs. See ante,
at 3 (majority opinion) (citing App. 25).
Michigan, in short, has not embarked on an experiment to punish innocent
third parties. See post, at 1 (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.
[ Bennis v. Michigan, 517 U.S. 1163 (1996) , 1]
JUSTICE STEVENS, with whom JUSTICE SOUTER and JUSTICE BREYER join,
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 Court's apparent assumption that their
complete innocence imposes no [
Bennis v. Michigan, 517 U.S. 1163 (1996) , 2] constitutional
impediment to the seizure of their property simply because it provided the
locus for a criminal transaction.
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. ___ (1993), compels reversal.
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,
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.
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, [ Bennis v.
Michigan, 517 U.S. 1163 (1996) , 3] N. J., Land,
U.S. 111, 121, n. 16 (1993). Because those federal statutes include
protections for innocent owners, see 21 U.S.C. 881(a) (6), cases arising out of
the seizure of proceeds do not address the question whether the Constitution
would provide a defense to an innocent owner in certain circumstances if the
statute had not done so. The prevalence of protection for innocent owners in
such legislation does, however, lend support to the conclusion that elementary
notions of fairness require some attention to the impact of a seizure on the
rights of innocent parties. 
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,
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,  in the slave trade,  or in the smuggling of cargoes of goods
[ BENNIS v. MICHIGAN, ___ U.S. ___
(1996) , 4] into the United States.  These seizures by the sovereign were approved despite
the faultlessness of the ship's owner. Because the entire mission of the ship
was unlawful, admiralty law treated the vessel itself as if it were the
offender.  Moreover, under
"the maritime law of the Middle Ages the ship was not only the source, but
the limit, of liability." 
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 [ BENNIS v.
MICHIGAN, ___ U.S. ___ (1996) , 5] 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 transport bootleg liquor, or to
smuggle goods into the United States in violation of our customs laws. 
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.
[ Bennis v. Michigan, 517 U.S.
1163 (1996) , 6]
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 Goldsmith-Grant Co., 254 U.S., 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 had
concealed compartments for carrying liquor). In Calero-Toledo v. Pearson Yacht
U.S. 663 (1974), similarly, a yacht was seized because it had been used
"to transport, or to facilitate the transportation of" a controlled
substance. See id., at 665-666. 
Here, on the other hand, the forfeited property bore no necessary connection to
the offense committed by petitioner's husband. It is true that the act occurred
in the car, but it might just as well have occurred in a multitude of other
locations. The mobile character of the car played a part only in the
negotiation, but not in the consummation of the offense.
In recent years, a majority of the members of this Court has agreed that the
concept of an instrumentality [
Bennis v. Michigan, 517 U.S. 1163 (1996) , 7] 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 ___ (slip op., at 18).
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 ___ (slip op., at 6) (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. ___, ___ (1993) (slip op.,
at 2-3) (opinion concurring in part and dissenting in part). The car in this
case, however, was used as little more than an enclosure for a one-time event,
effectively no different from a piece of real property.  By the rule laid down in our
[ Bennis v. Michigan, 517 U.S. 1163
(1996) , 8] recent cases, that nexus is insufficient to support the
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 10 (quoting Austin, 509 U.S., at ___ (slip op. at 15)).  At an earlier stage of this litigation, the State
unequivocally argued that confiscation of automobiles in the circumstances of
this case "is swift and certain `punishment' of the voluntary vice
consumer." Brief for Plaintiff-Appellant in No. 97339 (Mich.), p. 22.
Therefore, the idea that this forfeiture did not punish petitioner's husband -
and, a fortiori, petitioner herself - is simply not sustainable.
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,
U.S. 354, 364 (1984) (confiscation of unregistered shotguns); see also C.
