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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).
Despite these concerns, Attorney General Jeff Sessions issued new guidelines last year — over the objections of civil libertarians — that empower the Department of Justice to forfeit assets seized by state and local law enforcement whenever the conduct giving rise to the seizure violates federal law. See, U.S. Dep't of Justice, Memorandum of Deborah Connor, Acting Chief, MLARS (http://bit.ly/2GNJrSb); Rebecca Ruiz, “Justice Dept. Revives Criticized Policy Allowing Assets to Be Seized,” N.Y. Times (Jul. 19, 2017). These guidelines reversed a decision in January 2015 by then-Attorney General Eric Holder to prohibit so-called “adoptive forfeitures,” the practice where a state or local law enforcement agency seizes property pursuant to state law and requests that a federal agency take the seized asset and forfeit it under federal law, except in cases raising public safety concerns. Adoptive forfeitures have been criticized for allowing state and local authorities to seize assets in questionable circumstances, such as minor traffic stops, and rely on the often less-demanding federal requirements in forfeiting the assets. See, Christopher Ingraham, “Jeff Sessions's Justice Department Turns a $65 Million Asset Forfeiture Spigot Back On,” Washington Post (July 19, 2017); Katie Zavadski, “Cops Can No Longer Just Seize Your Money,” New York Magazine (Jan. 16, 2015).
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