454
Thomas, J., concurring
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 453. 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 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. Collins, 506 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, 495 U. S. 604, 619 (1990) (plurality opinion) (a process of law that
Page: Index Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 NextLast modified: October 4, 2007