628
Opinion of Kennedy, J.
tality of the offense—the building, for example, in which an isolated drug sale happens to occur. Such a confiscation would be an excessive fine. The question is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.
This inquiry for statutory forfeitures has common-law parallels. Even in the case of deodands, juries were careful to confiscate only the instrument of death and not more. Thus, if a man was killed by a moving cart, the cart and its horses were deodands, but if the man died when he fell from a wheel of an immobile cart, only the wheel was treated as a deodand, since only the wheel could be regarded as the cause of death. 1 M. Hale, Pleas of the Crown *419-*422; 1 W. Blackstone, Commentaries *301-*302; Law of Deodands, 34 Law Mag., at 190. Our cases suggest a similar instrumentality inquiry when considering the permissible scope of a statutory forfeiture. Cf. Goldsmith-Grant, 254 U. S., at 510, 513; Harmony, 2 How., at 235 (ship used for piracy is forfeited, but cargo is not). The relevant inquiry for an excessive forfeiture under § 881 is the relationship of the property to the offense: Was it close enough to render the property, under traditional standards, "guilty" and hence forfeitable?
I join the Court's opinion in part, and concur in the judgment.
Justice Kennedy, with whom The Chief Justice and Justice Thomas join, concurring in part and concurring in the judgment.
I am in substantial agreement with Part I of Justice Scalia's opinion concurring in part and concurring in the judgment. I share Justice Scalia's belief that Part III of the Court's opinion is quite unnecessary for the decision of the case, fails to support the Court's argument, and seems rather doubtful as well.
In recounting the law's history, we risk anachronism if we attribute to an earlier time an intent to employ legal con-
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