Would you like to forfeit your house?

Imagine a guest with a marijuana cigarette secretly tucked in his pocket visits your house. The police storm in, seize the cigarette, and arrest your guest for drug possession. The police then announce that the government now owns your house. “What?!” you wail, “I did nothing wrong. How can you take my house?”
You are told that civil-forfeiture law allows government to take property that harbored an “abatable nuisance” – illegal drugs, in this case. An officer explains that “Your house, not you, committed a wrong. To help stem drug trafficking, it must be seized. Your doubts about our ability to confiscate your property will be dispelled by reading the Supreme Court’s March 4th decision in Bennis vs. Michigan.”Would you like to forfeit your house?
Certain that such tyranny is impossible in America, you rush to readBennis. Your heart sinks. Chief Justice Rehnquist explains that the Constitution permits Michigan to use civil forfeiture to strip Tina Bennis of her ownership of an automobile in which her husband John had a tryst with a prostitute. Civil forfeiture allows government to take property from someone without convicting that someone of a crime.
Everyone concedes that Mrs. Bennis was unaware that John used the car for illegal sex – for which he was convicted and fined $250. Still, according to the Court, Michigan violated neither the Due Process nor the Takings clauses of the Constitution by taking the innocent Mrs. Bennis’ property without as much as a “thankee, ma’am.” The court reasoned that the state’s confiscation and forfeiture of Mrs. Bennis’ car is constitutional because courts have long upheld civil-forfeiture seizures of some properties. But these were historically confined to properties whose owners could not be tried in domestic courts. Not until Prohibition – long after the Constitution was adopted – did government generally wield civil forfeiture against people who could easily be criminally prosecuted.
Traditionally, no one can be punished unless first convicted. And government cannot convict someone – nor forfeit his property – who is denied an opportunity to defend himself before an impartial jury. But what to do about criminals outside of a domestic court’s jurisdiction? This was a pressing question for courts in cases involving smuggled goods as well as ships used for smuggling or piracy on the high seas. Owners of these properties were typically outside of domestic jurisdiction. Unless the law found a practical way to punish these foreign owners, smuggling and piracy would continue unabated.