In two recent United States Supreme Court cases, Justices across the ideological spectrum cast a critical eye towards the current asset forfeiture system.
This week, the Supreme Court issued a unanimous decision (with Justice Gorsuch taking no part in the opinion) reining in one important aspect of criminal forfeiture. In Honeycutt vs. U.S., the Court rejected the government’s argument that a defendant should be held liable for a forfeiture judgment based on property obtained by his co-conspirator, even if the defendant did not obtain or acquire the property.
In Honeycutt, two brothers were convicted of conspiracy to distribute a product that is used to manufacture methamphetamine. After the conviction, the government sought forfeiture judgments against the two brothers in the amount of $269,751.98 as profits of the conspiracy pursuant to the Comprehensive Forfeiture Act of 1984. Tony, the owner of the store, pleaded guilty to distribution of the product and agreed to forfeit $200,000. The other brother, Terry, went to trial, was convicted and sentenced. Despite the fact that Terry worked in the store and did not profit from the sales of the product, the Government sought to hold Terry liable for the outstanding profits from the sales. The district court declined to impose a forfeiture judgment against Terry, however the Sixth Circuit Court of Appeals reversed, stating that, as co-conspirators, the brothers were jointly liable for the forfeiture judgment.
The Supreme Court disagreed. Relying on the fact that Terry did not personally benefit from the sales, the Court found that Terry could not be held liable for profits obtained by his brother. The Court held that a plain reading of the statute does not permit joint and several liability for a forfeiture judgment. Justice Sotomayor, writing the opinion for the unanimous Court, illustrated this point through an example:
Suppose a farmer masterminds a scheme to grow, harvest, and distribute marijuana on local college campuses. The mastermind recruits a college student to deliver packages and pays the student $300 each month from the distribution proceeds for his services. In one year, the mastermind earns $3 million. The student, meanwhile, earns $3,600. If joint and several liability applied, the student would face a forfeiture judgment for the entire amount of the conspiracy’s proceeds: $3 million. The student would be bound by that judgment even though he never personally acquired any proceeds beyond the $3,600.
Joint and several liability is not authorized under the criminal forfeiture statute but rather has become a judicially created expansion of forfeiture. It is encouraging to see the Supreme Court rein in this practice and rule that a co-defendant in a conspiracy cannot be required to forfeit cash or other property he never obtained. In other words, forfeiture is limited to property the defendant actually acquired as the result of the criminal offense.
This case reflects the Court’s growing skepticism about asset forfeiture in general. In Leonard v. Texas, cert. denied on procedural grounds, Justice Clarence Thomas issued an opinion that raises important questions about “whether modern civil-forfeiture statutes can be squared with the Due Process Clause and our Nation’s history.” Pointing out that, as the law enforcement entities that seize property often are the ones to keep it, “these entities have strong incentives to pursue forfeiture.” He continued,
This system—where police can seize property with limited judicial oversight and retain it for their own use— has led to egregious and well-chronicled abuses.
These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.
Unfortunately in Leonard v. Texas, the petitioner did not raise due process arguments in the lower courts and the Supreme Court declined to hear the case. But, Justice Thomas’s decision sends a clear signal that he is sympathetic to these arguments.
As has become evident in the legislative arena, asset forfeiture is a field that both those on the left and the right recognize is need of reform. Though it is rare to see Justices like Justice Sotomayor and Justice Thomas on the same side of a legal issue, we at the Drug Policy Alliance welcome their common-sense approach to curtailing abuses and overreach in the current asset forfeiture system. We hope that these two cases portend the creation of future case law that protects civil rights and property rights, and tackles the corrosive motive for profit in our law enforcement agencies.
Theshia Naidoo is the legal director of criminal justice with the Drug Policy Alliance’s office of legal affairs .