The Supreme Court decision in Luis v. United States addresses the governments ability to seize assets from a suspect that cannot be connected to the case and specifically, that the pretrial restraint of a criminal defendant’s legitimate, untainted assets needed to retain her counsel of choice violates the Sixth Amendment.
Justice Breyer, in a 5-3 decision, wrote that,
The government can seize, …, “a robber’s loot, a drug seller’s cocaine, a burglar’s tools, or other property associated with the planning, implementing, or concealing of a crime.”
But it cannot, he said, freeze money or other assets unconnected to the crime.
The case involves a Florida woman who bilked the taxpayers for $45 million dollars in Medicare reimbursements for “unneeded or nonexistent” services. A lower court seized assets unrelated to the fraud. The Supreme Court has ruled that this is illegal under the sixth amendment right to the assistance of counsel. The states interest in recovering lost money shall not supersede a defendant’s right to first fund their defense.
Justice Breyer, in writing for the majority points out that, (pg 12-13)
Blackstone wrote that “only” those “goods and chattels” that “a man has at the time of conviction shall be forfeited.” 4 W. Blackstone, Commentaries on the Laws of England 388 (1765) (emphasis added); see 1 J. Chitty, Practical Treatise on the Criminal Law 737 (1816) (“[T]he party indicted may sell any of [his property] . . . to assist him in preparing for his defense on the trial”). Describing the common law as understood in 19th century America (which recognized a broader right to counsel), Justice Story wrote:
“It is well known, that at the common law, in many cases of felonies, the party forfeited his goods and chattels to the crown. The forfeiture . . . was a part, or at least a consequence, of the judgment of conviction. It is plain from this statement, that no right to the goods and chattels of the felon could be acquired by the crown by the mere commission of the offense; but the right attached only by the conviction of the offender. . . . In the contemplation of the common law, the offender’s right was not divested until the conviction.” The Palmyra, 12 Wheat. 1, 14 (1827). See generally Powell, supra, at 60–61 (describing the scope of the right to counsel in 18th-century Britain and colonial America).
As we have explained, supra, at 6–10, cases such as Caplin & Drysdale and Monsanto permit the Government to freeze a defendant’s assets pretrial, but the opinions in those cases highlight the fact that the property at issue was “tainted,” i.e., it did not belong entirely to the defendant. We have found no decision of this Court authorizing unfettered, pretrial forfeiture of the defendant’s own “innocent” property—property with no connection to the charged crime. Nor do we see any grounds for distinguishing the historic preference against preconviction forfei- 14 LUIS v. UNITED STATES Opinion of BREYER, J. tures from the preconviction restraint at issue here. As far as Luis’ Sixth Amendment right to counsel of choice is concerned, a restraining order might as well be a forfeiture; that is, the restraint itself suffices to completely deny this constitutional right.
There are excellent arguments on both sides of the decision and an interesting mix of support all around. Kennedy, Alito, and Kagen, in dissent, (another look at Kagen’s dissent here) express shared concerns regarding the sophisticated criminal who spends their ill gotten gains knowing (thanks to this decision) that other unconnected assets may not be seized as compensation.
This decision a win for the sixth-amendment and has upside for asset forfeiture reform. The direction the court has gone sends a signal to the states to consider how they handle this activity. That does not mean the states will listen. But then, it is our job to make sure they hear it.