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How the Supreme Court Enabled Policing For Profit--and What to Do About It

02/16/2015 10:13 am ET | Updated Apr 15, 2015

At this point, the only people defending the notorious and noxious practice of civil forfeiture are those that stand to gain from seizing Americans' property. Policymakers across the political spectrum have expressed outrage at the way in which civil forfeiture, which enables the government to take property from people who have never been charged with any crime, has been abused by law enforcement, and legislation has recently been introduced to better protect property owners.

While this is a step in the right direction, a legislative solution to this problem should not be necessary in the first place. Despite recognizing that "individual freedom finds tangible expression in property rights" and insisting that the property rights secured by the Constitution must not be "relegated to the status of a poor relation," the Supreme Court has endorsed the principle that innocence is no defense to the seizure of one's property. It is high time for the Court to revisit this pernicious precedent.

It's hard to imagine a more sympathetic plaintiff in a forfeiture case than Tina Bennis. In September 1988, Tina and her husband John bought an eleven-year-old 1977 Pontiac, splitting the $600 cost. John, without Tina's knowledge, used the Pontiac to solicit prostitutes and was arrested for gross indecency. Along with the criminal charges, the county prosecutor sought to forfeit the car under a Michigan statute that allowed for the confiscation of property used for the purpose of "lewdness, assignation or prostitution." At trial, Tina argued that because she was an innocent co-owner, the forfeiture of her interest in the car violated both the Due Process Clause of the Fourteenth Amendment and the Takings Clause of the Fifth Amendment.

In Bennis v. Michigan (1996), the Court upheld the forfeiture, ruling that property owners are not constitutionally guaranteed an "innocent owner" defense. Justice Rehnquist, writing for the Court, relied upon long-standing precedent, finding that "the cases authorizing actions of this kind are too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced." Evading the reality that Tina had done nothing meriting punishment, Justice Rehnquist explained that "forfeiture also serves a deterrent purpose distinct from any punitive purpose." But Tina could not have been deterred from doing anything--she was neither complicit in her husband's crime nor negligent in allowing him to use a vehicle that he co-owned. As Justice Stevens pointed out in dissent, the goal of deterrence is "not fairly served in the case of a person who has taken all reasonable steps to prevent an illegal act."

The Court's decision not only deprived Tina Bennis of her means of transportation but sharply expanded the government's already vast power to confiscate property. By contrast, a holding that the innocent-owner defense was constitutionally required would have bound both the federal government and the states. The Court's blind invocation of past precedent and its credulous embrace of a completely implausible deterrence rationale left innocent people everywhere more vulnerable to policing for profit. The Court's decision also underscored just how little protection property rights receive when principled judicial engagement is replaced by knee-jerk deference to the political branches or misguided "judicial restraint."

While Congress's recent interest in addressing these and other forfeiture abuses is encouraging, we must also remember that rights are far less secure when protected by statute rather than the Constitution. So long as Bennis remains binding precedent, the scope of innocent owners' property rights are a function of pure political will. But the principle that innocent people cannot be treated as if they are guilty is a vital principle of just government, and we should not have to depend upon the ballot box to see it vindicated.