Sucoff: From The Courthouse To The Police Station

SUCOFF - FINAL (DO NOT DELETE)
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Notes
From the Courthouse to the Police
Station: Combating the Dual Biases That
Surround Federal Money-Laundering
Asset Forfeiture
OWEN SUCOFF*
ABSTRACT
The money-laundering asset forfeiture laws were enacted during the

height of Congresss two-decade fight against the financial underpinnings
of organized crime and the drug trade and represent the farthest-reaching
provisions of their kind. They provide for the forfeiture of all property
involved in an offense, a definition that includes anything which makes
a laundering offense either harder to detect or easier to commit.
Despite being a powerful tool in the legitimate fight against crime,
laundering forfeitures broad reach brings serious risks of abuse, and
institutional biases favoring increased forfeiture have developed in both
the courtroom and the police station. An expansive interpretation of the
involved in language combines with both the limited utility of the
Excessive Fines Clause and a complete lack of judicial discretion on the
part of sentencing judges to create a judicial bias in favor of forfeiture. A
similar enforcement bias, borne from the Department of Justices policy
of using forfeiture as a revenue generator, encourages law enforcement
agencies to increase both the magnitude and quantity of forfeitures.
This Note argues that recurring abuse of the forfeiture power can only
be prevented through a combination of two major reforms: (1) amendment
Candidate for Juris Doctor, New England Law | Boston (2012). B.A., Public Policy,
Vanderbilt University (2007). I would like to thank my father, who encouraged me to work
through the pain, and my mother, who was always there when I wasnt able to.
*
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of the money-laundering-forfeiture statute to include a proportionality

requirement fashioned after the Excessive Fines Clause; and (2) alteration
of the equitable-sharing disbursement program to eliminate the profit
incentives encouraging increased forfeitures.
INTRODUCTION
hoever first said crime doesnt pay was lying.1 A decade

ago, the Internal Revenue Service estimated that the United
States illegal drug trade alone accounts for fifty billion
dollars per year.2 With an eye towards reducing that figure, Congress, in
the 1970s, passed the first of the modern regime of forfeiture statutes.3
These laws provided the Government with the tools to pursue a new
enforcement strategy that would strike at the core of the criminal
undergroundits economic underpinnings.4 Disappointed with the early
lack of results, Congress undertook a two-decade expansion of federal
forfeiture law, gradually extending the reach of the statutes in an attempt
to increase mass forfeitures.5 The money-laundering-forfeiture provisions
were among those extensions and, by allowing forfeiture of all property
involved in an offense, represent perhaps the farthest reaching of all
their kind.6
Though a powerful tool in the legitimate fight against crime, the
operative framework that evolved around the money-laundering-forfeiture
statute brings serious risks of abuse, and institutional biases favoring
increased forfeiture have developed in both the courtroom and the police
station.7 An expansively broad interpretation of the involved in language
allows for the forfeiture of assets loosely connected to an offense as being
used to facilitate crimea category encompassing property far in advance
of a laymans understanding of facilitation.8 Assisting this reach is the
statutes exhaustive list of predicate crimes, whose proceeds, when
transferred, trigger the application of the accompanying forfeiture
1
CAMBRIDGE INTERNATIONAL DICTIONARY OF IDIOMS 84 (1998).

Ann Jennings Maron, Comment, Is the Excessive Fines Clause Excessively Kind to Money
Launderers, Drug Dealers, and Tax Evaders?, 33 J. MARSHALL L. REV. 243, 243 (1999).
2
3 James Bovard, Seizure Fever: The War on Property Rights, 46 THE FREEMAN: IDEAS ON
LIBERTY, Jan. 1996, at 6, 6.
4
B. FREDERIC WILLIAMS, JR. & FRANK D. WHITNEY, FEDERAL MONEY LAUNDERING: CRIMES
11.3, at 385-86 (1999).
5 See id. at 385-87.
6 See 18 U.S.C. 981 (2006); 18 U.S.C. 982 (2006 & Supp. III 2010).
7 See infra Part III.
8 See United States v. 38 Whalers Cove Drive, 954 F.2d 29, 33 (2d Cir. 1992) (upholding
forfeiture of a condo worth $145,000 on the strength of two cocaine sales totaling $250).
AND FORFEITURES
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provisions to nearly every crime imaginable. 9 The extremely limited utility

of the Excessive Fines Clausethe only constitutional protection for
forfeiture defendantsdoes little to alleviate the risks.10 Prohibiting
grossly disproportionate forfeitures in theory, the only Supreme Court
exploration of the Clause in over two hundred years severely limited its
application, and lower courts have proven to be adept at finding seizures
reasonable.11 These tenets of forfeiture jurisprudence combine with
sentencing judges complete lack of forfeiture discretion to create a heavy
judicial bias against defendants and in favor of forfeiture.12
But offenders have more to worry about than institutional judicial
prejudice; the law enforcement machines deck is stacked against them
also.13 The enforcement bias begins with the Department of Justice (the
Department) policy that pursues revenue generation as a substantial goal
of forfeiture.14 In furtherance of this policy, the Department has created a
disbursement system designed to pad both state and federal agency
budgets with the proceeds from forfeited asset sales. 15 This profit incentive
encourages law enforcement agencies to increase the quantity and
magnitude of forfeitures, resulting in considerable abuse of the system.16
This Note will argue that recurring abuse of the forfeiture power can only
be prevented through a combination of two major reforms: (1) amendment
of the money-laundering-forfeiture statute to lessen its expansive reach by
including a proportionality requirement; and (2) alteration of the equitablesharing disbursement program to eliminate the profit incentives
encouraging increased forfeitures.17
Part I will outline the basic operation of the money-laundering statutes
and the history and congressional climate surrounding their enactment. It
will then explore the extent to which the laundering-forfeiture statute
See 18 U.S.C. 1956(c)(7) (2006 & Supp. III 2010).

See U.S. CONST. amend. VIII.
11 See United States v. Bajakajian, 524 U.S. 321, 337 (1998); infra note 122 and accompanying
text.
10
12
See 18 U.S.C. 982(a)(1) (2006) (using the mandatory phrase shall order . . . forfeit in
response to judges role in forfeiture sentencing); see also 13 FEDERAL PROCEDURE, LAWYERS
EDITION 35:786, at 587 (2006).
13 See infra Part III.B.
14 See MARIAN R. WILLIAMS ET AL., INST. FOR JUSTICE, POLICING FOR PROFIT: THE ABUSE OF
CIVIL ASSET FORFEITURE 25 (2010), available at http://www.ij.org/images/pdf_folder/
other_pubs/assetforfeituretoemail.pdf.
15
See ASSET FORFEITURE AND MONEY LAUNDERING SECTION, U.S. DEPT OF JUSTICE, ASSET
FORFEITURE POLICY MANUAL 127 (2008) [hereinafter ASSET FORFEITURE POLICY MANUAL].
16 See id.; Radley Balko, The Forfeiture Racket, REASON, Feb. 2010, at 33, 34; Bovard, supra
note 3, at 9-10.
17
See infra Part IV.
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reaches a defendants property. Part II will discuss the minimal protection

against excessive forfeitures that the Eighth Amendment provides
defendants. Part III will explore how current Department policies
regarding forfeiture procedure and disbursement of seized assets create
strong profit incentives in forfeiture, and how they open the door for
federal and state abuse of the statute. It will then explore some examples of
past abuse, before discussing how previous attempts at reform have fallen
short. Part IV will propose that future prevention of past abuses can only
be achieved by jointly addressing the flaws inherent in the forfeiture
system: the statutes lack of proportionality and the incentive-laden law
enforcement apparatus through which forfeiture is pursued.
I.
The Money-Laundering Offenses and Their Subsequent Forfeitures

A. What Is Money Laundering?
In its most simple form, money laundering is the process used by a

successful criminal to legitimize his illicit wealth. 18 In a basic laundering
scheme, the proceeds of a separate criminal offense are transferred in such
a way as to conceal their source, confuse or break the money trail, and
return them to the offender safe for general use.19 This conception of money
laundering reflects the popular, traditional understanding of the term, and
embodies the belief of key Senators involved with the passage of the
original Money Laundering Control Act of 1986.20 Traditional money
laundering is covered by 1956 and 1957 of Title 18 of the U.S. Code,
which broadly prohibits all financial transaction[s] involving the
proceeds of specified unlawful activity (SUA).21 Included within the
sections definitions is a thorough list of SUAs that, for all intents and
18
WILLIAMS & WHITNEY, supra note 4, 1.1, at 4.

See JIMMY GURUL & SANDRA GUERRA, THE LAW OF ASSET FORFEITURE 7-3(a), at 204-05
(1998).
19
20 See 132 CONG. REC. 17,571 (1986) (statement of Sen. Joseph Biden) (Money laundering is
the process by which the proceeds of crime are disguised to appear legitimate, using ordinary
and not-so-ordinary financial transactions.); id. at 18,487 (statement of Sen. Orrin Hatch)
(Money laundering is the process by which one conceals the existence, illegal source, or
illegal application of income and camouflages the source of that income to make it appear
legitimate.).
21 18 U.S.C. 1956-1957 (2006 & Supp. III 2010). Notably, federal money-laundering law
reaches a number of activities that exist outside of this traditional understanding, such as
currency reporting requirements and bulk-cash smuggling. However, this Note is
predominantly concerned with the traditional money-laundering actions covered by
1956 and 1957. See 31 U.S.C. 5313(a) (2006) (requiring banks to file reports for all cash
transactions in excess of the amount prescribed by the Secretary of Treasury); 31 U.S.C.
5332(a) (2006) (criminalizing the unreported personal transfer of cash in excess of $10,000 into
or out of the United States).
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purposes, covers every potential criminal act that might yield some
property to forfeit.22 These SUAs are prerequisites to money-laundering
offenses, and they enable prosecutors to apply the unusual breadth of
laundering forfeiture to a huge number of circumstances where forfeiture
was not previously allowed.23
The statute contemplates two major forms of money laundering: (1) the
use of criminal proceeds towards the further commission of crime;24 and (2)
the transfer of dirty money in such a way as to make it seem clean.25
Each form of the offense requires the defendant to have both knowledge
that the property involved represents the proceeds of some form of
unlawful activity and intent either to further promote a criminal act or to
conceal those proceeds.26 Section 1956 further criminalizes reverse money
launderingsituations in which clean money is transferred into or out
of the United States to finance dirty activity.27 In this case, the property
transferred need not be the proceeds of an SUA if it is transferred with the
intent to promote a future SUA.28 Finally, 1957 prohibits the transfer of
property derived from an SUA with a value over $10,000, differing from
1956 only in that it lacks an intent requirement; a defendant who spends
$10,001 dirty dollars is guilty, regardless of whether or not he intended
to conceal the proceeds or promote a further SUA. 29
B. A Brief History of Forfeiture Law and the Development of the
Money-Laundering-Forfeiture Statutes
The basic principles of forfeiture law are deeply rooted in AngloAmerican legal history.30 The first historical example of civil asset forfeiture
22 18 U.S.C. 1956(c)(7). (Two criminal acts notably absent are tax evasion and foreign
fraud offenses. Stefan D. Cassella, The Forfeiture of Property Involved in Money Laundering
Offenses, 7 BUFF. CRIM. L. REV. 583, 612 (2004).
23
See Cassella, supra note 22, at 618-19.

