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A Broadening Consensus to Narrow Asset Forfeiture
Editor's note: When Attorney General Jeff Sessions announced in July that the federal government planned to again emphasize the pursuit of civil asset forfeitures, an issue moved to the front burner for health care providers and their advisers: If the federal (or state) government decides to pursue a case against a care provider or medical practice —€ perhaps for defrauding Medicare or for illegally selling prescriptions for opioid drugs —€ it can seize the alleged culprit's property, even before conviction. For example, the federal government is authorized under 21 U.S.C. § 881(a)(7) to seize assets used to violate the federal Controlled Substances Act, including real estate. The stakes are high, so it's important to keep informed of the trends in the realm of asset forfeiture.
Background
Asset forfeiture has a long history in our legal system. We inherited it from the British, who used forfeiture as a weapon to combat piracy and customs offenses on the high seas. Modern asset forfeiture has expanded its reach from its maritime origins to a broad range of crimes in a three-part system of criminal, civil and administrative forfeiture. The three systems have varying procedures, but all allow the government to forfeit property that has been illegally obtained or used. The U.S. Supreme Court has recognized that asset forfeiture “statutes serve important governmental interests such as 'separating a criminal from his ill-gotten gains,' 'returning property, in full, to those wrongfully deprived or defrauded of it,' and 'lessening the economic power' of criminal enterprises.” Honeycutt v. United States, 198 L. Ed. 2D 73 (U.S. 6/5/17) (quoting Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 629-30 (1989)). Today, federal and state governments forfeit billions of dollars in private property.
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