The Supreme Court's unanimous ruling Monday to curb the government's ability to seize property from criminal conspirators, even if they didn't profit from the crime, is the latest sign of the court's changing opinion on civil asset forfeiture.
"Congress did not authorize the government to confiscate substitute property from other defendants or co-conspirators," wrote Justice Sonia Sotomayor for the majority, referring to the Comprehensive Forfeiture Act of 1984.
"It authorized the government to confiscate assets only from the defendant who initially acquired the property and who bears responsibility for its dissipation."
Prior to this decision, prosecutors could send a forfeiture order to a low-level member of a criminal organization for far more than they make off it.
"If you were the schmuck who got caught and you were a bit player and you never saw 98 percent of the proceeds from the scheme you were involved in, you would still be socked with a forfeiture order for 100 percent of those proceeds, and that judgment would follow you around for the rest of your life," Barry Pollack, president of the National Association of Criminal Defense Lawyers, told HuffPost.
"What the court is doing is just simply saying, to use these tools, you have to prove the allegations that you're making ― the mere fact that you allege something doesn't make it true, and there has to be a basis in reality for the government to pursue assets," he added.
"If what you really want to accomplish is to get that money back, you're going to have to do the hard work of finding the person or the company that ended up with the money and get it from them."
Public interest attorney Dan Alban of Institute for Justice, which advocates for forfeiture reform, told the HuffPost that Sotomayor "could have just ended without the discussion of the history of forfeiture law and the traditional limits on the use of forfeiture law, but she included a pretty long discussion of it."
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