J. [ Bennis v. Michigan, 517 U.S.
1163 U.S. ___ (1996) , 9] Hendry Co. v. Moore,
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.  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,
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
4-8. Only three Terms ago, however, the Court surveyed the same historical
antecedents and held that all of its forfeiture [ Bennis v. Michigan, 517 U.S. 1163 (1996) ,
10] 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 ___ (slip op., at ___) (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 ___, (slip op., at 13), 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.,
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 ___ (slip op., at 12). The majority dismisses this statement as "obiter
dictum," ante, at 8, but we have assumed that such a principle existed, or
expressly reserved the question, in a line of cases dating back nearly 200
years. In one of its earliest decisions, the Court, speaking through Chief
Justice Marshall, recognized as "unquestionably a correct legal
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." Peisch v. Ware, 4 [ Bennis v. Michigan, 517 U.S. 1163 (1996) , 11] Cranch
347, 363 (1808).  In other
contexts, we have regarded as axiomatic that persons cannot be punished when
they have done no wrong. See Southwestern Telegraph & Telephone Co. v.
Danaher, 238 U.S. 482, 490-491 (1915) (invalidating penalty under Due Process
Clause for conduct that involved "no intentional wrongdoing; no departure
from any prescribed or known standard of action and no reckless conduct");
TXO Production Corp. v. Alliance Resources Corp.,
U.S. 443, 454, and n. 17 (1993) (following Danaher); Bordenkircher v.
U.S. 357, 363 (1978); see also Bell v.
[ Bennis v. Michigan, 517 U.S. 1163 (1996) , 12]
U.S. 520, 580 (1979) (STEVENS, J., dissenting). I would hold now what we
have always assumed: that the principle is required by due process.
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." See ante, at 10. But that is no
distinction at all; deterrence is itself one of the aims of punishment. United
States v. Halper,
U.S. 435, 448 (1989).  Even on
a deterrence rationale, more-over,
[ Bennis v. Michigan, 517 U.S. 1163 (1996) , 13] 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. ___, ___, n.5 (1995)
(slip op., at 6-7, n.5) (GINSBURG, J., dissenting), so the risk of forfeiture
encourages owners to exercise care in entrusting their property to others. See
U.S., at 687; ante, at 10. 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,
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 of forfeiture will deter an individual
from buying a car with her husband - or from marrying him in
[ Bennis v. Michigan, 517 U.S.
1163 (1996) , 14] the first place - if she neither knows nor has
reason to know that he plans to use it wrongfully.
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 10 (citing Van Oster v. Kansas, 272 U.S. 465, 467-468 (1926)).
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. 
[ Bennis v. Michigan, 517 U.S.
1163 (1996) , 15]
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 Eighth
Amendment's Excessive Fines Clause. For both of the reasons I have already
discussed, the forfeiture of petitioner's half-interest in her car is surely a
form of "excessive" punishment. For an individual who merely let her
husband use her car to commute to work, even a modest penalty is out of all
proportion to her blameworthiness; and when the assessment is confiscation of
the entire car, simply because an illicit act took place once in the driver's
seat, the punishment is plainly excessive. This penalty violates the Eighth
Amendment for yet another reason. Under the Court's reasoning, the value of the
car is irrelevant. A brand-new luxury sedan or a ten-year-old used car would be
equally forfeitable. We have held that "dramatic variations" in the
value of conveyances subject to forfeiture actions undercut any argument that
the latter are reasonably tied to remedial ends. See Austin, 509 U.S., at ___
(slip op., at 18-20); United States v. Ward,
U.S. 242, 254 (1980).
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.
 Without some form of an exception for
innocent owners, the potential breadth of forfeiture actions for illegal
proceeds would be breathtaking indeed. It has been estimated that nearly every
United States bill in circulation - some $230 billion worth - carries trace
amounts of cocaine, so great is the drug trade's appetite for cash. See Range
& Witkin, The Drug-Money Hunt, U.S. News & World Report, Aug. 21, 1989,
p. 22; Heilbroner, The Law Goes on a Treasure Hunt, N.Y. Times, Dec. 11, 1994,
p. 70, col. 1. Needless to say, a rule of strict liability would have
catastrophic effects for the nation's economy.
