High Court Puts An End To Unfair Asset Forfeiture

June 8, 2017

Asset forfeiture has long been a potent weapon in the government’s arsenal for recovering property acquired through a criminal enterprise. Due to its efficacy in clawing back illicit gains, forfeiture has been used increasingly — and arguably overused. In recent years, the government has endeavored to broaden the scope of forfeiture liability by imposing joint and several liability for forfeiture of the conspiracy proceeds on each co-conspirator, irrespective of how much she benefited personally. As a consequence, when one defendant cannot satisfy the entirety of a forfeiture judgment against her, prosecutors and courts frequently have looked to co-defendants to make up the balance. Using an in personam judgment against a co-defendant, the government can satisfy the order of forfeiture with property that was neither owned by the less culpable defendant nor connected to the crime in any way.

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