Supreme Court rules
In the meantime, a number of developments significant to forfeiture had occurred on the Oregon and national political scenes. Bennis v. Michigan, an important forfeiture case, was handed down by the Supreme Court. Bob Packwood resigned from the U.S. Senate and was replaced by Portland's popular Representative Ron Wyden. This left an open seat in Congress that was filled by Blumenauer, who immediately began laying the groundwork for placing vehicle forfeiture on the national agenda. While Blumenauer's efforts have the potential to have a positive effect on highway safety nationwide, a congressional failure to require greater forfeiture protections than those afforded by the lax constitutional standards enunciated recently by the Supreme Court may result in a deleterious--and in light of the Reed study, probably a needless--erosion of civil liberties.

In Bennis, the Supreme Court upheld the constitutionality of a Michigan law authorizing the forfeiture of a vehicle used in the solicitation of prostitution over the constitutional objections of the co-owner of the car (and unfortunate wife of the offender). Tina Bennis's central claim was that the statute failed to provide a defense to forfeiture based on her lack of knowledge or authorization of the offending use to which the car was put, depriving her of due process under the Fourteenth Amendment to the U.S. Constitution.

Law traced to Middle Ages
The Supreme Court's rejection of her claim lies in the peculiar legal status of the civil in rem proceeding used in forfeiture cases, which is rooted in the idiosyncrasies of ancient English law. Modern forfeiture processes stem from the medieval law of the deodand, by which property used in breaking a law was to be returned to God, or his representative on earth, the Crown. In the scholastic jurisprudential logic of the era, the proceeding was against the property itself, not the owner, and hence any interest of the owner was simply irrelevant.

Though this fiction has been abolished in other areas of American law, it persists in nearly unaltered form in respect to forfeitures. In Bennis, the Supreme Court relied on an unbroken string of decisions beginning with Justice Story's opinion in the 1827 forfeiture case of The Palmyra and culminating in the 1974 case Calero-Toledo v. Pearson Yacht Leasing Co. which concluded that "the innocence of the owner of property has almost uniformly been rejected as a defense" [against forfeiture].

Civil liberties affected
The omission in Congressman Blumenauer's proposed legislation of a requirement that state forfeiture programs provide innocent-owner defenses, coupled with the Supreme Court's decision in Bennis v. Michigan, raises the prospect that many more Tina Bennises will find their property confiscated due to actions beyond their authorization or control as states respond to the incentive. Furthermore, Blumenauer's intention is that the current proposal is a first step toward a larger goal of providing even greater incentives, or perhaps even requiring states to enact forfeiture programs to qualify for certain federal funds.

Blumenauer admits that the breadth of its innocent-owner defense in the Portland ordinance was in part due to uncertainty about whether a more restrictive law could withstand constitutional challenge. Now that Bennis makes it clear that no such defenses need be provided, Blumenauer claims that he would "crank down" the exceptions if he were writing the ordinance today, but he would not eliminate them because he feels that such exceptions are correct as a matter of fairness and necessary to maintain the base of support for forfeiture, regardless of what the Supreme Court says.

If Blumenauer thinks so, then why doesn't the proposed Congressional legislation have an innocent-owner defense? He has a variety of answers, including the hope that states will do so without being required, possibly in response to the same pressures as in Oregon, and the availability from his office of model statutes that do include the defense. Let's hope that Blumenauer is right, and that in future legislation, Congress will protect the Tina Bennises of the world, because the Supreme Court clearly will not. Vehicle forfeiture has the potential to take drunk drivers off our highways nationwide as it has in Portland, but it need not do so at the expense of our civil liberties.

Ian B. Crosby, from Juneau, Alaska, graduated from Reed in 1995 with a B.A. in philosophy. He is currently a second-year law student at the University of Texas and an editor of the Texas Law Review.