During its 2023-2024 Term, the U.S. Supreme Court allowed criminal penalties for people who are homeless; blocked the ATF’s regulation of bump stocks; ended Chevron deference, a landmark doctrine of administrative review; and decided that U.S. presidents are immune from criminal prosecution for core constitutional acts taken during their tenure in office. Criminal defense lawyers will talk about these cases for years to come.

Part I: The Basics

According to the government, the goal of forfeiture is to take the profit out of crime. The government seeks to take private assets – including cash and real property – that it claims constitute the proceeds of criminal activity. Steven L. Kessler discusses some of the basics every attorney should know about forfeiture.

on These Unconstitutional Judicial Punishments?

Courts issue forfeiture money judgments against defendants despite the absence of statutory authority or due process protections. Defense counsel must continue to raise constitutional challenges until the Supreme Court speaks on the issue.

Asset forfeiture – also called “policing for profit” – has come under scrutiny from courts and legislatures. Elliot Abrams provides defense lawyers with recent updates to forfeiture law, primarily focusing on pretrial seizure and attorney’s fees. Courts are taking a hard look at forfeiture and pretrial seizures, and lawyers should continue bringing statutory challenges to actions that appear to violate statutory language or a defendant’s fundamental rights.

The city of Albuquerque seized Arlene Harjo’s car after her son borrowed it and was arrested for DUI. Her case shows that a forfeiture statute may appear constitutional on its face but, in actuality, may provide improper financial incentives to prosecutors and police to seize citizens’ property for their own or their organization’s benefit. The Harjo case offers lessons on how to successfully mount a due process challenge to forfeiture statutes.

Forfeiture reform is long overdue. The Fifth Amendment Integrity Restoration (FAIR) Act would raise the level of proof required to seize property to the more reasonable standard of “clear and convincing evidence,” which would help protect property owners.

The dictionary defines “forfeiture” as the loss of property or money due to the breach of a legal obligation. This is the part of a client’s sentencing that turns some criminal defense attorneys into frightened first-year law students. Many inform the client to “let the property go” or to retain someone later to deal with the issue. Steven L. Kessler discusses some of the basics every attorney should know about forfeiture. He also examines the recent Supreme Court decision in Honeycutt v. United States and its possible ramifications.

Five Important Words on Fee Forfeiture: Getting It Up Front and Getting It In the End Barry Tarlow

Attorney Fees and Government Forfeiture