The eyes of most criminal law enthusiasts glaze over when money judgments get involved ("we work for FREEDOM, man"), so I will keep this short. Today's Hampton opinion affirms what we already know: forfeiture awards are really just glorified money judgments, not the in rem proceedings against certain proceeds they once appeared to be.
In this case, the defendant committed fraud, taking a set amount of money from certain businesses. The defendant pleaded guilty, and the government sought forfeiture of that amount of money. Hard as this may be to believe, some people who commit financial crimes are bad with money, and the defendant had no assets at the time of sentencing. The Sixth Circuit joined numerous other circuits in holding that the government could obtain a money judgment against the defendant for this sum of money even when the assets sought no longer existed. The language of the forfeiture statute is hardly clear on this point, allowing forfeiture of "any property constituting, or derived from, proceeds the person obtained directly or indirectly, as the result of such a violation." What happens if no such property remains at the time of sentencing? Apparently the government just gets a money judgment. But isn't that what restitution is for? Yes, and the government also obtained an identical restitution award.
Those of us who really enjoy these money cases might find one or two bits of good news to take away from this case. For one, the opinion makes it clear that forfeiture awards are, at least in part, punitive, leaving them open to Eighth Amendment challenges. Indeed, the opinion includes a footnote noting that nobody raised such a challenge here. Additionally, although it was not raised, there still remains a question regarding duplicative forfeiture/restitution awa[SNORE....]