 See, e.g., The Palmyra, 12 Wheat. 1
(1827); Harmony v. United States, 2 How. 210 (1844). The latter case has
occasionally been cited by other names, including "Malek Adhel," see
O. Holmes, The Common Law 27, n. 82 (M. Howe ed. 1963), and "United States
v. Brig Malek Adhel," see Austin, 509 U.S., at ___ (slip op., at 12).
 See, e.g., Tryphenia v. Harrison, 24 F.
Cas. 252 (No. 14,209) [BENNIS v.
MICHIGAN, ___ U.S. ___ (1996) , 4] (CC Pa. 1806) (Washington, J.).
 See C. J. Hendry Co. v. Moore,
U.S. 133, 145-148 (1943) (collecting cases); Harmony, 2 How., at 233-234.
 "The vessel which commits the
aggression is treated as the offender, as the guilty instrument or thing to
which the forfeiture attaches, without any reference whatsoever to the
character or conduct of the owner. The vessel or boat (says the act of
Congress) from which such piratical aggression, &c., shall have been first
attempted or made shall be condemned. Nor is there any thing new in a provision
of this sort. It is not an uncommon course in the admiralty, acting under the
law of nations, to treat the vessel in which or by which, or by the master or
crew thereof, a wrong or offence has been done as the offender, without any
regard whatsoever to the personal misconduct or responsibility of the owner
thereof. And this is done from the necessity of the case, as the only adequate
means of suppressing the offence or wrong, or insuring an indemnity to the
injured party. The doctrine also is familiarly applied to cases of smuggling
and other misconduct under our revenue laws; and has been applied to other
kindred cases, such as cases arising on embargo and non-intercourse acts. In
short, the acts of the master and crew, in cases of this sort, bind the
interest of the owner to the ship, whether he be innocent or guilty; and he
impliedly submits to whatever the law denounces as a forfeiture attached to the
ship by reason of their unlawful or wanton wrongs." Ibid.
 Holmes, The Common Law, at 27.
 See, e.g., Van Oster v. Kansas, 272 U.S. 465
(1926) (transportation); J. W. Goldsmith, Jr.-Grant Co. v. United States, 254
U.S. 505 (1921) (same); General Motors Acceptance Corp. v. United States, 286
U.S. 49 (1932) (importation); United States v. Commercial Credit Co., 286 U.S.
63 (1932) (same).
 The majority questions whether the yacht was
actually used to transport drugs, quoting Justice Douglas' dissenting statement
that "`so far as we know'" only one marijuana cigarette was found on
board. See ante, at 8. Justice Douglas cited no source for that assertion,
however, and it does not appear in the majority or concurring opinions.
According to the stipulated facts of the case, the Commonwealth of Puerto Rico
accused the lessee of using the yacht to "convey, transport, carry and
transfer" a narcotic drug. See App. in Calero-Toledo v. Pearson Yacht
Leasing Co., O.T. 1973, No. 73-157, p. 25.
 In fact, the rather tenuous theory advanced
by the Michigan Supreme Court to uphold this forfeiture was that the
neighborhood where the offense occurred exhibited an ongoing "nuisance
condition" because it had a reputation for illicit activity, and the car
contributed to that "condition." 447 Mich. 719, 734, 527 N. W. 2d
483, 491 (1994). On that view, the car did not constitute the nuisance of
itself; only when considered as a part of the particular neighborhood did it
assume that character. See id., at 745, 527 N. W. 2d, at 496 (Cavanagh, C.J.,
dissenting). One bizarre consequence of this theory, expressly endorsed by the
Michigan high court, is that the very same offense, committed in the very same
car, would not render the car forfeitable if it were parked in a different part
of Detroit, such as the affluent Palmer Woods area. See id., at 734, n. 22, 527
N. W. 2d, at 491, n. 22. This construction confirms the irrelevance of the
car's mobility to the forfeiture; any other stationary part of the neighborhood
where such an offense could take place a shed, for example, or an apartment -
could be forfeited on the same rationale. Indeed, if petitioner's husband had
taken [Bennis v. Michigan, 517
U.S. 1163 (1996) , 8] advantage of the car's power of movement, by
picking up the prostitute and continuing to drive, presumably the car would not
have been forfeitable at all.
