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Steven L. KesslerSteven L. Kessler ()

With the enactment of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), Congress sought to steer federal prosecutors to criminal forfeiture by making criminal forfeiture more inclusive and civil forfeiture less attractive.1 Congress believed that the risk of abuse would be reduced because a criminal conviction is required before a defendant’s property can be forfeited in a criminal proceeding.2

Unfortunately, it turned out that greater reliance on criminal forfeiture increased abuses in that area as well. Examples include plea agreements where the criminal defendant purportedly consents to forfeit property that does not belong to him, jeopardizing the rights of innocent third parties,3 and so-called “money judgment forfeitures,” a judge-made loophole that allows the government to forfeit property without satisfying the statutory requirement that the government trace the property sought to be forfeited to the defendant’s criminal activity.4

Another form of criminal forfeiture abuse is the imposition of joint and several liability, a remedy that, like money judgment forfeitures, is not authorized by statute. Indeed, the use of joint and several liability was in some respects an outgrowth of money judgment forfeitures, as the government could simply “pick a number” and then enforce it against every defendant alleged to have been involved in the criminal activity, regardless of the actual proceeds received by any individual defendant.

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