Criminal justice practitioners understand that ‘‘joint and several liability’’ stands for the common proposition that each co-conspirator should be equally responsible for all provable losses the conspiracy caused. Put another way, if a defendant lacks sufficient assets to pay an equal share of the restitution award, the other defendant(s) must make up the difference.

Assume a mortgage fraud conspiracy involves 10 participants and $2.9 million in losses to the banks. Pursuant to joint and several liability, all convicted coschemers— from the organizer who was involved in all 20 fraudulent purchases and received millions of dollars in ill-gotten gains all the way down to the hapless straw/nominee purchaser who received a few thousand dollars in proceeds—are equally responsible for paying the entire loss back to the victims. Moreover, they will all be under this obligation until the last cent has been paid.

Originally Published in the Bloomberg BNA Criminal Law Reporter - July 31, 2013.