Criminal forfeiture has in recent decades emerged as a formidable weapon in the prosecutor’s arsenal. To its supporters, it is an effective tool not only to punish and deter crime, but also to provide restitution for victims and fund law enforcement. Pretrial asset restraint, by preventing criminal defendants from dissipating their property during the course of prosecution, helps to achieve forfeiture’s objectives. But such asset freezes can prevent defendants from obtaining legal representation of their choice, thus implicating their Sixth Amendment right to counsel.^1×1. The Sixth Amendment guarantees that “the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. In United States v. Gonzales-Lopez, 548 U.S. 140 (2006), the Court recognized that the “root meaning” of the right to counsel is “[t]he right to select counsel of one’s choice.” Id. at 147–48 (emphasis added). Last Term, in Luis v. United States,^2×2. 136 S. Ct. 1083 (2016). the Supreme Court held that criminal defendants have a right to spend their legitimately obtained, or “untainted,” funds on reasonable attorney’s fees. In drawing a line between tainted and untainted assets, the Court sought to mark a functional outer boundary on the scope of pretrial restraint and, in so doing, to avoid “unleash[ing] a principle of constitutional law that would have no obvious stopping place.”^3×3. Id. at 1094 (plurality opinion). This limitation’s practical import, however, will turn on how judges put Luis’s distinction into action: that is, how they separate what is tainted from what is not. Precedent suggests that lower courts could adopt an expansive definition of tainted property and in practice erase the constitutional safeguard that the Court sought to impose.

Sila Luis owned and operated two Miami-based healthcare companies that provided home care and physical therapy services.^4×4. Joint Appendix at 10–11, Luis, 136 S. Ct. 1083 (No. 14-419). In 2012, she was charged with paying kickbacks and conspiring to commit healthcare fraud by using her companies to “bill[] for services that were not medically necessary or actually provided.”^5×5. Luis, 136 S. Ct. at 1103 (Kennedy, J., dissenting). Prosecutors alleged that these actions resulted in improper Medicare payments of $45 million and sought, in a concurrent civil action, to freeze Luis’s assets under 18 U.S.C. § 1345,^6×6. Id. at 1103–04. which authorizes restraining a defendant’s property that is “obtained as a result of” or “traceable to” federal healthcare offenses, or else “property of equivalent value.”^7×7. 18 U.S.C. § 1345(a)(2) (2012).

The district court granted a preliminary injunction to restrain Luis’s assets up to the amount of the allegedly improper payments^8×8. United States v. Luis, 966 F. Supp. 2d 1321, 1327–28, 1335 (S.D. Fla. 2013). — which far exceeded the $2 million in assets that Luis then actually possessed^9×9. Luis, 136 S. Ct. at 1087–88 (plurality opinion). Prosecutors alleged that Luis had successfully dissipated most of the Medicare proceeds, using the funds “to purchase luxury items, real estate, [and] automobiles” and transferring sums to family members. Luis, 966 F. Supp. 2d at 1327. — and included in the restraint an “unquantified amount” of assets that the parties had stipulated were “not connected to the indictment.”^10×10. Joint Appendix, supra note 4, at 161. It rejected Luis’s argument that the “the Sixth Amendment requires the release of funds to pay attorney’s fees,”^11×11. Luis, 966 F. Supp. 2d at 1330. citing the Supreme Court’s previous declaration that “[a] defendant has no Sixth Amendment right to spend another person’s money for services rendered by an attorney.”^12×12. Id. at 1334 (alteration in original) (quoting Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 626 (1989)). Although the district court had “discretion to release assets for payment of attorney’s fees,” it declined to exercise that discretion because Luis had thus far been “represented . . . by competent counsel” and, if she could not afford an attorney for the criminal case, counsel would be appointed to represent her.^13×13. Id. at 1335.

In an unpublished per curiam opinion, the Eleventh Circuit affirmed the preliminary injunction, holding similarly that Supreme Court precedent foreclosed Luis’s claim that the Sixth Amendment required that she be allowed to use her untainted assets to hire counsel.^14×14. See United States v. Luis, 564 F. App’x 493, 493–94 (11th Cir. 2014) (per curiam). The panel consisted of Judges Martin and Dubina and Judge Sentelle of the D.C. Circuit, sitting by designation.

