Innocence Lost: Bennis v. Michigan and the Forfeiture Tradition

In Bennis v. Michigan, the Supreme Court upheld the State of Michigan's forfeiture of Tina Bennis's joint ownership interest in a car used by her husband for a tryst with a prostitute. Surveying its prior cases, the Court found that Tina Bennis's innocence of the offending conduct was irrelevant to the constitutionality of Michigan's forfeiture of her ownership interest. In so finding, the Court relied on the tradition of forfeiture to affirm the constitutionality of the "tyranny and avarice" condemned by James Wilson-a leading framer of the Constitution. The Anglo-American tradition of civil forfeiture, however, is considerably narrower than the Court's account.

The forfeiture known to the common law never would have reached the conduct giving rise to the forfeiture in Bennis. The modern Court's careless reading of forfeiture tradition has allowed state and federal governments to expand forfeiture well beyond its historical boundaries. Consequently, forfeiture has come to be an instrument of oppression that would have appalled Wilson and the rest of America's founding generation.