626
Opinion of Scalia, J.
at 616-617, and n. 10; Goldsmith-Grant, supra, at 512 (reserving question); Calero-Toledo, supra, at 689-690 (same). A prominent 19th-century treatise explains statutory in rem forfeitures solely by reference to the fiction that the property is guilty, strictly separating them from forfeitures that require a personal offense of the owner. See 1 J. Bishop, Commentaries on Criminal Law §§ 816, 824, 825, 833 (7th ed. 1882). If the Court is correct that culpability of the owner is essential, then there is no difference (except perhaps the burden of proof) between the traditional in rem forfeiture and the traditional in personam forfeiture. Well-established common-law distinctions should not be swept away by reliance on bits of dicta. Moreover, if some degree of personal culpability on the part of the property owner always exists for in rem forfeitures, see ante, at 614-618, then it is hard to understand why this Court has kept reserving the (therefore academic) question whether personal culpability is constitutionally required, see ante, at 617, as the Court does again today, see ante, at 617, n. 10.
I would have reserved the question without engaging in the misleading discussion of culpability. Even if punishment of personal culpability is necessary for a forfeiture to be a fine; and even if in rem forfeitures in general do not punish personal culpability; the in rem forfeiture in this case is a fine. As the Court discusses in Part IV, this statute, in contrast to the traditional in rem forfeiture, requires that the owner not be innocent—that he have some degree of culpability for the "guilty" property. See also United States v. Parcel of Rumson, N. J., Land, 507 U. S. 111, 121-123 (1993) (plurality opinion) (contrasting drug forfeiture statute with traditional statutory in rem forfeitures). Here, the property must "offend" and the owner must not be completely without fault. Nor is there any consideration of compensating for loss, since the value of the property is irrelevant to whether it is forfeited. That is enough to satisfy the Browning-Ferris standard, and to make the entire discussion
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