18 U.S.C. 1956(a)(1)(A)(i). This type of activity is known as promotional money
laundering. WILLIAMS & WHITNEY, supra note 4, 5.1.4, at 134.
24
25 18 U.S.C. 1956(a)(1)(B)(i) (concerning transactions designed to disguise the nature, the

location, the source, the ownership, or the control of proceeds of specified unlawful activity).
This type of activity is known as concealment money laundering. WILLIAMS & WHITNEY,
supra note 4, 5.1.6.1, at 152.
26
18 U.S.C. 1956(a)(1).
See id. 1956(a)(2)(A); Cassella, supra note 22, at 613.
28 Cassella, supra note 22, at 613.
29 18 U.S.C. 1957(c) (2006); see GURUL & GUERRA, supra note 19, 7-3(a), at 204-05.
30 See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-83 (1974) (tracing the
history of forfeiture law from English common law to the present); Eric Moores, Note,
Reforming the Civil Asset Forfeiture Reform Act, 51 ARIZ. L. REV. 777, 780-82 (2009).
27
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was the deodand.31 The King, upon the death of one of his subjects,
would be granted the value of the object that caused the deaththe worth
of the sword that caused the killing blow, for example. 32 Though originally
based on religious tenets, the practice soon shirked that connotation and
became a source of Crown revenue, instituted as a penalty for
carelessness.33 Early English law also provided for criminal forfeitures
resulting from felony or treason convictions, punishing those who
offended the Kings peace.34 The power of forfeiture as a revenue
generating tool was not lost in transition, and in its first hundred years,
over 80% of the United Statess revenues were raised from common law
forfeitures premised on Englands admiralty laws.35
Despite this deep tradition, major moves to create a modern statutory
forfeiture scheme did not come until 1970 with the passage of the
Continuing Criminal Enterprise Act36 and the Racketeer Influenced and
Corrupt Organizations Act.37 In the fifteen years following, disappointment
with the infrequency and low magnitude of federal forfeitures spurred
Congress to repeatedly expand the scope of existing forfeiture provisions
to reach as much property as possible.38 In 1986, as part of this expansion
and in coordination with the Money Laundering Control Act, Congress
enacted the general asset forfeiture provisions that apply to moneylaundering offenses, codified at 981 and 982 of Title 18 of the U.S.
Code.39
C. The Congressional Climate Surrounding the Laundering and
Forfeiture Statutes
Sections 981 and 982 were put into effect in the midst of a tide of
congressional action aimed at expanding the use of forfeiture as a tool to
attack the economic aspects of drug trafficking and racketeering. 40 There
31
See Calero-Toledo, 416 U.S. at 680-81.

Id. at 681.
33 Id.
34 Id. at 682 (The convicted felon forfeited his chattels to the Crown and his lands
escheated to his lord; the convicted traitor forfeited all of his property, real and personal, to
the Crown.).
32
35
Maron, supra note 2, at 247 & n.30.

Pub. L. No. 91-513, 84 Stat. 1265 (codified as amended at 21 U.S.C. 848 (2006)).
37 Pub. L. No. 91-452, 84 Stat. 941-44, 901(a) (codified as amended at 18 U.S.C. 1961-68
(2006 & Supp. II 2009)).
36
38
See Moores, supra note 30, at 781-82.

See 18 U.S.C. 981 (2006) (civil forfeiture); 18 U.S.C. 982 (2006) (criminal forfeiture);
WILLIAMS & WHITNEY, supra note 4, 1.8, at 16; Cassella, supra note 22, at 614.
40 See WILLIAMS & WHITNEY, supra note 4, 11.3, at 385-87; see also S. REP. NO. 98-225, at 91
(1984), reprinted in 1984 U.S.C.C.A.N. (98 Stat.) 3182, 3374 (intending to provide authority
39
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was strong bipartisan support for this expansion of forfeiture authority,

and Congress emphasized its disappointment in the use of the new power
up to that pointit had expected the seizure of a far greater amount of
drug trafficking profits.41 Just prior to passage of the laundering-forfeiture
provisions, the drug-forfeiture statute was characterized as telling the
courts to take the broadest possible view of what property is subject to
confiscation.42 Congresss intent for the statute to reach as far as possible is
reflected by commentary that was proposed for inclusion during the
debate.43 It would have explicitly allowed for the seizure of the broadest
possible range of profits and property controlled by drug traffickers.44
D. Property Subject to Forfeiture Under the Money-Laundering Statute
Sections 981 and 982 provide for the civil and criminal forfeiture,
respectively, of any property involved in a violation of the newly
codified laundering offenses.45 Furthermore, if any of that involved
property is sold, transformed, or transferred, then any property traceable
to such property is also forfeitable.46 Courts in seven circuits have
interpreted the phrase involved in broadly, as reaching beyond the
actual property being laundered to commissions and fees paid to the
launderer, as well as any other property facilitating the offense; 47 no circuit
designed to strip *criminal organizations+ of their economic power, and noting that forfeiture
is the mechanism through which these attacks should be made).
41
S. REP. NO. 98-225, at 91; see WILLIAMS & WHITNEY, supra note 4, 11.3, at 386.
WILLIAMS & WHITNEY, supra note 4, 11.3, at 386 (quoting 130 CONG. REC. 29,697 (1984)
(statement of Senator DAmato)).
42
43
See id.
Id. at 386 n.23.
45 See 18 U.S.C. 981(a)(1)(A), 982(a)(1) (2006). Courts interpret the language of the two
provisions identically and often rely on precedent concerning one to interpret the other. See
United States v. Tencer, 107 F.3d 1120, 1134 n.5 (5th Cir. 1997). Additionally, the drugforfeiture statute also employs the involved in standard, 21 U.S.C. 853 (2006), and courts
rely on cases interpreting 853 in their discussions of 981 and 982. See United States v.
Myers, 21 F.3d 826, 829 & n.3 (8th Cir. 1994) (noting that the language of the moneylaundering statutes is very similar to that of 853 and deciding the issue on drug forfeiture
precedent); WILLIAMS & WHITNEY, supra note 4, 11.7.3, at 395 (tracing the courts use of 853
as applied to the money-laundering provisions). Note also that any property subject to civil
forfeiture is also subject to criminal forfeiture. See 28 U.S.C. 2461(c) (2006).
44
46
18 U.S.C. 981(a)(1)(A), 982(a)(1); WILLIAMS & WHITNEY, supra note 4, 11.1, at 382.
See United States v. Puche, 350 F.3d 1137, 1153 (11th Cir. 2003) (affirming judgment on
facilitation grounds); United States v. McGauley, 279 F.3d 62, 76 n.14 (1st Cir. 2002) (following
Bornfield, Tencer, and Baker, and citing legislative history); United States v. Baker, 227 F.3d 955,
967-68 (7th Cir. 2000) (stating that all real and personal property used to commit the moneylaundering offense is subject to forfeiture as property involved in the offense); United States
v. Wyly, 193 F.3d 289, 302 (5th Cir. 1999) (affirming judgment on facilitation grounds); United
47
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has shown any indication of ruling to the contrary. 48 Consequently,

forfeitable property can be characterized in one of four ways, each of which
is contoured by the wide berth courts grant to the statute: 1) the proceeds
of the SUA offense being laundered; 2) property other than the SUA
proceeds which is also part of the subject matter of the money laundering
offense; 3) property used to facilitate the money laundering offense; and 4)
property . . . involved in, or used to commit, the SUA offense.49
1.
Proceeds of the Specified Unlawful Activity
Determining what property constitutes proceeds of an SUA offense

rests on a fairly straightforward principleif the laundered property was
obtained as a result of the SUA, it is forfeitable. 50 Where an offender steals
$57,000, and deposits $23,000 of it into his wifes bank account, that $23,000
constitutes the proceeds of the SUA that were involved in the moneylaundering offense.51 Courts have also held that it is appropriate to forfeit
proceeds of the SUA that the defendant attempted or conspired to launder,
even if the act was not completed.52
2.
Subject Matter of the Laundering Transaction
Property other than SUA proceeds comprising the subject matter of a

laundering transaction is generally either the clean money in a reverselaundering offense or the subject of a purchase, sale, or exchange
intended to clean the money being paid.53 This segment of forfeitable
property is the other side of the laundering transaction.54 Where an
States v. Matai, Nos. 97-4129, 97-4130, 1999 WL 61913, at *5 (4th Cir. Feb. 10, 1999) (per
curiam) (affirming judgment on facilitation grounds); United States v. Bornfield, 145 F.3d
1123, 1135 (10th Cir. 1998) (following Tencer); United States v. Hawkey, 148 F.3d 920, 927-28
(8th Cir. 1998) (following Bornfield and Tencer); see also Smith v. United States, 508 U.S. 223, 235
(1993) (acknowledging involved in as an expansive statutory term, and holding that a gun
could be involved in an offense despite its not being used during commission); Cassella, supra
note 22, at 615 & n.80 (collecting aforementioned circuit cases).
48
Cassella, supra note 22, at 615.

Id. at 615-16.
50 Id. at 616-17.
51 See United States v. Trost, 152 F.3d 715, 721 (7th Cir. 1998).
52 See United States v. Hasson, 333 F.3d 1264, 1279 (11th Cir. 2003) (holding that forfeiture
for money-laundering conspiracy includes the amount derived from uncharged conduct and
conduct on which defendant may have been acquitted); United States v. $15,270,885.69
Formerly on Deposit in Account No. 8900261137, No. 99 Civ. 10255(RCC), 2000 WL 1234593,
at *4 (S.D.N.Y. Aug. 31, 2000) (holding that money in a bank account can be forfeited as
property involved in an attempt to commit money laundering).
49
53
54
Cassella, supra note 22, at 620.

