Another hit for civil forfeiture: Honeycutt v. United States, 581 U.S.__ (2017) SCOTUS holds no joint/ several liability under 21 U.S.C. §853.

June 6th, 2017
Elizabeth Franklin-Best

A unanimous opinion by the Court (J. Gorsuch did not partake in the consideration of the case), authored by Justice Sotomayor, the Court holds that 21 U.S.C. §853 does not allow for joint and several liability among co-defendants. This is a very significant holding, and hangs on the distinction between tainted and untainted property. Section 853 applies to “any person” convicted of an enumerated list of serious drug crimes. In three ways, §853 limits the statute’s reach by defining the property subject to forfeiture:  First, it limits forfeiture to “property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” the crime. Also, it restricts it to “property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of” the crime.  And third, it applies to persons “convicted of engaging in a continuing legal enterprise” and requires forfeiture of “property described in paragraphs (1) or (2)” as well as “any of [the defendant’s] interest in, claims against, and property or contractual rights affording a source of control over, the continuing criminal enterprise.”  In other words, only tainted property can be forfeited.

The problem with the government’s argument is that it advocated that all co-defendants in a conspiracy be liable for the full amount of the forfeiture in a particular case. But what if a co-defendant didn’t receive those funds?  In a case like that, the co-defendant would be compelled to surrender his untainted funds to satisfy the full amount of the forfeiture.  That’s precisely what is not allowed under the statute.  And indeed, section 853(p) is the sole provision of the statute that allows the government to try and attach untainted assets, but there are specific conditions that have to be met for that to happen.  The Court understands the §853(p) provision to provide additional support that the government’s position is wrong. And also, Justice Sotomayor returned to the first principles of forfeiture– that it is, historically, an action against the property itself (in rem), and not against the person.  The statutes have modified this somewhat, but as is clear from the language and structure of the statute, §853 maintains traditional in rem forfeiture’s focus on tainted assets unless one of the conditions of §853(p) exists.  Finally, additional sanity in this highly controversial area of the law.

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