SUPREME COURT OF THE UNITED STATES

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No. 92-6073

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RICHARD LYLE AUSTIN, PETITIONER v.

UNITED STATES on writ of certiorari to the united states court of appeals for the eighth circuit

[June 28, 1993]

Justice Kennedy , with whom The Chief Justice and In recounting the law's history, we risk anachronism if we attribute to an earlier time an intent to employ legal concepts that had not yet evolved. I see something of that in the Court's opinion here, for in its eagerness to discover a unified theory of forfeitures, it recites a consistent rationale of personal punishment that neither the cases nor other narratives of the common law suggest. For many of the reasons explained by Justice Scalia, I am not convinced that all in rem forfeitures were on account of the owner's blameworthy conduct. Some impositions of in rem forfeiture may have been designed either to remove property that was itself causing injury, see, e. g., United States v. Brig Malek Adhel, 2 How. 210, 233 (1844), or to give the court jurisdiction over an asset that it could control in order to make injured parties whole, see Republic National Bank of Miami v. UnitedStates, 506 U. S. ___, ___ (1992) (slip op., at 7).

At some point, we may have to confront the constitutional question whether forfeiture is permitted when the owner has committed no wrong of any sort, intentional or negligent. That for me would raise a serious question. Though the history of forfeiture laws might not be determinative of that issue, it would have an important bearing on the outcome. I would reserve for that or some other necessary occasion the inquiry the Court undertakes here. Unlike Justice Scalia, see ante, at 3, I would also reserve the question whether in rem forfeitures always amount to an intended punishment of the owner of forfeited property.

With these observations, I concur in part and concur in the judgment.