See id.
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offender misappropriates $140,000 and uses it to purchase a motor home,

the motor home is part of the subject matter of the laundering offense, even
though it is not a proceed of the SUA.55 Clearly, however, the motor home
is involved in the laundering transaction.56 An important upshot of this
reasoning is that the proceeds generated by the laundering offense do not
act as a limit on the amount of property subject to forfeiture.57 If a gold
dealer exchanges legitimate gold for $700,000 of illegitimate cash, realizing
a profit of $10,000, the entire $700,000 is involved, and the dealer can be
held accountable for its forfeit.58
Commingled propertyotherwise clean property that has been mixed
with dirty propertyhas also repeatedly been found to be part of the
subject matter of a laundering offense. 59 This happens most often where an
offender will deposit dirty money into an account already containing
other clean money.60 In United States v. McGauley, a defendant convicted
of laundering was ordered to forfeit the entire contents of a bank account
almost $50,000of which only $155 was illicit.61 McGauley took $49,497
from a previously existing account, and combined it with the $155 check in
a new one.62 The court upheld the judgment, concluding that there is no de
minimis exception on the forfeiture of legitimate funds commingled with
illegitimate ones.63
Though commingling is commonly seen in connection with fungible
currency, it can also occur with tangible property. 64 If the motor home
offender used the misappropriated funds to finance only half of the
purchase, the entire motor home would still be forfeitable, regardless of the
fact that half of its value was legitimately derived. 65 This is an instructive
55
See United States v. Hawkey, 148 F.3d 920, 928 (8th Cir. 1998).
See WILLIAMS & WHITNEY, supra note 4, 11.5, at 389-90.
57 Cassella, supra note 22, at 629.
58 See United States v. Hendrickson, 22 F.3d 170, 173, 175 (7th Cir. 1994).
59 See United States v. McGauley, 279 F.3d 62, 71 (1st Cir. 2002) (allowing forfeiture of
$49,000, of which only $155 was illicit); United States v. Braxtonbrown-Smith, 278 F.3d 1348,
1352-53 (D.C. Cir. 2002) (finding any withdrawal from a commingled account sufficient to
show money laundering; strict tracing of SUA proceeds through commingled account
impossible); United States v. Wilkinson, 137 F.3d 214, 222 (4th Cir. 1998) (finding that the
government is entitled to presume that funds up to the full amount originally derived from
crime were involved in the transaction).
60 See, e.g., McGauley, 279 F.3d at 71.
61 Id. at 70, 77.
62 Id. at 70.
63 Id. at 71 (denying petitioners theory of a de minimis exception to the amount of
involved funds that must be proceeds of SUA); see also infra Part I.D.3.
56
64
65
GURUL & GUERRA, supra note 19, 7-3(b), at 205.

See United States v. 1700 Duncanville Rd., 90 F. Supp. 2d 737, 739-40, 742 (N.D. Tex.
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example of how the breadth of laundering forfeiture laws can exceed the
actual amount of a defendants transgression.66
3.
Property that Facilitates the Laundering Offense
Property is also subject to forfeiture if it facilitates the commission of a

money-laundering offense. 67 Facilitation theory is much broader than the
proceeds and subject matter theories and allows for forfeiture of any
property that makes the prohibited conduct easier to commit or harder to
detect.68 The standard is not an onerous one and potentially includes any
property external to the transaction itself, provided that it is used in some
way to assist with the commission of the crime. 69 It is through this avenue
of forfeiture that a defendant faces the greatest risk of losing assets far in
excess of his offense.70
A typical example of facilitation theory is the forfeiture of a vehicle
used to transport drugs; however, the threshold is much lower than the
actual transportation of contraband.71 Cars have been found as facilitating
when used simply to transport the dealer to the spot of the sale.72 In one
case, a car was forfeited where the defendants propped the hood up and
2000), affd 250 F.3d 738 (5th Cir. 2001) (holding the entirety of the property forfeitable as
involved in the laundering offense where defendant deposited at least $109,919 of food
stamp fraud proceeds into a commingled account, then used those commingled funds along
with an extra clean $300,000 to purchase a house).
66 See also United States v. One 1987 Mercedes Benz 300E, 820 F. Supp. 248, 252 (E.D. Va.
1993) (holding that where a car payment is made with SUA proceeds, the payment is a
transaction and the entire car is forfeited as involved in the offense regardless of whether
other payments have been made legitimately).
67
18 U.S.C. 981(a)(1)(A) (2006).

United States v. Tencer, 107 F.3d 1120, 1134 (5th Cir. 1997) (Facilitation occurs when the
property makes the prohibited conduct less difficult or more or less free from obstruction or
hindrance. (quoting United States v. Schifferli, 895 F.2d 987, 990 (4th Cir. 1990))). Tencer
defined the term facilitate in the context of the drug-forfeiture statute, however recall that
past interpretations of the drug-forfeiture statute are used to illuminate the meaning of the
laundering-forfeiture statute. See sources cited supra note 45.
69 See WILLIAMS & WHITNEY, supra note 4, 11.7.1, at 393. But see Cassella, supra note 22, at
642-43 (noting that some courts employ a substantial connection requirement and have
disallowed forfeiture on grounds that the connection between the property and the offense
was too incidental).
70 Compare United States v. Wyly, 193 F.3d 289, 303 (5th Cir. 1999) (using facilitation theory
to uphold the forfeiture of a $4 million business against the laundering of $175,000), with
United States v. Trost, 152 F.3d 715, 721 (7th Cir. 1998) (ordering the forfeiture of $57,000, the
amount illegally procured, rather than the entire amount transferred through the account).
71 See WILLIAMS & WHITNEY, supra note 4, 11.7.3, at 395.
72 See, e.g., United States v. One Lot of U.S. Currency ($68,000), 927 F.2d 30, 31 (1st Cir.
1992).
68
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leaned behind it while negotiating as if checking the engine. 73 One example

of the far reach of facilitation-based forfeiture is United States v. Rivera.74
Rivera sold heroin out of his horse ranch, and the court allowed the
forfeiture of a herd of horses stabled on the ranch. 75 The horses facilitated
the drug operation, according to the court, by making the ranch appear
legitimate and by providing Rivera the opportunity to use horse-related
terminology as code for drugs. 76 In a similar fashion, the clean money in
an account containing commingled funds is also subject to forfeiture under
facilitation theoryif the funds are pooled to disguise the nature and the
source of the scheme, they make the offense more difficult to detect solely
by existing in the account.77
4.
Property Central to the Offense That Is Not Directly

Involved in the Laundering Transaction
The final category of property forfeitable in a money-laundering

offense is property central to or closely connected with the underlying
criminal scheme, though not necessarily directly involved in the
laundering itself.78 In United States v. Wyly, Wyly colluded with Rinicker, a
public official in charge of contracting out the construction and operation
of a new, privately owned county jail.79 In return for secret kickbacks
amounting to a 30% share of the prison profits, Rinicker arranged for the
Sheriffs office to lease the prison that Wyly would construct. 80 After
securing a money-laundering conviction, the Government sought forfeiture
of the public money paid to the contractor, the kickback money paid to
Rinicker, and the newly constructed jail itself.81 The money Wyly was paid
for his work was derived via bribery (the SUA) and was forfeitable as
proceeds of the SUA.82 Similarly, the kickback payments paid by Wyly
were forfeitable as part of the subject matter of the laundering transaction. 83
73
United States v. One 1977 Lincoln Mark V. Coupe, 643 F.2d 154, 157 (3d Cir. 1981).
884 F.2d 544 (11th Cir. 1989).
75 Id. at 546.
76 Id.
77 See United States v. Tencer, 107 F.3d 1120, 1135 (5th Cir. 1997); see also United States v.
Bornfield, 145 F.3d 1123, 1134 (10th Cir. 1998) (holding that forfeiture of clean funds is
appropriate if government shows that defendant pooled the funds to aid the laundering
transaction); GURUL & GUERRA, supra note 19, 7-3(b), at 205.
74
78
79
80
81
82
83
GURUL & GUERRA, supra note 19, 7-3(b), at 205.

United States v. Wyly, 193 F.3d 289, 292 (5th Cir. 1999).
Id.
Id. at 293, 302.
Id. at 302 (*Defendants+ other forfeited property is forfeitable as proceeds.).
Id. at 293; see also supra Part I.D.2.
104
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But the jail itself was neither the subject matter of the transaction, in the
sense that it was part of the exchange, nor did it facilitate the laundering in
the traditional sense, by making the crime easier to commit or harder to
detect.84 Even still, the court applied facilitation theory, ruling that the
prison[] was the source of the criminal proceeds and was indispensible to
the money-laundering conspiracy. Without the prison, there could have
been no bribery . . . or money laundering.85 The substantial nexus that
the jail shared with the underlying crimes demanded that it be included
within the forfeiture order.86
E. Judicial Discretion and Standards of ProofSome Basic Forfeiture
Procedures
The procedures connected to the forfeiture process only serve to
strengthen the apparent inevitability of the forfeiture of property having
only a loose connection to a laundering offense. 87 Primarily, the sentencing
judge is afforded no discretion regarding the approval of forfeiture. 88 If,
after hearing the judges explanation of the forfeiture statute, the jury finds
the involved in standard to be satisfied, the judge must order the
property forfeited.89 This lack of input stands in stark contrast to a judges
role during the rest of the sentencing process, in which he personally
determines a sentence consisting of a combination of imprisonment,
probation, and treatment, among other things. 90 Indeed, the Supreme Court
recently invalidated a provision of the federal sentencing laws that
required judges to adopt a specific sentence set forth in the U.S. Sentencing
Guidelines.91 Nevertheless, there is no dispute that the sentencing judge
84
See Cassella, supra note 22, at 657.

