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Challenging Disproportionate Forfeitures
In recent years, the U.S. Supreme Court has demonstrated a renewed willingness to police the boundaries of the law of asset forfeiture in order to make sure that defendants are treated fairly. In Honeycutt v. United States, 137 S. Ct. 1626 (2017), the Supreme Court rejected the argument that a federal criminal forfeiture statute permits joint and several liability for criminal asset forfeiture judgments, thereby protecting defendants who were only marginally culpable for a larger offense. One year prior, in Luis v. United States, 136 S. Ct. 1083 (2016), the Supreme Court held that pretrial restraint of legitimate, untainted assets violated the Sixth Amendment, when the government sought to secure the untainted property as substitute assets for eventual forfeiture or restitution. Last year, Justice Clarence Thomas even expressed an interest in the Court taking up the question of whether due process requires the government to prove its entitlement to civil forfeiture by clear and convincing evidence. Leonard v. Texas, 137 S. Ct. 847 (2017) (Thomas, J., concurring).
It is sensible for the Supreme Court to focus on the fairness of asset forfeiture. As Justice Thomas explained: “[F]orfeiture has in recent decades become widespread and highly profitable.” Id. at 848. Between 2007 and 2016, the U.S. Department of Justice (DOJ) disposed of more than $20 billion of forfeited property. U.S. Dep't of Justice, 10-yr Summary of Financial Report Data. State and local law enforcement officials have expanded their asset forfeiture programs to help finance their departments, attending seminars on how to seize the best “goodies” and allegedly spending the proceeds of those seizures to fund purchases with only a tenuous connection to their law enforcement missions, such as lawn equipment, fitness machines, and liquor for office parties. See, Shaila Dewan, “Police Use Department Wish List When Deciding Which Assets to Seize,” N.Y. Times (Nov. 9, 2014); Richard D. Emery, “Who's Policing the Prosecutors,” N.Y. Times (Dec. 10, 2014).
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