Frozen Assets and the Sixth Amendment

Earlier this week, the Supreme Court held that the state could not freeze assets before a conviction if 1)the assets were not obtained through criminal activity and 2)were needed to pay a lawyer.

A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. SThose assets include: (1) property “obtained as a result of” the crime, (2) property “traceable” to the crime, and (3) other “property of equivalent value.” In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her from paying her lawyer. She claims that insofar as it does so, it violates her Sixth Amendment “right . . . to have the Assistance of Counsel for [her] defence.” We agree.

Evidently, this is a narrow ruling — the class of criminal defendants who will have enough legally obtained assets to pay their counsel of choice is relatively small, although it could be expected to be larger for the crimes covered by this statute. A more interesting question is whether the Supreme Court might start taking a look at the horrible abuses of civil forfeiture that are becoming increasingly common. Kagan’s dissent suggests that the controlling precedent should be overruled but applied it because the defendant did ask for it to be, but doesn’t take it further than the right to counsel. Milhiser has more.

In other news, is it just me, or is Justice Thomas strongly implying in his concurrence that Gideon v. Wainwright was wrongly decided? Ah, originalism.