Wyly, 193 F.3d at 302.
86 See id.
87 See 18 U.S.C. 982(a)(1) (2006) (mandating judges to order forfeiture if property is found
to be involved in the offense); John L. Worrall, The Civil Asset Forfeiture Reform Act of 2000: A
Sheep in Wolfs Clothing?, 27 POLICING: INTL J. POLICE STRATEGIES & MGMT. 220, 225 (2004)
(detailing standards of proof).
88 18 U.S.C. 982(a)(1) (The court, in imposing sentence . . . shall order that the person
forfeit . . . any property . . . involved in *the+ offense.) (emphasis added); 13 FEDERAL
PROCEDURE, supra note 12, 35:786, at 587; cf. 31 U.S.C. 5332 (2006) (containing the moneylaundering forfeiture provision for bulk cash smuggling added by the USA PATRIOT Act,
which likewise uses the word shall).
85
89 See sources cited supra note 88. However, defendants who are subject to forfeiture are
not completely without recourse, and the Eighth Amendments (limited) protection for those
seeking to prevent the forfeit of their assets is discussed later. See infra Part II.
90 See 18 U.S.C. 3582(a) (2006).
91 United States v. Booker, 543 U.S. 220, 233-37 (2005) (invalidating the mandatory nature
of the Sentencing Guideliness sentencing ranges as violating the Sixth Amendment right to
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105
has no option or discretion concerning the forfeiture of property

involved in a laundering offense.92
The standard of proof that the government must show under the
federal statute varies between seizures and forfeitures.93 To allow for the
seizure of property, the seizing agent must obtain a warrant based on a
judicial determination of probable cause that the terms of the forfeiture
statute, criminal or civil, have been satisfied.94 To allow for the forfeiture of
property, the agent must show that the same property satisfies the statute,
but by a preponderance of the evidence.95 The standard of proof required
of state agents is typically even less, allowing seizure upon reasonable
suspicion and forfeiture upon probable cause. 96
II. The Eighth Amendments Excessive Fines Clause Provides
Defendants with Limited Protection Against Unreasonable
Forfeitures.
Having seen the almost unlimited reach of the laundering forfeiture
statutes, concerns are rightfully raised about how aggressively the
Government might employ them.97 These concerns are somewhat
alleviated by the constitutional check on this broad reach: the Eighth
Amendments Excessive Fines Clause.98
The Eighth Amendment to the U.S. Constitution mandates that
[e]xcessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.99 Of those three clauses, the one
barring the imposition of excessive fines has received the least amount of
a jury trial, and imparting upon sentencing judges the discretion to depart from those ranges).
92 Cf. Mark A. Rush & Heather Hackett, USA PATRIOT ActMoney Laundering and
Asset Forfeiture 19 (Dec. 13, 2001), available at http://www.klgates.com/files/ Publication/
d6611cd7-df27-43a7-be9a-7c874cee170d/Presentation/PublicationAttachment/89ca6905-002a4150-93a1-3b3066a5c601/assetforfeiture.pdf (The sentencing judge has no option or discretion
concerning the forfeiture of funds involved in bulk cash smuggling.).
93 Note that a seizure is the initial confiscation of property by a law enforcement officer
for detainment pending a forfeiture determination. See BLACKS LAW DICTIONARY 1480-81 (9th
ed. 2009); Worrall, supra note 87, at 222. A forfeiture is the judicial or administrative act of
transferring title from the original owner to the governmental body pursuing the action.
BLACKS LAW DICTIONARY 722 (9th ed. 2009).
94 ASSET FORFEITURE POLICY MANUAL, supra note 15, at 14.
95 Worrall, supra note 87, at 225.
96 WILLIAMS ET AL., supra note 14, at 22 tbl. 2. These relaxed state standards often carry
heavy implications of joint state-federal abuse of the federal statute. See infra Part III.B.
97
98
99
See supra Part I.D.

U.S. CONST. amend. VIII.
Id.
106
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treatment by the Supreme Court.100 The Courts first foray into its
application of the Clause came in Austin v. United States and its companion
case Alexander v. United States, where the Court held that forfeitures that
served a punitive function were properly considered fines and subject to
Eighth Amendment analysis.101 These cases, however, gave no indication as
to how that analysis should proceed.102
The Court revisited the issue in 1998 in what has become the seminal
case on Eighth Amendment limitations on forfeitures.103 In United States v.
Bajakajian, for the first time, the Supreme Court struck down a forfeiture
order as constitutionally excessive.104 Defendant Bajakajian, upon boarding
an international flight, was found with $357,000.105 Instead of reporting the
sum in accordance with the law, he had tucked it away in his carry-on
luggage.106 The Government sought forfeiture of all $357,000, the District
Court denied the request on Eighth Amendment grounds, and the Ninth
Circuit affirmed.107 The Supreme Court, reacting to the part of the Ninth
Circuits opinion that invalidated a portion of an act of Congress, granted
certiorari and held that a punitive forfeiture is unconstitutionally excessive
when it is grossly disproportional to the gravity of the defendants
offense.108
The context of the case, however, paints an unsure picture of the
standards application to money-laundering forfeitures as a whole.109
100
Id.; see United States v. Bajakajian, 524 U.S. 321, 327 (1998).
Austin v. United States, 509 U.S. 602, 604 (1993); Alexander v. United States, 509 U.S.
544, 559 (1993); see Brant C. Hadaway, Comment, Executive Privateers: A Discussion On Why the
Civil Asset Forfeiture Reform Act Will Not Significantly Reform the Practice of Forfeiture, 55 U.
MIAMI L. REV. 81, 101 (2000).
102 See Cassella, supra note 22, at 640, 652.
103 See Bajakajian, 524 U.S. at 334.
104 Id. at 324.
105 Id. at 334-35.
106 Id.
107 Id. at 325-26.
108 Id. at 327, 336-37. Before confronting the question of whether the forfeiture was
excessive, the Court first had to find that forfeitures were, in fact, fines. See id. at 328. In doing
so, it emphasized the in personam nature of the criminal forfeiture at issue; because the
forfeiture was punitive, it constituted a fine. See id. at 332. Despite this, the Court
acknowledged that civil in rem forfeitures with a partial punitive purpose could also be
considered under the purview of the Eighth Amendment. Id. at 331 n.6. Congress has since
endorsed that view, statutorily extending Eighth Amendment protection to all civil
forfeitures. See 18 U.S.C. 983(g) (2006); see also United States v. Ahmad, 213 F.3d 805, 815 (4th
Cir. 2000) (stating that Bajakajian applies equally to criminal forfeitures and to civil forfeitures
of non-instrumentalities); 2 IAN M. COMISKY ET AL., TAX FRAUD & EVASION 13.04[8][a] (2010).
109 Though its practical application is unclear, there is no dispute that the grossly
disproportional analysis is properly applied to other laundering offenses. See Ahmad, 213
101
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107
Bajakajian involved a failure to report charge110a non-traditional form

of laundering triggered where a traveler fails to declare that he is carrying
$10,000 or more when entering or leaving the country. 111 In finding the
$357,000 fine grossly disproportional, the Court emphasized the fact that
Bajakajians crime was merely a reporting offense and involved no proven
affirmative illegal conduct.112 The money was legally obtained and was
otherwise unrelated to any other illegal activities.113 It was permissible
to transport . . . out of the country so long as he reported it.114
The upshot of using this sort of charge as the threshold for the
excessive fine inquiry is that it sets a very high bar for a showing of
disproportionality.115 The factors the Court relied on in finding the
forfeiture excessive will rarely, if ever, present themselves in more
traditional laundering cases.116 All property subject to traditional
laundering forfeiture, by its definition, is related to some specified
unlawful activity; similarly, to fit the terms of the statutes, that property
must be related in some way to some affirmative illegal conduct. 117 The
implication is that defendants who are convicted of either of the two
traditional money-laundering offenses per se cannot exhibit the factors that
the Supreme Court has identified as indicative of a disproportionate
forfeitureboth require the presence of proceeds of specified unlawful
activity.118 Almost as if in agreement with this impossibility, the Court
distinguished Bajakajian from the class of persons for whom the statute
was . . . designed; [h]e is not a money launderer, a drug trafficker, or a
tax evader.119 As Bajakajians actions technically constituted money
laundering, the Court must have been comparing him to traditional
launderersthose either using criminal proceeds in furtherance of other
crimes or transferring those dirty proceeds so as to make them clean.120
Presumably, a similar forfeiture would not be excessive against a more
F.3d at 814-17 (applying Bajakajian analysis to structured transaction violations).

110
Bajakajian, 524 U.S. at 324.

31 U.S.C. 5316(a)(1)(A) (2006).
112 Bajakajian, 524 U.S. at 337-38.
113 Id. at 337 (The money was the proceeds of legal activity and was to be used to repay a
lawful debt.).
114 Id. at 323.
115 See Melissa A. Rolland, Comment, Forfeiture Law, The Eighth Amendment's Excessive Fines
Clause, and United States v. Bajakajian, 74 NOTRE DAME L. REV. 1371, 1396 (1999).
111
116
117
118
119
120
See id.
18 U.S.C. 1956 (2006).
See id.
See id.
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traditional criminal.121 In accordance with these concerns, Eighth

Amendment challenges to traditional laundering forfeitures have almost
exclusively been dismissed.122
III. The Present Structure of the Asset Forfeiture Apparatus Has Proven
Ripe for Abuse.
The broadly interpreted involved in language, the lack of judicial
discretion, and the low standard of proof required for forfeiture all interact
to create a statutory bias in favor of forfeiture; when combined with the
reluctance of courts to extend Eighth Amendment protection to traditional
laundering forfeitures, this bias becomes a judicial mandate, forcing
defendants to rely solely on prosecutorial discretion to prevent the
unreasonable loss of their property.123 The internal structure of the law
enforcement mechanism, however, indicates that this reliance may be
misplaced.124 Policy manuals and practice guides released by the
Department emphasize revenue collection as a major goal of forfeiture,125
while the federal system for disbursing property seized jointly by state and
federal enforcement teams encourages police forces to extend forfeitures as
far as is legally acceptable.126 Indeed, past abuses of asset forfeiture were so
egregious that reforms passed the House by an overwhelming majority,
121
See id.
See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 668, 690 (1974)
(upholding, against a due process challenge, seizure of an innocent owner's $19,800 yacht
upon which a marijuana cigarette was discovered); United States v. 38 Whalers Cove Drive,
954 F.2d 29, 32, 38-39 (2d Cir. 1992) (finding forfeiture of a $145,000 condo not grossly
disproportionate to the offense, a $250 drug sale, after applying the grossly
disproportionate standard from the Eighth Amendments Cruel and Unusual Punishment
Clause). Forfeiture of the subject matter of a laundering offense is never excessive. See United
States v. Trost, 152 F.3d 715, 721 (7th Cir. 1998); supra note 108 and accompanying text. There
are no cases on record where a court has struck down the forfeiture of commingled funds on
Eighth Amendment grounds. Cassella, supra note 22, at 640. Similarly, facilitation theory
has been a strong repellant to Eighth Amendment challenges. See United States v. Wyly, 193
F.3d 289, 302-04 (5th Cir. 1999) (upholding forfeiture of a $4 million business against the
laundering of $175,000).
122
123
See supra Part I.D-E.

