Academic journal article Vanderbilt Law Review

Criminal Asset Forfeiture and the Sixth Amendment after Southern Union and Alleyne: State-Level Ramifications

Academic journal article Vanderbilt Law Review

Criminal Asset Forfeiture and the Sixth Amendment after Southern Union and Alleyne: State-Level Ramifications

Article excerpt


The Founding Fathers thought the jury-trial right was so fundamental to our system of justice that they included it in the Sixth Amendment of the United States Constitution. The right to trial by jury serves to protect criminal defendants against government overreaching by ensuring that they will be judged by their fellow citizens.1 And as a whole, our system of justice and our citizenry have remained committed to the jury trial. But since the Founding, the Supreme Court has narrowed the application of the Sixth Amendment's guaranty.

Two decades ago, the Supreme Court decided in Libretti v. United States that there is no constitutional right to a "jury verdict on forfeitability" in a criminal proceeding.2 Rather, the Court held that the right to a jury trial in forfeiture proceedings was purely statutory and thus entirely up to the legislature to grant or deny.3 Because it considered criminal forfeiture to be part of the sentence imposed on a person found guilty of a crime, the Court reasoned that the facts that link an asset to a crime and make it subject to seizure, like other sentencing factors, need not be proven to a jury beyond a reasonable doubt.4 Relying on subsequent cases, scholars have cast Libretti's holding into doubt, believing the Court's reasoning in that case "rests on principles that are no longer sound."5

Since Libretti, the Court has expanded Sixth Amendment protection to require jury fact-finding in a greater range of procedures, specifically identifying factors that a jury, rather than a judge, must decide for sentencing.6 In Apprendi v. New Jersey, the Court held that a jury, not a judge, must determine any fact that increases a defendant's maximum sentence.7 A jury must find that the government has proven those facts beyond a reasonable doubt.8 The Supreme Court then extended its Apprendi rationale to encompass criminal fines as well as terms of imprisonment in Southern Union Co. v. United States.9 Since the amount of the defendant's fine depended on the number of days the defendant was in violation of the law, the relevant number of days was a fact that a jury must have determined beyond a reasonable doubt.10 Most recently, in Alleyne v. United States, the Court held that any fact that increases a defendant's mandatory minimum sentence is an "element" of the crime that must be submitted to the jury.11 In light of this progression of the so-called Apprendi rule, both defendants and commentators have vigorously argued that Libretti should be abrogated.12 However, despite the Court's expansion of the Apprendi rule, lower courts have consistently held that a trial court's fact-finding during the forfeiture proceedings did not violate the defendant's Sixth Amendment rights because the right to have a jury determine forfeitability remains statutory in nature.13

This Note agrees that the Court should, and eventually will, overrule Libretti: the same constitutional standard that applies to Apprendi facts should apply to the facts necessary to authorize and determine the amount of forfeiture.14 Unlike the scholars and judicial opinions that have addressed this issue, this Note contributes an argument based on historical practice at the time the Sixth Amendment was adopted and focuses on forfeiture proceedings in state, rather than federal, courts.15 This Note argues that the right to have a jury determine forfeiture is constitutionally guaranteed and that, in anticipation of a Supreme Court pronouncement to that effect, states should adopt a statutory scheme sufficiently robust to protect that right.

Part II discusses the contours of criminal asset forfeiture, including the types, theories, and makeup of the modern statutes. This Part also explains the Sixth Amendment procedural safeguards (or lack thereof) within these criminal forfeiture provisions. Part III analyzes the impact of the Apprendi rule on criminal forfeiture, how Libretti's foundation has begun to crumble, and why determinations regarding forfeitability deserve Sixth Amendment protection. …

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