Bennis v. Michigan, 516 U.S. 442, 14 (1996)

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Cite as: 516 U. S. 442 (1996)

Thomas, J., concurring

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 law—are not clear to me. See United States v. James Daniel Good Real Property, 510 U. S. 43, 81-83 (1993) (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 crime.

If anything, the forfeiture in Van Oster was harder to justify than is the forfeiture here, albeit in a different respect.

455

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