Rudy's Car Collection

Drive drunk, lose your car: It's the sort of simple, tough-sounding slogan that politicians have trouble resisting. Days after New York City Mayor Rudolph Giuliani announced his new policy, Long Island officials were copying him and several New Jersey mayors were thinking about it.

In this age of heightened awareness about the hazards of drinking and driving, few are bold enough to suggest that losing your car is excessive punishment for having one too many before getting behind the wheel. Officially, though, Giuliani's policy is not a punishment at all–a fact that should worry even those who like the idea of socking it to drunk drivers.

When the New York City police arrest someone for driving while intoxicated and take away his car, they are not imposing a penalty; since the driver has not been convicted yet, that would be unconstitutional. Rather, they are beginning a process of "civil forfeiture" through which the "instrumentality of a crime" is confiscated.

Technically, the forfeiture is an action against the car, not against the driver; hence these cases have names like City of New York v. One 1998 Honda Accord. To keep the Honda, the city has to convince a judge that it's more likely than not that the car was operated by an intoxicated driver.

This test is weaker than the standard used in criminal cases, where the defendant must be proven guilty beyond a reasonable doubt. Consequently, the city can keep the car even if the driver is ultimately acquitted.

"Let's say somebody is acquitted," Giuliani said recently, "and it's one of those acquittals in which the person was guilty, but there is just not quite enough evidence beyond a reasonable doubt. That might be a situation in which the car would still be forfeited."

In other words, the city can decide that a driver is guilty, regardless of what a jury says, and administer punishment accordingly. I'm sorry. Did I say "punishment"? However it might look, taking away the guy's car is emphatically not a way of punishing him.

In this country, we do not punish people who have been acquitted. We only punish their property.

That may sound funny, but it's a venerable legal doctrine. The idea of holding inanimate objects accountable for wrongdoing goes back to medieval times and has been at the heart of this country's civil forfeiture laws since the founding.

In the last couple of decades, that idea has made a big comeback, thanks to the war on drugs. Prosecutors and police officers found that they could seize assets they believed were linked to drug trafficking without having to arrest the owner, let alone convict him.

Soon the use of civil forfeiture spread to other crimes. In 1996, for example, the U.S. Supreme Court upheld the forfeiture of a woman's car after her husband used it to pick up a prostitute. The majority cited "a long and unbroken line of cases in which this Court has held that an owner's interest in property may be defeated by reason of the use to which the property is put even though the owner did not know that it was to be put to such use."

Which brings us back to New York, where officials have indicated that innocent owners will not lose their cars just because drunk friends or relatives happened to drive them. "Take the case of a teen-ager arrested for drunken driving in a car registered to his mother," says The New York Times. "If the teen-ager can establish that he borrowed the family car and that his mother had no idea he would be drinking, officials said, the car will eventually be returned."

This is not terribly reassuring, since, as the Times informs us later in the same article, a forfeiture proceeding "could take anywhere from days to years," during which time the car would remain in the city's custody while the mother tried to prove she had "no idea" her son would be drinking. And even when a car is registered in the driver's name, taking it away will often hurt other members of the family.

In any case, the city's concern for innocent owners belies the notion that civil forfeiture is not really a punishment. Politicians take advantage of this legal fiction to avoid the inconvenience of due process, but even they do not really believe it.