Abstract

Kleptocracy, literally meaning “rule by thieves,” is a major destabilizing force in an already unstable world. Every year, corrupt government officials plunder billions of dollars rightfully belonging to their citizens and export them overseas. When these funds—often parked in luxury assets—reach the United States, federal prosecutors can seize them using a procedure known as nonconviction-based forfeiture. But after every such seizure, a question arises: How does the United States give stolen assets back to whom they belong? The United Nations Convention Against Corruption strongly encourages (or, in some circumstances, requires) forfeited assets to be returned to their state of origin or prior legitimate owners. Accordingly, the United States Department of Justice often executes sharing agreements with cooperating states. But asset return proves a more formidable challenge when the forfeiture was executed at the behest of a victim state whose government would likely misappropriate the assets again. This Note proposes a new type of fund, modeled on the charitable trust, that could provide an alternative mechanism to return assets in those cases. Depositing the assets in an independently managed trust would relieve the Justice Department of the administrative burden of managing a complex return and would bypass sovereigns to ensure benefits from the stolen assets accrue to the citizens to whom they belong.

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