See infra Part III.A-B.
125 See JOHN L. WORRALL, U.S. DEPT OF JUSTICE, PROBLEM-ORIENTED GUIDES FOR POLICE:
RESPONSE GUIDES SERIES NO. 7: ASSET FORFEITURE 2 (2008), available at http://www.
popcenter.org/responses/pdfs/asset_forfeiture.pdf; U.S. DEPT OF JUSTICE ASSET FORFEITURE
PROGRAM, NATIONAL ASSET FORFEITURE STRATEGIC PLAN 2008-2012: TAKING THE PROFIT OUT
OF CRIME 25 (2008) [hereinafter TAKING THE PROFIT OUT OF CRIME], available at
http://www.justice.gov/criminal/afmls/pubs/pdf/strategicplan.pdf.
124
126
WILLIAMS ET AL., supra note 14, at 25.
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109
and the Senate soon after.127 Even still, these reforms failed to mitigate the
substantial profit incentives facing law enforcement offices to maximize
assets forfeited.128
A. Department of Justice Policy and Procedure Is Focused on Revenue
Collection.
The Departments Asset Forfeiture Program (the Program), through
its various subordinate agencies, is responsible not only for setting the
national policies and procedures surrounding the extent and operation of
federal asset forfeiture, but also for providing guidelines for the creation
and operation of new local forfeiture units.129 On its most public forum, its
website, the Program states its mission as employ[ing] asset forfeiture
powers in a manner that enhances public safety and security.130 This
pronouncement notwithstanding, the policies and procedures put forth by
the Program and its subordinates often place revenue collection on equal
footing with the disruption of criminal enterprise and the deterrence of
crime.131 It is not difficult to see the potential for abuse in a system where
the same organization that is responsible for putting operational limits on
forfeiture amounts has a central goal to maximize revenues derived from
those same forfeitures.132
Examples of this doublespeak are numerous: the Departments guide,
designed to aid police forces in founding a new asset forfeiture unit,
encourages them to see the obvious advantage of asset forfeiture[:] . . . its
potential to boost an agencys bottom line.133 In the section titled The
127 Worrall, supra note 87, at 221; see Civil Asset Forfeiture Reform Act of 2000, Pub. L. No.
106-185, 114 Stat. 202.
128
See Balko, supra note 16, at 36.

See ASSET FORFEITURE PROGRAM, U.S. DEPT JUST., http://www.justice.gov/
jmd/afp/index.html (last visited Oct. 27, 2011) [hereinafter ASSET FORFEITURE PROGRAM]. For a
list of subordinate agencies and their particular responsibilities, see Participants and Roles,
ASSET FORFEITURE PROGRAM, U.S. DEPT JUST., http://www.justice.gov/jmd/afp/
05participants/index.htm (last visited Oct. 27, 2011).
130 ASSET FORFEITURE PROGRAM, supra note 129.
131 See WORRALL, supra note 125, at 13-14; TAKING THE PROFIT OUT OF CRIME, supra note 125,
at 25-26.
129
132
See Katherine Baicker & Mireille Jacobson, Finders Keepers: Forfeiture Laws, Policing
Incentives, and Local Budgets, 91 J. PUB. ECON. 2113, 2130 (2007) (When we consider the . . .
incentives faced by police, we see that arrests increase substantially when police get to keep
more of the proceeds.); WILLIAMS ET AL., supra note 14, at 20 (*T+here is evidence that
prosecutorial discretion has been inappropriately influenced by the presence of asset
forfeiture options.); Worrall, supra note 87, at 227.
133 WORRALL, supra note 125, at 14.; see Joseph Petrocelli, Asset Forfeiture: You Can Use
Criminals Ill-Gotten Gains to Help Fund Your Departments War On Crime, POLICE: THE LAW
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Need for Forfeiture, it discusses shrinking budgets and expensive and

time consuming police work at length, mentioning its use as an
enforcement tool only in passing.134 Combating the drug trade is likewise
mentioned incidentally.135 Further on, it warns the would-be asset-seizer
that if budget-setting authorities catch wind of forfeiture success, the
local government may reduce the offices budgetary allocation, expecting it
to make up the difference with seizures. 136 Not only does this practical
discussion encourage the use of forfeitures to fund police activity, it also
anticipates the feedback loop that results in an increasing amount of
seizures and essentially cautions fledgling forfeiture agents not to be too
public about their revenue successes. 137
The
budget-shoring
focus
present
in
the
Departments
recommendations to local start-up agencies might be understood as a
practical response to a small police force lacking the resources to effectively
maintain a forfeiture unit; this handicap, however, does not translate as
well to the Program itself.138 Yet the Programs major policy document, the
National Asset Forfeiture Strategic Plan (the Strategic Plan), exhibits the
same perspective.139 Developed over two years by representatives from
every agency participating in the Program, the Strategic Plan was an
opportunity for the entire asset forfeiture community to speak with one
unified voice to enhance and coordinate the use of this critical law
enforcement tool: forfeiture.140 And in that unified voice, the Program
declared that it would, as a priority tactic, seek waivers to allow the use
of money from the Assets Forfeiture Fund (the Fund)141 to pay the
ENFORCEMENT MAGAZINE, Feb. 2010, at 22, 22 (Where can [you] find the funds necessary . . .
? One answer is to take the funds from the criminals.).
134 Id. at 2 (Though it is an enforcement tool, asset forfeiture can assist in the budgeting
realm by helping to offset the costs associated with fighting crime.).
135 Id.
136 Id. at 16-17.
137 See Baicker & Jacobson, supra note 132, at 2124-25, 2128-29 (examining empirically the
amount that local counties offset police seizures by reducing police budgets).
138
See Petrocelli, supra note 133, at 22 (suggesting forfeiture as a solution to smaller police
budgets and increased societal demands on police). Compare Baicker & Jacobson, supra note
132, at 2122 tbl. 1, 2123 (noting that local county budgets are only $55 per capita), with AUDIT
DIVISION, U.S. DEPT OF JUSTICE, ASSETS FORFEITURE FUND AND SEIZED ASSET DEPOSIT FUND
ANNUAL FINANCIAL STATEMENTS FISCAL YEAR 2010, at 7, 8 (2011) available at http://
www.justice.gov/jmd/afp/01programaudit/fy2010-afs-rpt.pdf (noting that the Asset Forfeiture
Fund enjoys a budget of over $2.4 billion).
139
140
141
TAKING THE PROFIT OUT OF CRIME, supra note 125, at 25-26.

Id. at 3, 5.
The Fund was established to receive the proceeds of forfeiture and to pay any
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111
salaries of those working for the Program.142

B. The Equitable-Sharing Disbursement Program Creates a Large Profit
Incentive to Maximize Seizures.
As Department policies of revenue generation push federal actors
towards larger forfeitures, the federal-state system for disbursement of
seized assets pushes state actors likewise.143 This equitable sharing
system was established in 1984 with the passage of the Comprehensive
Crime Control Act and allows for the value of assets seized by federal
agents to be shared with any state or local agencies that participate in the
arrest, provided that the shared funds are used for law enforcement
purposes only.144 State agents participating in a joint investigative
forfeiturein which both state and federal agents concurrently investigate
a crimeare eligible to receive a percentage of the assets value in
proportion with the number of man-hours they contributed.145
It is with adoptive forfeitures, however, that the full magnitude of
the equitable-sharing profit incentive blossomed.146 Under the adoptiveforfeiture framework, a state agencyhaving fully completed an
investigation, arrest, and seizurecan turn both the case and the seized
assets over to an appropriate federal agency.147 The federal agency will
associated costs, including the costs of managing and disposing of property, satisfying valid
liens, mortgages, and other innocent owner claims, and costs associated with accomplishing
the legal forfeiture of the property. The Fund, ASSET FORFEITURE PROGRAM, U.S. DEPT OF
JUSTICE, http://www.justice.gov/jmd/afp/02fundreport/02_2.html (last updated Aug. 2011).
Money from the Fund can properly be used to pay any necessary expenses associated with
forfeiture operations such as property seizure, detention, management, forfeiture, and
disposal. Id. The Fund may also be used to finance certain general investigative expenses.
Id.
142 TAKING THE PROFIT OUT OF CRIME, supra note 125, at 25-26. For perspective, other
priority tactics included: making effective use of forfeiture in terrorism cases and using
forfeiture to recover victims assets. Id. at 41-42.
143
See WILLIAMS ET AL., supra note 14, at 25; Petrocelli, supra note 133, at 22.
Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug Wars Hidden Economic
Agenda, 65 U. CHI. L. REV. 35, 50-51 & n.62 (1998); see ASSET FORFEITURE POLICY MANUAL, supra
note 15, at 127 (Equitable sharing is the process by which state and local law enforcement
agencies can recover federally forfeited assets, or the proceeds from the sales of those assets . .
. .); ASSET FORFEITURE & MONEY LAUNDERING SECTION, U.S. DEPT OF JUSTICE, GUIDE TO
EQUITABLE SHARING FOR STATE AND LOCAL LAW ENFORCEMENT AGENCIES 16-18 (2009)
[hereinafter GUIDE TO EQUITABLE SHARING FOR STATE AND LOCAL LAW ENFORCEMENT
AGENCIES] (listing all proper uses for shared funds).
145 WILLIAMS ET AL., supra note 14, at 25.
146 See Worrall, supra note 87, at 227.
147 WILLIAMS ET AL., supra note 14, at 25; see also ASSET FORFEITURE POLICY MANUAL, supra
note 15, at 33-34.
144
112
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handle the case and, if successful, can transfer up to 80% of the assets
value back over to the original state agency. 148 The true economic value of
this system to the law enforcement community becomes apparent when
viewed in the context of state regulations that earmark forfeiture proceeds
for non-law enforcement purposes.149 By filing for an adoptive forfeiture,
local police departments can skirt these state mandates and escape with up
to 80% of their forfeiture, a much greater percentage than typically allowed
under state law; by that same token, the Department can receive a 20%
share or more while expending minimal investigative or law enforcement
resources.150 Furthermore, by bringing the cases into federal court, federal
prosecutors can unlock the long reach of the money-laundering-forfeiture
statutes, potentially subjecting the same defendant to a much broader
forfeiture order.151
Equitable sharing essentially federalizes state forfeitures. 152 First, local
police seize property in accordance with state forfeiture procedures
requiring a less onerous standard of proof.153 Then, they transfer that
property to the relevant federal agencythe transfer of which, in civil
cases, exempts the seizure from the warrant requirement.154 Finally, the
agency completes the forfeiture, the seized (now forfeited) assets go into
the Fund, and the state agency receives their 80% cut.155 Not surprisingly,
such a streamlined operation attracts pointed criticism. 156
C. Asset Disbursement Profit Incentives Have Previously Resulted in
Gross Abuses of Forfeiture Power.
The heavy reliance of state and local police forces on forfeiture
proceeds combined with the ability to reap a huge percentage of those
proceeds purely for law enforcement spending has resulted in a number of
highly publicized abuses of forfeiture power. 157 Perhaps the most widely
148
See Worrall, supra note 87, at 227.

