Firm Attorneys Author Two-Part Article for Business Crimes Bulletin on Disproportionate Asset Forfeitures

June 7, 2018

Part 1: 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) (http://bit.ly/2GKQ5so), 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) (http://bit.ly/2GNBBYT), 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) (http://bit.ly/2IF3HWC) (Thomas, J., concurring).

To continue reading Part 1 of Harry Sandick, Daniel Ruzumna, and Jacqueline Bonneau's article from Business Crimes Bulletin, please click here.

Part 2: Addressing Disproportionate Forfeitures: Refining The Bajakajian Analysis

In Part One of our article (last month; http://bit.ly/2I7YIhf), we discussed the public concern over unfairness in asset forfeiture and analyzed the Supreme Court case — United States v. Bajakajian, 524 U.S. 321 (1998) (http://bit.ly/2IFwiuO) — that looked to the Excessive Fines Clause to limit the government’s authority to forfeit property. We also explained that in the years since Bajakajian was decided, the decision has been invoked by the Circuit Courts of Appeal only rarely to block the government’s forfeiture claim. Why are there so few successful challenges to forfeiture under Bajakajian?

To continue reading Part 2 of Harry Sandick, Daniel Ruzumna, and Jacqueline Bonneau's article from Business Crimes Bulletin, please click here.