Dirty Dozen: Civil Asset Forfeiture

What follows is a review and critique of a single chapter from the book, The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. 

The Book is an assessment, one main case per chapter, of Supreme Court decisions and why the authors believed the court decided the case wrongly.

Civil Asset Forfeiture

Bennis v Michigan, (1996)




Civil Asset Forfeiture (CAF) is the legal doctrine, both in common law and often by state statute, that a piece of property may be confiscated and sold by the government if it was used during a crime.


In the beginning CAF was used in admiralty law (shipping and ocean cargo). Most cases were confined to circumstances where the ship was directly involved in a crime (generally smuggling) and the owner was beyond the reach of the court. Courts would sue the ship itself, and once found guilty of being “involved in” the crime, would confiscated and sell the ship. This was viewed as appropriate punishment for someone beyond the court’s reach who was, at least ultimately, responsible for the illegal use of his ship.


During the American Civil War a series of federal laws entitled ‘The Confiscation Acts’ expanded civil forfeiture to non-admiralty property. The acts allowed confiscation of non-admiralty southern property being used to aid in the rebellion. The acts were only applicable to areas already occupied by union forces, and were primarily used to free slaves as a precursor to the Emancipation Proclamation. Such laws, while no longer confined to admiralty, still carried the original rationale of the common law: a piece of property (slaves), used in a crime (rebellion), by an owner beyond the court’s jurisdiction.


New statutory laws have gone beyond the traditional limitations; states may now seize property that is associated with a crime regardless of whether the owner is beyond a state court’s power. Traditionally it did not matter whether the owner of the property at issue knew or endorsed the illegal activity because he was beyond the jurisdiction of the court. With the expansion of this power, courts have had to face the question whether it is right to punish an owner who can be present for a trial on the merits of the case.

Most statutes do allow for confiscation of the property, regardless of the owner’s innocence. Opponents argue this is tantamount to “guilt by association”, punishing an innocent party for what another person has done with their property. Proponents claim such liability is a lawful expansion of CAF, and justified as both a punishment to the guilty party who used the property and as a deterrent to the innocent owner for their careless lending of their property to a criminal. This issue was so divisive it went to the Supreme Court.


In Bennis v. Michigan, 516 U.S. 442 (1996), challengers alleged a Michigan law that deprived an innocent owner of his property under CAF violated the 5th and 14th Amendment’s “due process” and “takings” protections.

A Wife and husband co-owned a car that the husband used to commit a crime. The car was seized, and after a finding of guilt for the husband, the car was sold. The Wife sued, arguing that she had no knowledge of or participation in the crime, and for the state to sell her car under the CAF law was a violation of her right to property and due process.

The Supreme Court, in a 5-4 decision, found that the law did not violate due process. It held that Michigan was free to enlarge or minimize the common law protections of civil asset forfeiture, and that because the Wife had an opportunity in a court of law to contest the forfeiture due process had been satisfied. There was nothing in the Due Process clause that required a specific right or outcome, merely that legal processes be followed.


“The Dirty Dozen” book challenges the ruling, focusing on two aspects: that the petitioner was innocent, and that the doctrine of Civil Asset Forfeiture should always allow for an innocent-owner defense, which should be read into the Constitution’s Due Process clause. While this is a tempting conclusion I think it’s quite wrong as a matter of Constitutional doctrine.


First, Judges are meant to “apply” the law, not “make” it. The Constitution does not mean whatever we think it ought to mean. A decision may be unpleasant and still constitutional. Nor does the constitution change without Amendment.

Second, the “Due Process” clause of the 14th Amendment is not meant to be a grant of power for the Supreme Court to fix laws it finds unpleasant. There is some significant disagreement between liberal-progressives and conservatives on what the “Due Process” clause actually means. Progressives claim it has an implied grant of power for “substantive due process”: even if a law is duly enacted and equitably enforced it might still be unconstitutional if the court finds it violates some unwritten principle of decency. Nowhere in the text is this meaning evident, such a doctrine is contrary to a written constitution in general, and would make other segments of the constitution such as the enumeration of rights redundant.

Conservative justices insist the text is only a minimal protection designed to prevent arbitrary government action by the states. So long as the governments act in a procedurally sound manner, the Due Process clause will be silent as to what the governments actually do.

Third, the Dirty Dozen authors seem to be making an argument about the common law, and hoping the Supreme Court would apply their reasoning to the Constitution. This has little place in the American scheme law.

The common law is judge-made law. It still exists in America, but it is the “lowest” form of law; it can be amended or modified by laws from Congress, state legislatures, or state or federal constitutions. Therefore it seems completely inapplicable for the Dirty Dozen to argue that a state law that modifies the common law is somehow unconstitutional. State laws are constantly modifying, abolishing, or creating new rights or liabilities different from the common law.

Here, the Dirty Dozen is correct in its history: that the common law doctrine of CAF was confined to admiralty law, and was only applicable when a guilty owner was beyond the reach of court. However, the authors acknowledge that CAF can be modified by statute, even to cases where a person is not beyond the reach of the court. Thus they tacitly acknowledge that the doctrine originally does not violate Due Process, and that it can be modified. If the Due Process clause is limited, then the MI law is not unconstitutional because it is a valid state-modification of CAF, which does not require an innocent-owner defense.

What the “Dirty Dozen” authors wanted was for the court to use Due Process to force a common-law protection to override state law. This would be to allow the lowest form of law to overrule legislatures and even Congress. Nowhere is such a doctrine required by the Constitution. While the innocent-owner defense may be good policy, it has no place in the text of the Constitution. Substantive Due Process is a dangerous doctrine, and ought not be used by anyone, liberal, conservative, or libertarian. I side with the majority of the court in this case.


It should be noted that many states have enacted greater protections against Civil Asset Forfeiture, and the solution to these bad laws is to modify them at the state level, not attempt to redress them at the federal level.

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