See WILLIAMS ET AL., supra note 14, at 25 (*S+tate law typically mandates that the
proceeds [of forfeiture] be distributed to specific non-law enforcement purposes . . . .). The
incentive is so great that the Departments Asset Forfeiture and Money Laundering Section
implores federal agents to process equitable sharing claims quickly, as state and local agencies
have come to rely on them. ASSET FORFEITURE POLICY MANUAL, supra note 15, at 127.
150 See Blumenson & Nilsen, supra note 144, at 52-54.
151 See, e.g., 18 U.S.C. 981 (2006); 18 U.S.C. 982 (2006 & Supp. III 2010).
152 See Blumenson & Nilsen, supra note 144, at 51-52, 54.
153 See id. at 51, 54.
154 2 COMISKY ET AL., supra note 108, 13.02[1][a].
155 See Blumenson & Nilsen, supra note 144, at 51; U.S. DEPT OF JUST., supra note 141.
156 See generally Balko, supra note 16; WILLIAMS ET AL., supra note 14, at 25; Worrall, supra
note 87, at 227.
149
157
See NPR, SPECIAL SERIES, Dirty Money: Asset Seizures and Forfeitures, http://
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113
controversial was the case of Donald Scott, a reclusive multimillionaire

rancher in Malibu, California.158 In October 1992, a task force comprised of
L.A. County sheriffs deputies, U.S. Drug Enforcement Administration
(DEA) agents, National Park Service officials, and others burst through
Scotts door in the early morning.159 Reacting to his wifes screams, and
partially blind from recent cataract surgery, he came out of his bedroom
clutching a .38-caliber revolver.160 Deputies ordered him to drop it; as he
did, they shot him in the chest twice, killing him. 161 The posse was
searching for a large cache of marijuana plants on the strength of a tip
from an anonymous informant who claimed there were thousands of . . .
plants on the property.162 Despite this, a multi-hour search of the ranch
turned up not a single plant.163
In the aftermath of the shooting, Ventura County District Attorney
Michael Bradburys investigation turned up some disturbing facts. 164 The
DEA agents present that night had prepared the necessary paperwork to
seize the ranch in advance of the raid.165 Scotts ranch was worth $5 million,
and he had repeatedly rebuffed National Park Service attempts to purchase
his landthe Service wished to incorporate it into a nearby National
Recreation Area.166 Scotts close friend and executor, Nicholas Gutsue,
openly suspected that the agencies had struck a similar deal to that
discussed earlier: the DEA would seize the property via the wide-reaching
federal forfeiture statutes, the Park Service would purchase the land, and
the other participating agenciesfederal, state, and localwould split the
proceeds.167
www.npr.org/series/91856663/dirty-money-asset-seizures-and-forfeitures (last visited Oct. 27,

2011).
158
See Ron Soble, Death of a Tycoon: Killed in a Raid, Rancher Don Scott Was a Man of Legends,
L.A. TIMES, Oct. 11, 1992, http://articles.latimes.com/1992-10-11/local/me-257_1_don-scott; see
also Richard Miniter, Ill-Gotten Gains: Police and Prosecutors Have Their Own Reasons to Oppose
Forfeiture-Law Reform, REASON, Aug.-Sept. 1993, at 32, 32. Though the forfeiture in this case
was to be effected via the drug-forfeiture statute, 21 U.S.C. 853 (2006), the incentives that
spurred the raid are the same as those affecting use of the laundering-forfeiture statutes, 18
U.S.C. 1956-1957 (2006 & Supp. III 2010). See Soble, supra.
159
160
161
162
163
164
165
166
167
Soble, supra note 158.

Id.
Id.
Miniter, supra note 158, at 32.
Soble, supra note 158.
Id.
Id.
Id.; see supra text accompanying notes 153-55.
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Regardless of whether or not the conspiracy ran as deep as Gutsue

imagined, Bradbury was convinced forfeiture was a major objective of the
raid; not only did two participating agents admit that the topic had been
discussed in a prior briefing, but the sheriffs department was found to
have both a property appraisal statement for the ranch and a parcel map
listing property values of neighboring plots. 168 In any case, it is clear
enough that the structure of the federal forfeiture system was broad
enough to at least pique the interests of the agents involved, if not actively
influence their conduct.169
Though Donald Scott may have felt it the hardest, he is certainly not
the only civilian to have been affected by this sort of forfeiture abuse. 170
Paul Born, recently out of prison, was contacted by an undercover officer
who offered to sell him cocaine; Paul declined.171 Later, the officer called
Borns home and arranged to purchase two ounces of cocaine from a thirdparty residing there.172 After the sale, which took place in another location
and at which Born was not present, federal prosecutors filed a civil
forfeiture complaint seeking to confiscate the house; the order was granted
on the grounds that the house telephone was used to set up the sale,
sufficiently facilitating the drug crime.173
In Nebraska, Emiliano Gonzolez was pulled over for speeding.174
Officers searched a cooler in his car and discovered approximately $125,000
in cash, which they seized.175 On appeal, the court found unconvincing
Gonzolezs claim that the cash represented the combined life savings of
him and two others, pooled together to buy a refrigerated truck for his
produce business, despite the corroborating testimony from his two
partners.176 It reasoned that possession of a large sum of cash is strong
evidence of a connection with drug activity, and found that such
possession, combined with Gonzolezs initial (false) denial of a criminal
record (one driving under the influence conviction), was a sufficient
showing to satisfy the Governments forfeiture burden.177 The list goes
168

See supra Part III.D.
170 Moores, supra note 30, at 778-79 (noting examples of abuse).
171 United States v. 916 Douglas Ave., 903 F.2d 490, 491 (7th Cir. 1990).
172 Id.
173 Id. at 493-94 (It is irrelevant whether the property's role in the crime is integral,
essential or indispensable. The term facilitate implies that the property need only make the
prohibited conduct less difficult or more or less free from hinderance *sic+. (quoting United
States v. Schifferli, 895 F.2d 987, 990 (4th Cir. 1990) (internal quotation marks omitted))).
169
174
175
176
177
United States v. $124,700, in U.S. Currency, 458 F.3d 822, 823 (8th Cir. 2006).
Id. at 824.
Id.
Id. at 824-26.
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115
on.178
D. Reform Efforts Thus Far Have Not Removed Incentives for Abuse.
The increasing accumulation of similar experiences of abuse spurred a
public outcry for reform, and then-House Judiciary Chairman Henry Hyde
was finally able to push his Civil Asset Forfeiture Reform Act (CAFRA)
through Congress.179 CAFRA made a number of positive procedural
changes to the then-lawless state of civil forfeiture, but the majority of them
did not trigger protection until after seizure.180 Faced with the monetary
and temporal cost of defending against forfeiture, many aggrieved parties
simply choose not to challenge the order.181
Further, CAFRA did nothing to alter the institutionalized incentives
that arise when law enforcement agencies have the power to both seize
property and use it to fund their operations.182 The ineffective nature of the
reform is backed by hard numbersthe relative increase in Fund activity
from 1996 (four years before CAFRA) to 2008 (eight years after) is
exponentially larger than that same increase between 1985 and 1996.183 Not
only has CAFRA failed to obstruct federal forfeiture, the net amount of
assets forfeited has exploded since its inception.184
178 See Bovard, supra note 3, at 9-10 (citing as examples of abuse: seizure of $250,000 from
decedent owners heirs on strength of a confidential informants tip that deceased had taken
payment to allow his dock to be used for drug sales two years prior; seizure at an airport of
$113,000 that a Vietnamese woman had collected from twenty community families to bring
back to children in her home village); see also Balko, supra note 16, at 33 (noting the seizure of
$17,500 on suspicion arising from a single previous marijuana chargethe driver was
bringing the balance of a car accident settlement to buy his aunt a new car).
179
Worrall, supra note 87, at 221.

See id. at 228.
181 See WILLIAMS ET AL., supra note 14, at 13.
182 Moores, supra note 30, at 783. Some relevant procedural changes CAFRA brought about
include: increase of the governments forfeiture burden to a preponderance of the evidence;
addition of an innocent owner defense; requirement that indigents be provided counsel;
mandatory release of property where seizure (but not forfeiture) would be an undue
hardship; creation of a cause of action against the government for wrongful forfeiture; and
extension of the statute of limitations on forfeiture challenges. Worrall, supra note 87, at 228.
183 Moores, supra note 30, at 783-84 (tracing fund activity between 1985 and 1996 (increase
of $311 million) and 1996 and 2008 (increase of approximately $1 billion)).
180
184
Id. at 784.
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ANALYSIS
IV. The Dual Concerns of the Forfeiture Statutes Expansive Reach and
the Law Enforcement Communitys Profit Incentive Must Be
Addressed if Future Abuse Is to Be Prevented.
At this point it is clear that the current structure of the federal moneylaundering-asset forfeiture scheme is significantly tilted towards granting
forfeiture requests.185 An extremely broad interpretation of the involved
in standard combined with the total lack of judicial discretion over
forfeiture orders creates a judicial bias strongly in favor of forfeiture
success.186 Concurrently, the perks of the equitable-sharing system
compound upon the Departments already existing focus on revenue
generation through forfeiture to create an analogous enforcement bias.187
The fact that both the bodies individually instigating and adjudicating the
average forfeiture proceeding are biased in favor of success is evidence
enough that challenging parties need to be afforded more protection,
especially considering the limited application of the Constitution to the
issue.188 The aforementioned judicial bias can be combated by amending
the terms of the forfeiture statute to add a provision requiring the amount
forfeited to be proportional to the severity of the crime.189 Likewise,
imposing heavy limitations on the equitable-sharing payout scheme could
minimize the profit incentives responsible for the enforcement bias.190
Though realistically neither bias can be completely eliminated, a reform
program aimed at lessening both would effectively reduce the risk of
further forfeiture abuse.191
185
See supra Part III.D.

