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Supreme Court Rejects Innocent Owner Forfeiture Defense, Hears Arguments in Sentencing Cases


April 1996

The Supreme Court, by a margin of 5-4, ruled on March 4 that there is no constitutional right to invoke the innocent owner defense against a civil forfeiture (Bennis v. Michigan, 116 S. Ct. 994, 58 CrL 2059 (U.S. March 4, 1996); "High Court: Constitution Doesn't Require Innocent Owner Defense," BNA Criminal Practice Manual, March 13, 1996, p. 116).

The ruling was a surprise for lawyers on both sides of the case because the justices appeared to be sympathetic to Tina Bennis' case during oral arguments. Her car (co-owned with her husband) was seized after police caught John Bennis participating in a sex act with a prostitute in his car. At a forfeiture hearing, Tina Bennis denied any knowledge of her husband's illegal activity, invoking an innocent owner defense. The Michigan Supreme Court had ruled that Tina Bennis does not have the right to claim part of the car (Michigan Ex Rel. Wayne County v. Bennis, 527 N.W.2d 483 (Mich. 1994)).

Chief Justice Rehnquist, writing for the majority, relied upon a long history of case law holding that property can be forfeited regardless of the guilt or innocence of the owner. According to that case law, the forfeiture of the Bennis' car does not violate her due process rights or her right to be compensated for certain government seizures. Justices Ruth Bader Ginsburg, Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas joined in the majority.

Justice Thomas, in a concurring opinion, seemed to advocate reform of forfeiture laws, but wrote that it is not within the power of the Supreme Court to initiate that reform. "The Federal Constitution does not prohibit everything that is intensely undesirable," he wrote.

"Improperly used, forfeiture could become more like a roulette wheel employed to raise revenue from innocent but hapless owners ... or a tool wielded to punish those who associate with criminals, than a component of a system of justice. When the property sought to be forfeited has been entrusted by its owner to one who uses it for crime, however, the Constitution apparently assigns to the States and to the political branches of the Federal Government the primary responsibility for avoiding that result," Thomas concluded.

The majority followed previous Supreme Court rulings and said reform of forfeiture should be handled by Congress.

In the dissent, Justice John Paul Stevens argued that government seizure of innocent people's property is unfair. There should be a distinction between the forfeiture of illegal goods and the forfeiture of property used to facilitate a crime, especially to protect innocent owners. Justices David Souter and Stephen Breyer joined in the dissent. Justice Anthony Kennedy dissented separately.

"The logic of the court's analysis would permit the states to exercise virtually unbridled power to confiscate vast amounts of property where professional criminals have engaged in illegal acts," Stevens wrote. "Fundamental fairness prohibits the punishment of innocent people."

"While I am not prepared to draw a bright line that will separate the permissible and impermissible forfeitures of the property of innocent owners, I am convinced that the blatant unfairness of this seizure places it on the unconstitutional side of that line," he wrote.

Selective Prosecution

On February 26, the Supreme Court heard arguments in a case testing the level of proof defendants should be required to offer in order to initiate discovery in an allegation of selective prosecution (see U.S. v. Armstrong, 48 F.3d 1508 (11th Cir. 1995), cert. granted, 116 S. Ct. 377 (U.S. October 30, 1995); 58 CrL 3187).

Five defendants were charged with conspiracy to distribute crack and with other drug and firearms charges. They alleged selective prosecution, saying that they were charged in the federal court, rather than the state court, because they are black. Conviction of the charges in federal court carries a longer mandatory sentence.

After seeing the defendants' briefs and supporting materials asking for discovery of prosecutor's records, the district court ordered the government to produce four pieces of information: a list of all those charged with crack cocaine or firearms offenses in the past three years; a designation of the race of all defendants; an explanation of what agencies were involved in the investigations of these offenses; and an explanation of how authorities determine whether a defendant should be charged with a state rather than a federal offense.

The government refused to comply with the discovery order, and the court dismissed the indictments. A three-judge panel of the Ninth Circuit U.S. Court of Appeals reversed the order to initiate discovery, but on rehearing en banc the order was upheld.

U.S. Solicitor General Drew S. Days III argued to the Supreme Court that defendants should have to produce "concrete evidence" to trigger discovery. In this case, the defendants should be required to show that people of other races in similar circumstances were not prosecuted for the same crimes. Days argued that selective prosecution involves both discrimination in the application of the law and the motivation behind the application. Defendants invoking it should have to show both.

When Justice Breyer asked Barbara E. O'Connor, counsel for the five defendants, to explain why she could not produce evidence that other similarly situated defendants have not been prosecuted, O'Connor said the records are not available to them unless discovery proceeds.

Both Chief Justice William Rehnquist and Justice Scalia expressed concern that selective prosecution claims allow defendants to go free. "Criminal prosecutions are supposed to be about whether the defendant is guilty of the crime," Scalia said.

Days also argued that proceeding with discovery in such selective prosecution cases is extremely expensive, but counsel O'Connor said "an even higher cost to the criminal justice system exists when unfairness is perceived."

[The Criminal Justice Policy Foundation participated in a press conference on the steps of the U.S. Supreme Court following the argument.]

Judicial Discretion

The Supreme Court has heard argument in two cases so far this term testing the discretion of judges in sentencing.

The first case (a consolidation of two cases), which involves the sentencing of the police officers convicted of violating the civil rights of Rodney King, was argued on February 20, 1996 (Koon v. U.S. and Powell v. U.S., 34 F.3d 1416 (9th Cir. 1994), cert. granted, 116 S. Ct. 39 (U.S. September 27, 1995) (94-1664 and 94-8842); 58 CrL 3173). The argument concerned the level of proof required to warrant a departure from the Sentencing Guidelines.

The second case, U.S. v. Melendez, tests judges' ability to grant downward departures from mandatory minimums when the government neglected to file a request (U.S. v. Melendez, 55 F.3d 130 (3rd Cir. 1995), cert. granted, 116 S. Ct. 417 (U.S. November 6, 1995) (95-5661); 58 CrL 3194; for background, see "Supreme Court Decides Forfeiture Case ... " NewsBriefs, December 1995, p. 6). In this case, the government did file a motion to depart from the Sentencing Guidelines, and defense counsel argued that the motion should apply to departures from mandatory minimums as well.