In the letter below, Professor Don Boudreaux writes in reaction to today’s WSJ editorial about the absurd injustices done under civil asset forfeiture laws. He makes a good argument that such laws should have been declared unconstitutional the last time the Supreme Court dealt with the issue; just because the Court blew it then doesn’t mean we have to live with it in perpetuity. I would suggest an amendment to make it clear that what goes on under these laws does not comport with due process of law.

Here’s the letter:

Editor, Wall Street Journal
1211 6th Ave.
New York, NY 10036

Dear Editor:

You properly denounce Philadelphia’s abominable practice of boosting its revenues by using civil forfeiture to seize properties of people convicted of minor criminal offenses (“What’s Yours Is Theirs,” Sept. 3). Much blame for this sorry state of legal affairs belongs to the late Chief Justice William Rehnquist.

The 1996 case Bennis v. Michigan upheld, by a 5-4 vote, the civil seizure of John and Tina Bennis’s car after John pled guilty to having sex with a prostitute in the car. Although John paid a fine for this criminal deed, the government nevertheless seized the car through civil forfeiture. The Supreme Court ruled that Tina Bennis’s innocence of her husband’s criminal misdemeanor did not protect her from being stripped of her ownership share in the car. Writing for the majority, Mr. Rehnquist reasoned that, because civil forfeiture was part of Anglo-American common law when the Bill of Rights was ratified, the Constitution allows such civil seizures.

But the Chief Justice’s history was criminally shoddy. When the Bill of Rights was ratified, civil forfeiture was used to seize the properties only of wrongdoers who were physically outside of the jurisdiction of a state or federal criminal court. A wrongdoer within a court’s jurisdiction could be stripped of property only upon being convicted of a crime – that is, only through criminal forfeiture. Because the Bennises – as well as the victims of Philadelphia’s seizures – are obviously within the jurisdiction of the relevant criminal courts, a correct reading of legal history demands that Bennis be overturned and that civil forfeiture be used only if and when property owners cannot be brought into court to stand trial for their alleged criminal offenses.

Donald J. Boudreaux
Professor of Economics