State ex rel. Campbell v. Eighteen Thousand Two Hundred Thirty-Five Dollars in U.S. Currency

OPALA, J.,

concurring

11 Although I join in today's pronouncement, I write separately to focus on points that distinguish forfeitures in rem 1 from those in personam.

T2 At the time our nationhood began the English law recognized three kinds of forfeitures. The first of these was forfeiture upon conviction of a felony or treason; the second dealt with deodands; 2 and the third *1086 consisted of statute-based forfeitures. 3 Of the three English-law classes, only forfeitures in statute-based proceedings survive in the United States. Statutory forfeiture proceedings in the United States may be divided into those in rem and in personam. The most notable statutory in rem forfeiture remedy now available is against the means of land transport as well as against commodities used in violation of law. A statutory proceeding to forfeit money seized "in close proximity to any amount of a controlled dangerous substance" is one in rem. 4 It is predicated upon the money's connection with its ilegal use. The liability of a res is founded on the fiction introduced early into the English legal system by the law of deodands. The key component of that law was that an inanimate object (or an animal or a slave) may be "guilty of wrongdoing." A legally guilty thing may never be exonerated, either in whole or in part. In rem forfeiture actions are brought solely against things called "instrumentalities"-te., against property that is subject to seizure "because it was the actual means by which an offense was committed." 5

3 On the other hand, in personam forfeiture is based not on the guilt of instrumentality sought to be forfeited but on human conduct of one who is the defendant in the case. In a proceeding to impose a forfeiture of one's office, the action is pressed not against an inanimate object-the res-but against an office holder who by law is required to forfeit an office upon conviction of a felony. 6 In personam forfeiture remedies must also be invoked when the government seeks to deprive a convicted office-holding felon of benefits that flow from a forfeited office.

T4 In this case there is no doubt that the forfeiture remedy is pressed against the seized money (res) and not against a person. The case is hence prosecuted in rem and not in personam.

. The term "in rem" is Latin for "against a thing." An in rem proceeding determines the status of a thing and the rights of persons associated with respect to that thing. Black's Law Dictionary 797 (7th ed.1999).

. The ancient law of deodands is founded on the fiction that an inanimate object (or an animal or slave) may be guilty of wrongdoing. The term "deodand" derives from the Latin Deo dandum (a thing to be given to God). Black's Law Dictionary 392 (5th ed.1979). The value of an inanimate object (or an animal or slave) causing the death of the King's subject was forfeitable to the Crown. The forfeited object-the "deodand"-was originally used to provide funds for religious masses for the dead. That use of the proceeds later changed from solely religious to charitable purposes. When the latter purpose ceased, the deodand became a source of revenue for the Crown, and the Crown's retention of the monies was justified as a penalty for carelessness. Aus *1086 tin v. United States, 509 U.S. 602, 611 , 113 S.Ct. 2801, 2806 , 125 L.Ed.2d 488 (1993) (citing Holmes, The Common Law, c. 1, supra note 30, and 1 William Blackstone Commentaries "300, 301). For an extended discussion of the three types of forfeiture in existence in England during the late 18th century, see Austin, supra, 509 U.S. at 611-16 , 113 S.Ct. at 2806-09 ; Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-85 , 94 S.Ct. 2080, 2090-92 , 40 L.Ed.2d 452 (1974). See also State v. Bisaccia, 45 N.J. 504 , 213 A.2d 185, 187 (1965).

. State v. One 1965 Red Chevrolet Pickup, 2001 OK 82 , 37 P.3d 815 ; Duncan v. Oklahoma Department of Corrections, 2004 OK 58 , 95 P.3d 1076, 1086 (Opala, J., dissenting).

. 63 O.S.2001 § 2-503(A)(7).

. U.S. v. Bajakajian, 524 U.S. 321, 334 , 118 S.Ct. 2028, 2036 , 141 L.Ed.2d 314 (1998), where it was said in footnote 8 that although the term "instrumentality" is of recent vintage, it fairly characterizes property that historically was subject to forfeiture because it was the actual means by which an offense was committed. Instrumentality forfeitures have historically been limited to the property actually used to commit an offense and no more.

. See Hendrick v. Walters, 1993 OK 162 , 865 P.2d 1232 .