Federal criminal forfeiture is a new phenomenon in the United States, and the imposition of joint and several forfeiture liability has no longstanding roots in American law. But since 1970, the use of criminal forfeiture has exploded and is now a nationwide problem. Prosecutors are abusing criminal forfeiture laws to rake in billions of dollars without regard for the disproportionality of these punishments or the devastating consequences for those affected.

A particularly unfair type of forfeiture is joint and several liability. When such liability is imposed, one member of a criminal conspiracy—no matter how insignificant his or her role—can be on the hook for the profits of the entire enterprise.

Here, the district court imposed a forfeiture amount premised on joint and several liability for $181,847,376 against Lev Aslan Dermen under 18 U.S.C. § 981(a)(1)(C). The Tenth Circuit affirmed the forfeiture order, plainly misapplying the statute and the Court’s precedents. Dermen timely petitioned for panel rehearing and rehearing en banc, but the Tenth Circuit denied the petition. Now, Dermen has petitioned for certiorari to the Supreme Court of the United States. Cato has filed an amicus brief urging the Supreme Court to review the case and reverse.

Our brief explains why the decision below is wrong. First, § 981(a)(1)(C) provides for the forfeiture of property that “constitutes or is derived from” certain offenses. The most natural reading of these words is that each individual is liable only for a forfeiture of the amount that individual “derived from” the crime. The Court’s caselaw supports this reading—the Court rejected joint and several liability as incompatible with a similar statutory text in Honeycutt v. United States, 581 U.S. 443 (2017). Holding otherwise violates a core tenet at the heart of the Eighth Amendment and Due Process Clauses: Punishment must be individual and in­div­idualized.

Further, joint and several liability has its proper place in tort, not in criminal forfeiture. Forfeiture’s punitive goals require punishing the person who actually received tainted property, rather than a person who did not. Also, there is no analogous path for jointly and severally liable criminal defendants to bring actions for contribution to ensure that responsibility is apportioned fairly among them.

Finally, we outline the importance of plain error review to protect defendants’ constitutional rights even when, like here, there is a circuit split on an issue. If plain error review is unavailable, defendants are deprived of due process and circuit courts are forced to sidestep decision-making.

The Supreme Court’s intervention is necessary to reaffirm the principle of Honeycutt and to prevent further abuse of federal criminal-forfeiture laws.