(dissenting).
I respectfully dissent. Iowa Code section 809.1(2)(a)(b) is void as applied to this defendant because it is unconstitutionally vague in violation of the due process guarantees of the federal and state constitutions. U.S.C.A. Const.Amend. 14; Iowa Const, art. I § 9.
In seeking a constitutional footing to uphold Iowa’s forfeiture statute the majority has molded the language to its own liking. Words have magically appeared that were not in the statute when passed by the legislature and are not there now. Nowhere does the statute refer to a “substantial connection” between the property forfeited and the crime committed. The Iowa statute by its plain and undefined terms vacuums all property used to “facilitate” the commission of a criminal offense.
The standards for evaluating vagueness were enunciated in Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972):
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. *881Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.
The Supreme Court has cautioned that the tests for vagueness are not mechanical exercises. A criminal ordinance is more closely examined than a civil one, because criminal penalties are more severe. See Record Head Corp. v. Sachen, 682 F.2d 672 (7th Cir.1982). Vagueness is also tested by more exacting standards when constitutionally protected rights are threatened — in such circumstances vagueness and overbread'th analysis are cognate. Id. 682 F.2d at 674.
In the instant case we have the confluence of these rules of construction, referenced by the majority and ignored. Until now, we have had a long history of eyeing forfeitures with great caution. See, e.g., State v. McGraw, 191 Iowa 1090, 1093-94, 183 N.W. 593, 595 (1921); In re Emerson's Estate, 191 Iowa 900, 906, 183 N.W. 327, 329 (1921); State ex rel. Shaver v. Iowa Tel Co., 175 Iowa 607, 623, 154 N.W. 678, 683 (1916). We have said forfeitures are penal in nature. State v. One Certain 1982 Honda Auto., 353 N.W.2d 90, 91 (Iowa 1984); State v. One Certain 1969 Ford Van, 191 N.W.2d 662, 666 (Iowa 1971). They are disfavored in law and equity. Chicago R.I. & P.R. Co. v. City of Iowa City, 288 N.W.2d 536, 541 (Iowa 1980); Lovlie v. Plumb, 250 N.W.2d 56, 63 (Iowa 1977); Collins v. Isaacson, 261 Iowa 1236, 1242, 158 N.W.2d 14, 17-18 (1968). They should be strictly construed. State v. One 1972 Chevrolet Pick-Up Truck, 252 N.W.2d 466 (Iowa 1977).
Under the guise of “strictly construing” the forfeiture provision at issue, the majority seeks to render the word “facilitate” less opaque by requiring a “substantial connection” between the forfeited property and the crime. The term was coined by some federal courts in dealing with the provisions of a federal drug forfeiture statute, 28 U.S.C. section 881(a)(4). The majority claims that this statute is similar to our state’s sweeping forfeiture law. It reasons that the application of the judicial doctrine of a substantial connection between the crime and the forfeited property sufficiently modifies the phrase “used to facilitate” so as to render it constitutionally acceptable.
The majority fails to point out, however, that the federal forfeiture statute construed by federal courts to require a substantial connection is very different from the Iowa statute. The federal statute, for example, enumerates the type of property that may be forfeited and requires the commission of a specific crime to trigger forfeiture. Most importantly, the doctrine requiring a “substantial connection” was minted in reference to the forfeiture of conveyances used “in any manner to facilitate the transportation, sale, receipt, possession or concealment” of controlled substances. The judicially imposed requirement of a “substantial connection” has significance in defining by circumscription the clause “in any manner to facilitate.” Iowa’s statute does not contain the words, “in any manner,” and as a consequence the doctrine has no referent connection with the Iowa statute. The phrase “substantial connection” is actually dichotomous to “facilitate.”
Although the majority has found meaning from the dictionary description of “facilitate,” little is thereby done to solve the constitutional defect of vagueness. The problem with the word “facilitate,” absent any further guidance by the legislature, is that its elasticity knows no bounds. Property thought by one policeman, judge or jury to be used to make easier the commission of a crime may not be so viewed by another. The statute is unconstitutionally vague because “there are no standards governing the exercise of discretion.” Papachristou v. City of Jacksonville, 405 U.S. 156, 170, 92 S.Ct. 839, 847, 31 L.Ed.2d 110 (1972). The Seventh Circuit held a *882zoning ordinance unconstitutionally vague because:
“No standard for conduct is specified at all.” Such a provision simply has no core. This absence of any ascertainable standard for inclusion and exclusion is precisely what offends the due process clause.
Entertainment Concepts, Inc. Ill v. Maciejewski, 631 F.2d 497, 501 (7th Cir.1980) (emphasis in original) (quoting Smith v. Goguen, 415 U.S. 566, 578, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974)).
In Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), the Supreme Court guided us as follows:
As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra [455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ]; Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the vagueness doctrine “is not actual notice, but .the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.” Smith, 415 U.S. at 574, 94 S.Ct. at 1247-1248. Where the legislature fails to provide such minimal guidelines a criminal statute may permit “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” Id. at 575, 94 S.Ct. at 1248.
The sporadic enforcement of the statute is fully demonstrated in the instant case by the testimony of the arresting officer.
Q. And you and Officer Schutte decided to forfeit the boat; is that correct?
A. That’s correct.
Q. Why did you decide to do so?
A. Because of the fact that we viewed this as a far more heinous, in respect to fish and game matters, crime that the average fish and game violation is. In the first place, it was a matter of commercialization since there was a commercial fish hatchery involved; and we thought that the fish were being — for that hatchery operation were being taken illegally from the lake. And even if it had been just a gill netting operation for private use, we may well have decided to forfeit some of the things; but we don’t do that as a normal circumstance of average fish and game violations. It takes quite an outlandish circumstance before we decide to go to that extent.
Q. And you felt that the circumstances existed in this case?
A. That’s correct.
[[Image here]]
Q. Now, you indicated that you don’t normally forfeit a boat for a normal violation of State Conservation laws?
A. Such as a fishing license or an over limit of fish, no, we wouldn’t contemplate it for that.
Q. So you select certain crimes that are heinous enough to forfeit the boat; is that correct?
A. That’s correct, or any other piece of equipment for that matter.
Other officers may or may not view this or other crimes to be heinous enough to call for forfeiture. Would possession of ten fish over the daily limit prompt a forfeiture; if not, would twenty? Fifty? In this case the officers seized for forfeiture Easter’s boat, trolling motor, depth finder, and boat trailer. His car that pulled the boat trailer was not seized although it could have been since the exception in section 809.1(4) applies only to motor vehicle law violations. How can any meaningful distinction be drawn that the boat trailer “facilitated” commission of the crime while the car that brought it to the scene did not? If a defendant was illegally fishing out of his home would his home be forfeited since it *883was used to physically support him and thereby facilitated committing the crime?
In Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) the Supreme Court struck down a vagrancy statute for vagueness. The court found it unconstitutional because it encouraged arbitrary and erratic arrests and convictions. It furnished a convenient tool for “harsh and discriminating enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.” Id. 92 S.Ct. at 847. Answering the argument of necessity the court said: “Of course, vagrancy statutes are useful to the police. Of course, they are nets making easy the roundup of so-called undesirables. But the rule of law implies equality and justice in its application.” Id. at 848. See also Smith v. Goguen, 415 U.S. 813, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974).
I would affirm the district court’s holding the forfeiture statute unconstitutional based on the void for vagueness doctrine.
CARTER and LAVORATO, JJ., join this dissent.