Criminal Forfeiture and the Sixth Amendment: The Role of the Jury at Common Law

Throughout its recent jurisprudence after Apprendi v. New Jersey, the Supreme Court has emphasized that its analysis of the Sixth Amendment jury trial right centers upon the historical role of the jury at common law. Just last year, in Southern Union Co. v. United States, the Court extended the Sixth Amendment jury trial right to criminal fines after concluding that the jury's verdict determined the maximum fine that could be imposed at common law. The Court remained silent, however, with regard to another financial penalty commonly applied in the federal system: criminal forfeitures. Given that the Supreme Court has previously recognized that criminal forfeitures are "fines" within the meaning of the Eighth Amendment, it might be argued that the Sixth Amendment should likewise extend to criminal forfeitures under a formal application of Southern Union.

Criminal forfeitures, however, draw from a distinct, complex, and largely unexplored historical tradition in which juries played little or no role. This Article, the first to provide a definitive account of that tradition, explains why the unique history of criminal forfeiture dictates that facts supporting forfeiture need not be found by a jury under the Sixth Amendment, insofar as those facts are not the sort traditionally given to juries at common law.