The Supreme Court reversed. Writing for a plurality, Justice Breyer^15×15. Justice Breyer was joined by the Chief Justice and Justices Ginsburg and Sotomayor. began by distinguishing the assets at issue in Luis from the assets the Court had addressed in its previous criminal forfeiture decisions.^16×16. See Luis, 136 S. Ct. at 1089–90 (plurality opinion). In Caplin & Drysdale, Chartered v. United States,^17×17. 491 U.S. 617 (1989). the Court held that the right to counsel does not prohibit the postconviction forfeiture of assets, even if those assets are needed to pay attorney’s fees.^18×18. Id. at 619, 632. And in United States v. Monsanto,^19×19. 491 U.S. 600 (1989). handed down the same day, it extended that principle to the practice of pretrial restraint: freezing a defendant’s assets does not give rise to a constitutional violation so long as it is “based on a finding of probable cause to believe that the assets are forfeitable.”^20×20. Id. at 615. In Justice Breyer’s view, however, the holdings in both cases “relied critically upon the fact that the property at issue was ‘tainted.’”^21×21. Luis, 136 S. Ct. at 1090 (plurality opinion). The difference between a defendant’s tainted and untainted assets was crucial: it was “the difference between what is yours and what is mine.”^22×22. Id. at 1091. While the “robber’s loot belongs to the victim,” untainted assets “belong[] to the defendant, pure and simple.”^23×23. Id. at 1090.

The plurality acknowledged that this distinction did not by itself resolve the constitutional issue, observing that “the law of property sometimes allows a person without a present interest in a piece of property to impose restrictions upon a current owner.”^24×24. Id. at 1092–93. But it put forward three rationales that militated in favor of carving out an attorney’s-fees exception to the pretrial restraint of untainted assets. First and most crucially, “the Government’s contingent interest in securing its punishment of choice” and “the victims’ interest in securing restitution,” while important, “seem[ed] to lie somewhat further from the heart of a fair, effective criminal justice system” than the defendant’s “fundamental” right to counsel.^25×25. Id. at 1093. Second, there was no historical tradition of restraining untainted assets before trial: neither the common law nor the Court’s precedents indicated support for depriving a defendant of her “innocent” property prior to conviction.^26×26. Id. at 1093–94. And third, without some constitutional limitation on pretrial asset restraint, nothing would otherwise prevent Congress from authorizing the restraint of sizable amounts of untainted, substitute assets in connection with a “broad range of [illegal] behavior,”^27×27. Id. at 1094. thus “erod[ing] the right to counsel.”^28×28. Id. In a part of the plurality opinion that drew considerable media attention, Justice Breyer rejected the principal dissent’s suggestion that it was sufficient for defendants whose access to funds was cut off to “fall back upon publicly paid counsel,” id. at 1095, which he described as often “overworked and underpaid,” id. See, e.g., Matt Ford, A Near-Epiphany at the Supreme Court, The Atlantic (Mar. 30, 2016), http://www.theatlantic.com/politics/archive/2016/03/a-near-epiphany-at-the-supreme-court/476037 [https://perma.cc/A2AD-QXKT].

Before concluding, Justice Breyer expressed optimism that the distinction drawn by the plurality would “prove workable.”^29×29. Luis, 136 S. Ct. at 1095 (plurality opinion). Although it would sometimes be “difficult” to determine whether a defendant’s funds were tainted because “money is fungible,” Justice Breyer maintained that the law had developed tracing rules to help courts make these distinctions.^30×30. Id. In a similar vein, Justice Breyer stated that courts had developed experience to determine what would constitute “reasonable attorneys’ fees,” id., thus preventing defendants from evading forfeiture and frustrating attempts at securing restitution through gratuitously racking up legal fees, see id. at 1095–96.

Justice Thomas concurred in the judgment. In contrast to the plurality, he would have held that “the Sixth Amendment’s text and common-law backdrop” preclude any pretrial freeze of a defendant’s untainted assets.^31×31. Id. at 1096 (Thomas, J., concurring in the judgment). In Justice Thomas’s view, “constitutional rights necessarily protect the prerequisites for their exercise.”^32×32. Id.; cf. id. at 1097 (“The right to keep and bear arms, for example, ‘implies a corresponding right to obtain the bullets necessary to use them’ . . . .” (quoting Jackson v. City and County of San Francisco, 746 F.3d 953, 967 (9th Cir. 2014) (internal quotation marks omitted))). Ensuring a meaningful right to counsel of choice in turn requires protecting “at least some of a defendant’s assets” from being seized before trial.^33×33. Id. at 1098. But rather than relying on a “piecemeal approach” like the plurality’s balancing test to resolve what sort of pretrial restraints are constitutionally permissible, Justice Thomas argued that it was preferable to read the Sixth Amendment as tracking the “clear line between tainted and untainted assets” that existed at common law.^34×34. Id. at 1099.