See 18 U.S.C. 982(a)(1) (2006) (The court, in imposing sentence . . . shall order that the
person forfeit . . . any property . . . involved in *the+ offense.) (emphasis added); see also
Cassella, supra note 22, at 615-16.
186
187 See Blumenson & Nilsen, supra note 144, at 51-54; WORRALL, supra note 125, at 13-14; see
also supra Part III.B.
188
See discussion supra Parts I.E, III.A-B; see, e.g., United States v. Bajakajian, 524 U.S. 321
(1998).
189 See Cassella, supra note 22, at 603-04 (demonstrating that the crux of an Eighth
Amendment analysis is proportionality between crime and punishment).
190
191
See Moores, supra note 30, at 801-02.

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117
A. Combating Bias Through ProportionalityAmendment of the

Forfeiture Statute to Codify the Bajakajian Balancing Test
The addition of a proportionality requirement to 981 and 982 would
be a significant step towards mitigating the risk that property loosely
connected to a money-laundering offense will get swept away by the
federal courts almost pro forma approval of forfeiture orders.192 The task
of crafting such a requirement includes at its core the protection of those
defendants excluded by Bajakajian (traditional money launderers)it is
essential that the proportionality test be applied to every forfeiture
sought.193 However, the standard must be flexible enough to avoid
interfering with the legitimate enforcement of forfeiture authority. 194
The grossly disproportional requirement set by the Supreme Court is
a fine place to start, and in fact, the search need not progress much further;
a closer look at Bajakajian and its progeny reveals a very workable
balancing test.195 The Bajakajian test asks whether the amount of the
forfeiture is grossly disproportional to the gravity of [the] defendants
offense.196 In so determining, the Court considered four factors: (1) the
nature and extent of the crime, (2) whether the violation was related to
other illegal activities, (3) the other penalties that may be imposed for the
violation, and (4) the extent of the harm caused.197
The major obstacle to Eighth Amendment protection of money
launderers seized property is not the proportionality inquiry itself or its
factors but the effect that the specific facts of Bajakajian had on the
subsequent application of the test.198 Bajakajians level of criminal non-
192
See supra note 88 and accompanying text.

See Bajakajian, 524 U.S. at 338-39 (evaluating plaintiffs nontraditional laundering crime
with a proportionality analysis).
193
194 See Craig Gaumer, A Prosecutors Secret Weapon: Federal Civil Forfeiture Law, 55 U.S.
ATTYS BULL. 59, 59 (Nov. 2007) (providing the history of forfeiture laws and their legitimate
enforcement purposes).
195 See Bajakajian, 524 U.S. at 334-38; see, e.g., United States v. 817 N.E. 29th Drive, 175 F.3d
1304, 1311 (11th Cir. 1999) (deeming it improper to factor in the personal characteristics of the
owner, the character of his property, and the value of any remaining assets); United States v.
Dicter, 198 F.3d 1284, 1292 n.11 (11th Cir. 1999) (denying personal impact of forfeiture on
specific defendant as a factor to consider under Bajakajian).
196

United States v. $100,348.00 in U.S. Currency, 354 F.3d 1110, 1122 (9th Cir. 2004).
198 See Bajakajian, 524 U.S. at 338 (explaining that the nature of the crime was relatively
inoffensive, the actions were unrelated to other illegal activities, and *t+he money was the
proceeds of legal activity and was to be used to repay a lawful debt); supra Part II (discussing
how the Supreme Courts application of the proportionality factors to the reporting offense
considered in Bajakajianone lacking serious culpability when compared with other
laundering offensesresulted in a standard almost insurmountable for traditional money
197
118
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involvement represented the outermost point on the gamut of moneylaundering crimes, and a first impression analysis focused on his situation
yielded a jurisprudence that mandates similar non-involvement.199
Amending the statute to codify a similar analysis with the express
provision that no factor is dispositive and that the presence of affirmative
illegal conduct would not per se defeat disproportionality, would allow for
the test to be applied outside the precedential effect of those specific
circumstances.200 Moreover, codification of the test would have a deterrent
effect on law enforcement actors planning to seize property that may be
borderline disproportionalwith no doubt that the standard applies in all
cases and to all offenses, an otherwise unscrupulous agent may rethink his
course of action.201
Applying the factors of the test to the forfeiture abuses previously
discussed reveals its efficacy. 202 Consider again the case of Paul Born,
whose house was forfeited as facilitating a cocaine sale negotiated on his
telephone that he did not carry out.203 First, the nature of the crime of
selling cocaine is certainly amoral and contrary to societys best interests,
but the sale extended to no more than a single incident, and the drugs sold
were worth only $3200.204 Second, the sale was not related to any other
illegal incidents.205 Third, other penalties for negotiating the sale of drugs
can include fines and jail time, though the actual penalties vary depending
on the defendants criminal record.206 Finally, as the purchaser was an
launderers).
199 See id. at 337-38 (characterizing the offense as solely a reporting offense and
distinguishing it from other, more criminal activities).
200 See supra note 122 and accompanying text (discussing examples of how the
insurmountable standard born from the Bajakajian circumstances makes challenging forfeiture
on grounds of excess all but impossible). Contra 18 U.S.C. 981 (2006) (lacking a
proportionality requirement).
201 See supra Part III (discussing the incentives that drive revenue-based forfeiture and
mentioning specific examples of disproportionate forfeiture based on those incentives); cf.
Kent Greenawalt, Punishment, in CASES AND MATERIALS ON CRIMINAL LAW 35 (Joshua Dressler
ed., 5th ed. 2009) (Knowledge that punishment will follow crime deters people from
committing crimes, thus reducing future violations . . .).
202 See $100,348.00 in U.S. Currency, 354 F.3d at 1122; United States v. 916 Douglas Ave., 903
F.2d 490, 493-95 (7th Cir. 1990).
203 See supra text accompanying notes 171-73.
204 916 Douglas Ave., 903 F.2d at 491.
205 Id. at 492.
206 Compare FEDERAL SENTENCING GUIDELINES 2D1.1 (2010) (listing offense level for
between 50 and 100 grams of cocaine as 16), with id. 5A (showing recommended sentence for
offense level 16 with one previous conviction as ranging between 24-30 months), and id.
5E1.2 (listing appropriate fines as ranging between $5000 and $50,000, and noting that in
setting the fine the judge should consider the seriousness of the offense).
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119
undercover officer, disseminating the cocaine caused no actual harm.207

Balancing these factors, it seems clear that the forfeiture of the house is
grossly disproportional to the gravity of the cocaine sale.208 Born did not
carry out the sale, which was a one-time affair involving drugs valued at
less than the minimum fine for the offense.209 There was no harm caused to
any innocent third party, and Born was uninvolved with any other illegal
activities.210 The inclusion of the Bajakajian test as discussed above would
likely have preserved Borns house; at the very least, it would have enabled
the court to conduct the analysis.211 Instead, in a strong example of how the
broad reach of the statute fosters judicial bias against the defendant, the
court was forced to hold that the plain language of the statute
demanded . . . [it] affirm forfeiture of any real estate that is used in any
manner or part to commit or facilitate [the offense].212 The court itself feels
its hand involuntarily moved, lamenting that [t]he loss of ones home for
the sale of a small amount of cocaine is undoubtedly a harsh penalty.213
The potential deterrent effect of the proportionality test on forfeiture
abuse can be seen in the case of Donald Scott.214 An operation of that size,
involving such a substantial level of interagency cooperation necessarily
requires long and careful planning. 215 This preparation, coupled with the
fact that forfeiture of the $5 million property was a major goal of the raid,
indicates that all agents involved in its planning were confident of the
forfeitures validity; and why wouldnt they have been?216 Even if the
informants tip identifying thousands of marijuana plants was
exaggerated by an order of magnitude, Scotts mere involvement in the
207 See United States v. Bajakajian, 524 U.S. 321, 339 (1998) (finding no harm where the
crime affects only the government and causes no loss to the public fisc).
208

See FEDERAL SENTENCING GUIDELINES, supra note 206, at 5E1.2 (listing the applicable
minimum fine as $5000).
210 See Bajakajian, 524 U.S. at 339 (finding no harm where the crime affects only the
government and causes no loss to the public coffers).
209
211
See supra text accompanying note 197.

United States v. 916 Douglas Ave., 903 F.2d 490, 495 (7th Cir. 1990) (emphasis
removed).
212
213
Id. at 494.
See supra Part III.C.
215
See Donald Scott, MARIJUANA POLY PROJECT, http://www.mpp.org/our-work/
victims/donald-scott.html (last visited Oct. 27, 2011) (noting a months time between the tip
and the raid).
214
216 See Miniter, supra note 158, at 33 (reflecting investigating D.A. Michael Bradburys
official conclusion that forfeiture of the property was a major goal of the raid, as well as the
fact that Scott had repeatedly refused to sell his property to the National Park Servicean
agency with officers involved).
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cultivation and sale of marijuana would characterize him as a drug

trafficker, squarely within the class of persons for whom the [forfeiture]
statute was principally designed[,] and squarely outside of those persons
enjoying a minimal level of culpability, like Bajakajian.217 The police
would have needed to show merely that the existence of the property made
the crime either easier to commit or harder to detect, a finding that would
demand forfeiture of the real estate. 218
Had the proposed test been incorporated in the statute, the
Government would have had to show that the amount sought to be
forfeited was proportional to the gravity of the offense in every forfeiture
case.219 With this burden firmly ingrained,220 it is hard to believe that those
same planning agents, with equal confidence, would not have raised the
concern that the forfeiture may not suffice as proportional. In this case,
doubts about the authenticity of the tip would be cause for serious concern,
as the amount of marijuana actually found would have a direct impact on
the judicial determination of the gravity of the crimethe discovery of five
plants would clearly weigh lighter than that of five hundred. 221 Those
hypothetical concerns are physical manifestations of deterrence and are
representative of how the proportionality test proposed would lessen the
risks of forfeiture abuse.222
B. Limiting the Equitable-Sharing System to Minimize Profit
Incentives
The most effective way to reduce the risks of continued forfeiture
abuse would be to convince those wielding the power to stop abusing it,
but a large-scale moral reform on the part of corruptible enforcement
agents is rather unlikely.223 Similarly, an ideal solution would include
downgrading the Departments focus on revenue generation from its toplevel status to hold it subordinate to forfeitures other, more politically
217
United States v. Bajakajian, 524 U.S. 321, 338-39 (1998).

