In federal criminal prosecutions, forfeiture and restitution seem like they should go hand-in-hand: The government uses its broad authority to strip a criminal of his ill-gotten gains, and the court then enters an order mandating the payment of compensation to his victims. But as many practitioners—whether representing victims or defendants—learn to their dismay, the government has broad powers to seize a defendant’s property, but no obligation to direct forfeited funds to pay restitution. This article explores the apparent disconnect between the government’s forfeiture powers and the victim’s right to restitution, and provides some tips to help practitioners make the best of a difficult, contradictory system.
The modern incarnation of criminal forfeiture traces its roots back to 1970, when Congress passed the RICO Act and the Controlled Substances Act, which allowed law enforcement to seize property connected with organized crime, money laundering and illegal drug distribution. See 18 U.S.C. §1963(a)(3); 21 U.S.C. §§853, 881. Over time, forfeiture provisions spread throughout the federal criminal code and today a catch-all provision, authorizes—and, for many crimes, mandates—the procedure in connection with crimes involving a financial transaction or fraud. See 18 U.S.C. §982; 21 U.S.C. §853. Nearly any property, tangible or otherwise, can be subject to forfeiture so long as it was “used, or intended to be used” to commit a crime, or “derived from” or “obtained, directly or indirectly” from a crime. 21 U.S.C. §853(a)(1)-(2); see also 18 U.S.C. §982(a).
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