 We have held, furthermore, that "a
civil sanction that cannot be said solely to serve a remedial purpose, but
rather can only be explained as also serving either retributive or deterrent
purposes, is punishment, as we have come to understand the term." United
States v. Halper,
U.S. 435, 448 (1989) (emphasis added).
 The forfeited car was purchased in
September of the same year, and thus could not have been involved in any such
episodes during the preceding summer. See App. 8; 447 Mich., at 728, 527 N. W.
2d, at 488 (1994).
 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 ___ (slip op., at 12-13); Calero-Toledo v. Pearson
Yacht Leasing Co.,
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 7, n. 5. Chief Justice Marshall's opinion discussed and
justified each principle independently, and either could apply in the absence
of the other.
 For that reason, the majority's attempt
to analogize this forfeiture to the system of tort liability for automobile
accidents is unpersuasive. See ante, at 10. Tort law is tied to the goal of
compensation (punitive damages being the notable exception), while forfeitures
[Bennis v. Michigan, ___ U.S. ___
(1996) , 13] are concededly punitive. The fundamental difference
between these two regimes has long been established. "The law never
punishes any man criminally but for his own act, yet it frequently punishes him
in his pocket, for the act of another. Thus, if a wife commits an offence, the
husband is not liable to the penalties; but if she obtains the property of
another by any means not felonious, he must make the payment and amends."
Phile v. Ship Anna, 1 Dall. 197, 207 (C. P. Phila. Cty. 1787). The converse, of
course, is true as well.
 JUSTICE GINSBURG argues that Michigan
should not be rebuked for its efforts to deter prostitution, see ante, at 1-2,
but none of her arguments refutes the fact that the State has accomplished its
ends by sacrificing the rights of an innocent person. First, the concession
that the car itself may be confiscated provides no justification for the
forfeiture of the co-owner's separate interest. Second, the assertion that the
Michigan Supreme Court "stands ready to police exorbitant applications of
the statute," ibid., has a hollow ring because it failed to do so in this
case. That court did not even mention the relevance of innocence to the trial
court's exercise of its "equitable discretion." Rather, it stated
flatly that "Mrs. Bennis' claim is without constitutional
consequence." 447 Mich., at 741, 527 N. W. 2d, at 494. Third, the blatant
unfairness of using petitioner's property to compensate for her husband's
offense is not diminished [Bennis
v. Michigan, 517 U.S. 1163 (1996) , 15] by its modest value. It is
difficult, moreover, to credit the trial court's statement that it would have
awarded the proceeds of the sale to petitioner if they had been larger, for it
expressly ordered that any remaining balance go to the State's coffers. See
App. 28. Finally, the State's decision to deter "Johns from using cars
they own (or co-own) to contribute to neighborhood blight," ante, at 2
(emphasis added), surely does not justify the forfeiture of that share of the
car owned by an innocent spouse. [Bennis v. Michigan, 517 U.S. 1163 (1996) , 1]
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,
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.,
U.S. 663, 680-681 (1974) (discussing deodands). The trade-off, 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. ___, ___ (1993) (slip
op., at 3-4) [Bennis v. Michigan,
___ U.S. ___ (1996) , 2] (SCALIA, J., concurring in part and
concurring in judgment); id., at ___ (slip op., at 1-2) (KENNEDY, J.,
concurring in part and concurring in judgment). As JUSTICE STEVENS observes,
however, ante, at 10, even the well-recognized tradition of forfeiture in
admiralty has not been sufficient for an unequivocal confirmation from this
Court that a vessel in all instances is seizable when it is used for criminal
activity without the knowledge or consent of the owner, see Calero-Toledo v.
Pearson Yacht Leasing Co., supra, at 688-690. Cf. The William Bagaley, 5 Wall.
377, 410-411 (1867) (discussing English cases holding knowledge or culpability
relevant to the forfeiture of a cargo owner's interest).
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 6,
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.