Justice Kennedy dissented.^35×35. Justice Kennedy was joined by Justice Alito. He charged the plurality with “abandon[ing] the principle established in Caplin & Drysdale and Monsanto.”^36×36. Luis, 136 S. Ct. at 1112 (Kennedy, J., dissenting). In those decisions, the Court had found “a strong governmental interest in obtaining full recovery of all forfeitable assets, an interest that overrides any Sixth Amendment interest in permitting criminals to use assets adjudged forfeitable to pay for their defense.”^37×37. Id. at 1104–05 (quoting Caplin & Drysdale, Chartered. v. United States, 491 U.S. 617, 631 (1989)). In Luis, that interest was no less strong. Justice Kennedy rejected the plurality’s distinction between tainted and untainted assets as resting on the unfounded “key premise” that the government possessed a superior ownership interest in the former prior to trial.^38×38. Id. at 1106; see also id. at 1112 (Kagan, J., dissenting) (“Indeed, the plurality’s use of the word ‘tainted’ . . . makes an unwarranted assumption about the defendant’s guilt.”). The two ownership interests were instead the same: the government took title to both types of assets upon, but not prior to, conviction.^39×39. See id. at 1106 (Kennedy, J., dissenting). Justice Kennedy’s dissent additionally argued that just as the government’s “interest in ensuring Luis’ presence at trial” could “justify . . . pretrial detention,” so too did its “interest in ensuring the availability of her substitute assets after trial . . . justify pretrial restraint.” Id.

The principal dissent also warned that limiting pretrial freezes to untainted assets would “create[] arbitrary distinctions between defendants.”^40×40. Id. at 1109. Because money is fungible, the law should not treat differently “a defendant who has preserved his or her own assets by spending stolen money and a defendant who has spent his or her own assets and preserved stolen cash instead.”^41×41. Id. Drawing a hypothetical of a thief with two bank accounts, one containing stolen money and the other containing an equal amount of money “won in the lottery,” Justice Kennedy argued that under the plurality’s distinction the thief would have a right to use his funds to retain an attorney if he had spent the stolen money, but would have no such right if he had instead spent his lottery winnings.^42×42. Id. at 1103. Thus, by carving a line between a defendant’s tainted and untainted assets, the plurality would “reward[] criminals who hurry to spend, conceal, or launder stolen property.”^43×43. Id. Moreover, that distinction would benefit those “sophisticated criminals who know how to make criminal proceeds look untainted . . . [by] disguis[ing] the origins of their funds.”^44×44. Id. at 1109.

Justice Kagan briefly dissented, stating that she found “troubling” Monsanto’s principle that the government could restrain a defendant’s assets before trial upon a mere showing of probable cause.^45×45. Id. at 1112 (Kagan, J., dissenting). Still, because Luis “[had] not asked [the] Court either to overrule or to modify” that holding, Justice Kagan agreed with the principal dissent that Monsanto controlled the case: prior to conviction, when “the presumption of innocence still applies,”^46×46. Id. (quoting Kaley v. United States, 134 S. Ct. 1090, 1096 (2014)). the government’s legal interest in a defendant’s tainted or untainted property is “exactly the same.”^47×47. Id.

The outcome in Luis signals a concern within the Court about the wide scope of pretrial restraint that it had previously seemed to endorse in Monsanto.^48×48. See id. at 1113. But while Luis seems to be an “effort to cabin” that holding,^49×49. Id. the extent to which the plurality’s distinction will in practice help defendants likely hinges on whether the opinion prompts lower courts to constrict already-expansive theories on which the government could evade Luis by arguing that an asset is tainted and thus subject to pretrial restraint regardless. Because what counts as tainted has grown to cover much more than traditional notions of “a robber’s loot, a drug seller’s cocaine, [or] a burglar’s tools,”^50×50. Id. at 1090 (plurality opinion). it is conceivable that Luis’s result will ultimately do little to prevent asset freezes from undermining the right to counsel in most cases. If so, Luis’s fractured set of opinions suggests that the Court will likely revisit the issue to reckon fully with Monsanto’s broader affirmation of the constitutionality of pretrial asset restraint.

