294
Kennedy, J., concurring
Embracing the rule of Various Items, that the Double Jeopardy Clause applies only to in personam punishments of the wrongdoer and not in rem forfeitures, does not imply that forfeiture inflicts no punishment. Though I have expressed my doubts about the view expressed in Austin, 509 U. S., at 611-618, that throughout history forfeitures have been intended to punish blameworthy owners, id., at 629 (opinion concurring in part and concurring in judgment); Bennis v. Michigan, 516 U. S. 442, 472-473 (1996) (dissenting opinion), I did not there question the punitive nature of § 881(a)(7), nor do I now. Under this statute, providing for the forfeiture of real property used to facilitate a drug offense, only the culpable stand to lose their property; no interest of any owner is forfeited if he can show he did not know of or consent to the crime. Ibid.
The key distinction is that the instrumentality-forfeiture statutes are not directed at those who carry out the crimes, but at owners who are culpable for the criminal misuse of the property. See Austin, supra, at 619 (statutory "exemptions serve to focus the provisions on the culpability of the owner"). The theory is that the property, whether or not illegal or dangerous in nature, is hazardous in the hands of this owner because either he uses it to commit crimes, or allows others to do so. The owner can be held accountable for the misuse of the property. Cf. One 1958 Plymouth Sedan, supra, at 699 ("There is nothing even remotely criminal in possessing an automobile. It is only the alleged use to which this particular automobile was put that subjects [the owner] to its possible loss"). The same rationale is at work in the statutory provisions enabling forfeiture of currency "used or intended to be used" to facilitate a criminal offense, § 881(a)(6). See also 18 U. S. C. § 981(a)(1)(A) (property involved in money-laundering transactions or attempts in violation of 18 U. S. C. § 1956). Since the punishment befalls any propertyholder who cannot claim statutory inno-
Page: Index Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 NextLast modified: October 4, 2007