916 Douglas Ave., 903 F.2d at 495.
219 See supra text accompanying note 193.
220 See supra text accompanying note 197.
221 See Miniter, supra note 158, at 32 (highlighting inconsistencies with the informants tip
that claimed thousands of plants were present, yet two sets of aerial photos showed no sign
of them).
218
222 See Greenawalt, supra note 201, at 35 (discussing the principle of deterrence); Worrall,
supra note 87, at 236-37 (explaining how the lack of a proportionality standard within current
civil asset forfeiture laws benefits the government).
223 See Moores, supra note 30, at 780-82 (citing the history of forfeiture law dating back to
biblical times).
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121
correct uses.224 Alas, any significant change in Department policy would

need to be pursued from within, and any external pressure that would
result in the Department burying the policy goal would carry no practical
guarantees.225 The next best thing, however, is very attainable; the removal
of those incentives that encourage forfeiture abuse should drastically
reduce offending agents motivation to overreach.226 If seizing as much as
possible no longer yields substantial revenue rewards, the prevalence of
revenue-based forfeiture proceedings should normalize to a level reflecting
use towards its legitimate purposesdisrupting and dismantling illegal
enterprises, depriving criminals of the proceeds of illegal activity, deterring
crime, and restoring property to victims.227
The preeminent source of profit incentives both for state and federal
agencies is the adoptive-forfeiture program within the equitable-sharing
system,228 and any real progress towards lessening opportunistic seizures
must start with the prohibition of the program in favor of jointinvestigative forfeitures.229 As previously discussed, adoptive forfeiture
allows a state or local office to turn over both a forfeiture case and the
related assets seized to an appropriate federal agency. 230 The federal agency
then pursues the forfeiture order in federal court and deposits whatever
assets were successfully ordered forfeited into the Fund. 231 Once deposited,
the state office is eligible to receive up to 80% of the total revenue from the
liquidation of the assets, revenue that is earmarked by the Program for law
enforcement use only.232
On its face, the adoptive-forfeiture teamwork seems to be a triumph of
the federalist systemlocal offices provide groundwork in their home
jurisdictions while the federal agency leverages its more robust litigation
resources to successfully pursue the actions in court, while ensuring that
the revenue it passes back down is used solely for more effective
enforcement of the law on a local level.233 The reality, however, is that state
224
See WILLIAMS ET AL., supra note 14, at 14.

See generally TAKING THE PROFIT OUT OF CRIME, supra note 125, at 5 (presenting the
Departments goals for asset forfeiture, but neglecting to recognize fiscal profit).
225
226 See WILLIAMS ET AL., supra note 14, at 14; Baicker & Jacobson, supra note 132, at 2135
(concluding that financial incentives change the behavior of police, and that *w+hen police
are . . . allowed to keep the assets they seize, they increase . . . policing).
227 TAKING THE PROFIT OUT OF CRIME, supra note 125, at 5.
228 See id. at 49-50, 63.
229 See WILLIAMS ET AL., supra note 14, at 25 (discussing the incentives for increased
forfeiture that the adoptive forfeiture system creates and the controversy surrounding it).
230
231
232
233
See supra notes 147, 153-55 and accompanying text.

See supra notes 153-55 and accompanying text.
See supra notes 153-55 and accompanying text.
See Worrall, supra note 87, at 227-28.
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or local participants often abuse the system, fudging personal expenditures

to fit within the law enforcement use mandate and unnecessarily
funneling forfeitures through the federal government so as to avoid more
onerous local and state earmarks on accumulated revenues. 234 One
poignant example is the state of Missouri, where 100% of seized revenues
are earmarked for the public education system. 235 Despite this requirement,
the Kansas City Star exposed multiple local Missouri police departments as
using the adoptive-forfeiture program to retain 80% of their forfeitures at
the expense not only of the public education system but of the citizens
whose belongings were taken.236 In this way, local departments essentially
trade one earmark for another, with the crucial difference that the
equitable-sharing earmark always requires that the department spend the
money on itself.237
The self-supporting cycle that adoptive forfeiture creates is a pure
display of the forfeiture profit incentive at work, but it can be mitigated
with the substitution of joint-investigative forfeitures for adoptive ones.238
Though operating under an almost identical procedure, joint-investigative
disbursements are measured proportionally, with each agency receiving a
percentage of the assets corresponding to their level of participation in the
seizure.239 The potential for local departments to avoid state requirements
is still present, but the federal half of the team is no longer as motivated to
entertain seizures undertaken entirely by state actorswhile an adoptive
forfeiture guaranteed the Fund a 20% share of the take in return for a 0%
expenditure of resources, a joint-investigative forfeiture will pay only a
proportion equal to the federal agencys participation.240 This small
procedural change removes a large incentive for federal participationthe
collection of asset revenue without a significant expenditure of resources.241
Substituting the joint-investigative framework in this way would help to
cool the incentives inherent in equitable sharing. 242
234
See Balko, supra note 16, at 34; WILLIAMS ET AL., supra note 14, at 25.
See WILLIAMS ET AL., supra note 14, at 71.
236 See Balko, supra note 16, at 240.
238 See supra Part III.B.
239 See GUIDE TO EQUITABLE SHARING FOR STATE AND LOCAL LAW ENFORCEMENT AGENCIES,
supra note 144, at 12.
240 See id. In no case is the federal share less than 20%. Id.
242 See GUIDE TO EQUITABLE SHARING FOR STATE AND LOCAL LAW ENFORCEMENT AGENCIES,
supra note 144, at 12 (noting a 20% federal share of adoptive-forfeiture proceeds where the
state agency performed 100% of the pre-seizure activity, as compared to a federal share of
joint-investigative forfeiture proceeds that is proportional to the number of work hours each
involved agency contributed).
235
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123
CONCLUSION
The enactment and expansion of the money-laundering statute and its
concurrent forfeiture provisions was a direct and largely appropriate
response to the crime boom that occurred in the United States between the
1950s and 1970s.243 With the benevolent purpose of cutting organized
crimes legs out from under it, Congress strongly insisted that the
provisions be given their broadest possible interpretation, stretching to
reach every potential criminal possession that could be identified.244 Courts
adhered to this intent, and the increasingly expansive interpretations of
981 and 982 grew to heavily favor forfeiture findings.245 The resulting
forfeitures put even some judges, who lacked all discretion to intervene, on
edge.246 Bajakajian was the cherry on top of the judicial bias sundae,
severely limiting the constitutional protection of disproportional forfeitures
as excessive fines.247
Simultaneously, the Department and other law enforcement agencies
discovered the vast revenue generating potential of forfeiture, and did not
hesitate to pursue that potential as one of forfeitures major goals.248 In
doing so, they created an asset disbursement system that benefited federal,
state, and local police alikeevery segment of the enforcement community
enjoyed the spoils, at the expense, in part, of public state programs and
(relatively) innocent citizens.249
To avoid the abuses that characterized that quest for spoils, it is
essential that Congress graft a proportionality requirement into the
forfeiture statute; indeed it is clear that a number of past abuses could have
been prevented or avoided on the strength of such an amendment. 250
Further, while it is highly unlikely that enforcement agencies will cease to
use forfeiture as a revenue generating tool, the profit incentives inherent in
the federal disbursement system can be reduced, with the effect of
lessening the motivation to maximize every forfeiture.251 By pursuing these
reforms, the powerful tool of forfeiture can continue to be used for its
primary law enforcement purposes, while protecting those people that it is
not intended to be used against.252
243
See supra Part I.B.

See supra Part I.C.
245 See supra Part I.D-E.
246 See supra Part I.D-E.
247 See supra Part II.
248 See supra Part III.A.
249 See supra Part III.B-C.
250 See supra Part IV.A.
251 See supra Part IV.B.
252 See supra Part IV.
244

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SUCOFF - FINAL (DO NOT DELETE)

The money-laundering asset forfeiture laws were enacted during the

SUCOFF - FINAL (DO NOT DELETE)

New England Law Review

of the money-laundering-forfeiture statute to include a proportionality

hoever first said crime doesnt pay was lying.1 A decade

CAMBRIDGE INTERNATIONAL DICTIONARY OF IDIOMS 84 (1998).

SUCOFF - FINAL (DO NOT DELETE)

Combating the Dual Forfeiture Biases

provisions to nearly every crime imaginable. 9 The extremely limited utility

See 18 U.S.C. 1956(c)(7) (2006 & Supp. III 2010).

See infra Part IV.

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reaches a defendants property. Part II will discuss the minimal protection

The Money-Laundering Offenses and Their Subsequent Forfeitures

In its most simple form, money laundering is the process used by a

WILLIAMS & WHITNEY, supra note 4, 1.1, at 4.

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Combating the Dual Forfeiture Biases

See Cassella, supra note 22, at 618-19.

25 18 U.S.C. 1956(a)(1)(B)(i) (concerning transactions designed to disguise the nature, the

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New England Law Review

See Calero-Toledo, 416 U.S. at 680-81.

Maron, supra note 2, at 247 & n.30.

See Moores, supra note 30, at 781-82.

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Combating the Dual Forfeiture Biases

was strong bipartisan support for this expansion of forfeiture authority,

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New England Law Review

has shown any indication of ruling to the contrary. 48 Consequently,

Proceeds of the Specified Unlawful Activity

Determining what property constitutes proceeds of an SUA offense

Subject Matter of the Laundering Transaction

Property other than SUA proceeds comprising the subject matter of a

Cassella, supra note 22, at 615.

Cassella, supra note 22, at 620.

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offender misappropriates $140,000 and uses it to purchase a motor home,

GURUL & GUERRA, supra note 19, 7-3(b), at 205.

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Property that Facilitates the Laundering Offense

Property is also subject to forfeiture if it facilitates the commission of a

18 U.S.C. 981(a)(1)(A) (2006).

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leaned behind it while negotiating as if checking the engine. 73 One example

Property Central to the Offense That Is Not Directly

The final category of property forfeitable in a money-laundering

GURUL & GUERRA, supra note 19, 7-3(b), at 205.

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See Cassella, supra note 22, at 657.

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has no option or discretion concerning the forfeiture of property

See supra Part I.D.

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