Luis brings to the fore the core unease that ran through the dissents in the Court’s previous pretrial restraint decisions: “that it is unseemly and unjust for the Government to beggar those it prosecutes in order to disable their defense at trial.”^51×51. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 635 (1989) (Blackmun, J., dissenting); see also Kaley, 134 S. Ct. at 1107 (Roberts, C.J., dissenting) (“The possibility that a prosecutor could elect to hamstring his target by preventing him from paying his counsel of choice raises substantial concerns about the fairness of the entire proceeding.”). Permitting the restraint of even a defendant’s legitimate assets prior to conviction would “undermine the criminal justice system’s integrity”^52×52. Kaley, 134 S. Ct. at 1110 (Roberts, C.J., dissenting) (quoting id. at 1099 (majority opinion)). and result in deep tensions with the criminal justice system’s general presumption of innocence.^53×53. See Luis, 136 S. Ct. at 1112–13 (Kagan, J., dissenting). Moreover, the plurality’s emphasis on the need for a constitutional “stopping place” to prevent Congress from authorizing the pretrial restraint of substitute assets for expansive swaths of illegal conduct^54×54. Id. at 1094 (plurality opinion). hints that the Court might be increasingly concerned about overreach by federal prosecutors.^55×55. Cf. Jeffrey Green & Ivan Dominguez, Symposium: Federal Criminal Statutes Are Not Blank Checks for Prosecutors, SCOTUSblog (June 28, 2016, 11:44 AM), http://www.scotusblog.com/2016/06/symposium-federal-criminal-statutes-are-not-blank-checks-for-prosecutors [https://perma.cc/VC4A-8U4R] (identifying other recent Court decisions as “forceful[ly] . . . rejecting so-called ‘beach-head’ prosecutions that flow from overly expansive and clever readings of federal laws”).

Establishing a line between tainted and untainted assets could certainly create an independent bar to the most troublesome applications of pretrial restraint. With such a distinction in place, a defendant’s access to untainted funds to pay for an attorney will depend less on prosecutors’ estimates of the amount that would be forfeitable upon conviction, “estimates [that] can be wildly exaggerated by the use of faulty extrapolation techniques.”^56×56. Federal Asset Forfeiture: Hearing Before the Subcomm. on Crime, Terrorism, Homeland Sec., & Investigations of the H. Comm. on the Judiciary, 114th Cong. 78 (2015) (written statement of David B. Smith); see also United States v. Cano-Flores, 796 F.3d 83, 92 (D.C. Cir. 2015) (“Forfeiture amounts calculated under the government’s view . . . may consist almost entirely of amounts that the defendant has never obtained.”). For a widely publicized example of an attempt by federal prosecutors to restrict defendants’ access to counsel as part of a prosecution strategy, see United States v. Stein, 541 F.3d 130 (2d Cir. 2008). And as Justice Breyer observed, enabling prosecutors to freeze substitute assets is especially damaging to an innocent defendant, whose available property is necessarily untainted but might otherwise be wholly restrained as substitute assets earmarked for restitution in the event of conviction.^57×57. See Luis, 136 S. Ct. at 1095 (plurality opinion). Under Luis’s rule, the government would at least have to leave him with enough “to pay a reasonable fee for the assistance of counsel.”^58×58. Id. at 1096. In that sense, the distinction that Luis establishes between tainted and untainted assets could go some way toward alleviating the Court’s concern over freezing assets “based on nothing more than ‘probable cause.’”^59×59. Id. at 1112 (Kagan, J., dissenting) (quoting United States v. Monsanto, 491 U.S. 600, 615 (1989)). Defendants’ access to funds, however, will still depend on what courts deem to be “a reasonable fee for the assistance of counsel.” Luis, 136 S. Ct. at 1096 (plurality opinion); see Courtney Linn, Luis v. United States: What Happens Now? Casetext (Apr. 5, 2016), https://casetext.com/posts/luis-v-united-states-what-happens-now [https://perma.cc/6BWZ-RYAZ] (expressing concern that courts’ experience at assessing attorney costs might not carry over well to the question of “what constitutes a ‘reasonable’ amount of a defendant’s own money she can spend on her own defense”).

