NCJ Number
100937
Journal
Harvard Law Review Volume: 97 Issue: 8 Dated: (June 1984) Pages: 1929-1946
Date Published
1984
Length
18 pages
Annotation
As an alternative to the criminal forfeiture mandated by the Racketeer Influenced and Corrupt Organization (RICO) statute and the Continuing Criminal Enterprise (CCE) statute, this paper proposes 'profits fines' in proportion to the offender's unjust enrichment from the crime, to be imposed by a judge in a posttrial hearing.
Abstract
RICO and CCE draw explicitly and implicitly upon ancient doctrines of forfeiture of estate and in rem forfeiture in shaping modern criminal forfeiture. Although RICO and CCE avoid the worst features of their progenitors, the statutes authorize 'enterprise forfeiture' (the confiscation of the offender's interest in any enterprise involved in the crime) as well as jury determination of the extent of a criminal forfeiture in the context of the trial verdict. Enterprise forfeiture produces unequal punishment for similar crimes, and jury sentencing at trial infringes on the defendant's right to a fair trial. The profits fine would specifically target the gross profits of the crime based on the restitution principle. By imposing the fine at a posttrial hearing, the judge could apply a civil standard of proof for determining crime profits and ensure an accurate and fair determination of the appropriate fine. 96 footnotes.