From: Jim Rosenfield <[j n r] at [igc.apc.org]>
Newsgroups: talk.politics.drugs
Subject: Re: News Stories from the Drug War
Date: Tue, 05 Dec 1995 17:24:46 -0800 (PST)

   <<>>APn   11/29     Scotus-Forfeiture

y RICHARD CARELLI 

  WASHINGTON (AP) -- A Michigan woman's fight over a family car
-- seized by authorities after her husband used it for illicit
with a prostitute -- sparked a spirited Supreme Court debate
Wednesday. 
   At issue: The scope of government's power to confiscate
property linked to crimes but owned, at least partially, by
innocent people. 
   The high court's decision, expected by July, could affect
significantly efforts by local, state and federal prosecutors to
enforce forfeiture laws aggressively as a crime-fighting tool. 
   The justices barely allowed each of the three lawyers
appearing before them time to answer one question before posing
another. 
   Was the forfeiture of John and Tina Bennis' car after he
pleaded guilty to gross indecency in 1988 a criminal or civil
penalty, Justice Sandra Day O'Connor inquired. The lawyers for
Mrs. Bennis and Michigan disagreed on the answer. 
   Justice David H. Souter asked what Mrs. Bennis could possibly
have done to escape liability. 
   Several justices wanted to know whether a car rental company
could have lost its car if Bennis had used it for his tryst. And
what about, Justice John Paul Stevens asked, the owners of stolen
cars used in crimes? 
   When Justice Ruth Bader Ginsburg asked whether an appropriate
remedy might be letting Mrs. Bennis sue her husband, lawyer
Stefan Herpel responded, "At that point, you're in the realm of
divorce." 
   In a stage whisper, Chief Justice William H. Rehnquist
suggested, "If not before." 
   And Justice Antonin Scalia added: "I would have thought she'd
rather sue her husband than sue Michigan." 
   Bennis was arrested in Detroit after police saw him pick up a
known prostitute, park on a city street and begin receiving oral
sex. 
   Wayne County prosecutors, seeking to get tough on
prostitution, successfully sought forfeiture of the car under a
1925 anti-nuisance law. 
   The Michigan law does not contain an exception for property
used in crime without an owner's knowledge. But a federal law
requiring forfeiture of property used in drug crimes does have
such an exception. 
   Herpel argued for Mrs. Bennis that forcing her to give up the
1977 Pontiac sedan violated her due-process rights and amounted
to a governmental "taking" without the constitutionally required
compensation. 
   She is entitled to be compensated for her share in the car,
for which the Bennises paid $600 about a month before it was
seized. 
   "I couldn't believe it was happening," Mrs. Bennis told ABC
News. "You know, I hadn't done anything wrong. I was innocent and
living in America I thought this doesn't happen." 
   But Larry Roberts, a Wayne County prosecutor, urged the
justices to "reaffirm the police powers of the state in this type
of nuisance abatement." 
   "If there was punishment, it was incidental," Roberts
contended. 
   Clinton administration lawyer Richard Seamon also urged the
court to rule against Mrs. Bennis, arguing that she had not taken
"all reasonable steps" to prevent her husband's crime. 
   In incredulous tones, Justice Anthony M. Kennedy asked whether
it was the federal government's position that wives must call the
police to report that their husbands are consorting with
prostitutes. 
   Seamon's response -- "Not in every case" -- prompted the
courtroom's audience to erupt in laughter. 
   The case is Bennis vs. Michigan, 94-8729.