Both the plurality opinion and the principal dissent readily recognized that putting into action Luis’s broad constitutional command — that the government must abide by the “difference between what is yours and what is mine”^60×60. Luis, 136 S. Ct. at 1091 (plurality opinion). — will depend on the practical capacity of the lower courts to determine whether a defendant’s assets are tainted or instead legitimately obtained.^61×61. See id. at 1095; id. at 1110–11 (Kennedy, J., dissenting). Each contemplating the fungibility of money, Justices Breyer and Kennedy disagreed as to whether asset-tracing rules that were developed for other legal areas, like the law of trusts, could adequately implement Luis’s distinction.^62×62. See id. at 1111. This debate between the Justices touches on but fails to address head-on a more fundamental concern: Why should the fulfillment of a defendant’s constitutional right to counsel depend on the application of tracing rules that are at bottom legal fictions, particularly when those legal fictions have been developed to meet the distinctive requirements of other areas of law? And even if courts look to precedents in the criminal arena, those asset-tracing rules are likely to embody practical or policy justifications that are meaningfully different from what would be appropriate in the preconviction context.

By and large, however, the practical effect of Luis’s holding will depend less on the particular rules used to trace the flow of tainted assets than on how lower courts decide whether certain property counts as tainted in the first place. However “clear” the line between tainted and untainted might have been at common law,^63×63. See id. at 1099 (Thomas, J., concurring in the judgment). courts have since endorsed ever-expanding theories about when an asset is tainted, thus threatening to circumscribe the constitutional protection that the Luis plurality sought to provide.^64×64. For example, while civil forfeiture actions historically required forfeitable property to have “become tainted by its unlawful use,” Terrance G. Reed, On the Importance of Being Civil: Constitutional Limitations on Civil Forfeiture, 39 N.Y.L. Sch. L. Rev. 255, 259 (1994), that limitation has not prevented the practice from “far outpac[ing] criminal forfeiture,” Dick M. Carpenter II et al., Inst. for Justice, Policing for Profit 5 (2d ed. Nov. 2015), http://ij.org/wp-content/uploads/2015/11/policing-for-profit-2nd-edition.pdf [https://perma.cc/FN7S-ZCXC]. For accounts of the growing use — and abuse — of civil forfeiture, see Shaila Dewan, Police Use Department Wish List When Deciding Which Assets to Seize, N.Y. Times (Nov. 9, 2014), http://nyti.ms/1APRCrH [https://perma.cc/N5WR-LG2Q]; and Sarah Stillman, Taken, New Yorker (Aug. 12 & 19, 2013), http://www.newyorker.com/magazine/2013/08/12/taken [https://perma.cc/7BMB-KMPA]. Today, a prosecutor who seeks to broaden the government’s reach over a defendant’s assets can resort not only to a proceeds theory, which covers the “fruits” of a crime,^65×65. Luis, 136 S. Ct. at 1100 (Thomas, J., concurring in the judgment). but also to an expansive facilitation theory, whereby the “instrumentalities” of a crime become subject to forfeiture.^66×66. Stefan D. Cassella, Overview of Asset Forfeiture Law in the United States, 55 U.S. Attorneys’ Bull., Nov. 2007, at 8, 11 (explaining that “[m]any . . . statutes authorize the forfeiture of ‘facilitating property’”); see id. at 9 (describing law enforcement’s forfeiture authority over “only the proceeds of the offense” in some areas, but over both the proceeds and “any property ‘involved’ in the offense” in others).

Although “courts have developed no clear criteria for defining facilitation,”^67×67. Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug War’s Hidden Economic Agenda, 65 U. Chi. L. Rev. 35, 45 (1998) (“[T]he various tests used by different courts to define facilitation — ‘active aid,’ ‘some substantial connection to’ a transaction, making a transaction ‘less difficult’ — ‘merely beg the question posed by the statutory language, rather than answering it.’” Id. at 45 n.44 (quoting David B. Smith, Prosecution and Defense of Forfeiture Cases ¶ 3.03, at 3-13 to -14 (1995)).). some have adopted an expansive definition that includes any property that “make[s] the prohibited conduct ‘less difficult or “more or less free from obstruction or hindrance.”’”^68×68. United States v. Schifferli, 895 F.2d 987, 990 (4th Cir. 1990) (quoting United States v. 3639-2nd St., N.E., 869 F.2d 1093, 1096 (8th Cir. 1989)). Under such a definition, even an indirect connection with the crime can render property “facilitating.” Courts have upheld the forfeiture of defendants’ otherwise-legitimate businesses, for example, by reasoning that they “provided a ‘cover’” for the proscribed activity.^69×69. Jon E. Gordon, Note, Prosecutors Who Seize Too Much and the Theories They Love: Money Laundering, Facilitation, and Forfeiture, 44 Duke L.J. 744, 759 (1995) (quoting United States v. Rivera, 884 F.2d 544, 546 (11th Cir. 1989)); see also id. (“A more extreme example is United States v. One Lot Jewelry, [749 F. Supp. 118 (W.D.N.C. 1990),] in which the court held that the claimant’s jewelry had facilitated drug dealing by ‘enhanc[ing] his status in the drug community.’” (quoting id. at 123) (second alteration in original)). Similarly, prosecutors in some jurisdictions can rely on facilitation as a theory to tactically “sidestep the potentially onerous tracing requirement[s]” in the context of commingled accounts^70×70. Harry Morgan et al., SAC Civil Forfeiture Action Raises Stakes for Insider Trading, Compliance & Enforcement Rep. (Baker Botts, Hous., Tex.), Nov. 2013, http://files.bakerbotts.com/file_upload/ComplianceandEnforcementReport201311-CivilForfeitureActionAgainstSACRaisesStakes.htm [https://perma.cc/KY77-P7KN]. — instead only needing to establish that the “legitimate, clean money . . . ha[s] facilitated the concealment of the illegal, dirty money.”^71×71. Brian Fork, Comment, The Federal Seizure of Attorneys’ Fees in Criminal Forfeiture Actions and the Threat to the American System of Criminal Defense, 83 N.C. L. Rev. 205, 216 (2004); see also United States v. $3,148,884.40 U.S. Currency, 76 F. Supp. 2d 1063, 1067 (C.D. Cal. 1999) (“Under [a] broad [interpretation of facilitation] theory, a single illegal dollar in an account would permanently taint the entire balance in that account.”). But, here too, other courts disagree. See Gordon, supra note 69, at 762 (“Judge Easterbrook specifically disapproved . . . , asserting that ‘the presence of one illegal dollar in an account does not taint the rest — as if the dollar obtained from fraud were like a drop of ink falling into a glass of water.’” (quoting United States v. $448,342.85, 969 F.2d 474, 476 (7th Cir. 1992))).

Under either theory of forfeiture, once a sufficient connection to the proscribed activity has been established, property is then often subject to forfeiture without any form of proportionality analysis.^72×72. See generally Amanda Seals Bersinger, Note, Grossly Disproportional to Whose Offense? Why the (Mis)Application of Constitutional Jurisprudence on Proceeds Forfeiture Matters, 45 Ga. L. Rev. 841, 861–65 (2011). In one notable case, the Court upheld the forfeiture of an entire yacht after one marijuana cigarette was discovered onboard.^73×73. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 693 (1974) (Douglas, J., dissenting in part). Indeed, at the hearing to freeze Luis’s assets, the FBI agent in charge of the investigation suggested that the government should be able to restrain properties that Luis had acquired before commencing the alleged fraud — properties that the parties had stipulated were purchased with untainted funds — on the basis that “taxes [for the properties] were paid with accounts which Medicare money flowed through.”^74×74. Joint Appendix, supra note 4, at 156. If such sweeping reasoning becomes commonly accepted in lower courts, Luis is unlikely to provide any substantial reprieve for the accused.

But Luis is also unlikely to be the last word. As a “judge-made [constitutional] procedural rule,” Luis’s distinction between tainted and untainted assets at the preconviction stage, if ineffectual, will be prone to reassessment.^75×75. Morse v. Frederick, 551 U.S. 393, 432 (2007) (Breyer, J., concurring in the judgment in part and dissenting in part) (“‘Considerations in favor of stare decisis’ are at their weakest in cases ‘involving procedural . . . rules.’” (quoting Payne v. Tennessee, 501 U.S. 808, 828 (1991))). Moreover, its tentative feel is considerably exacerbated by both Justice Thomas’s expansive interpretation of the scope of the right to counsel (which provided the fifth vote for Luis) and Justice Kagan’s assertion of Monsanto’s “troubling” nature.^76×76. Luis, 136 S. Ct. at 1112 (Kagan, J., dissenting); see Steve Klepper, Justice Kagan Tells Criminal Defense Bar To Go Big or Go Home, Md. App. Blog (Apr. 4 2016), https://mdappblog.com/2016/04/04/justice-kagan-tells-criminal-defense-bar-to-go-big-or-go-home [https://perma.cc/B7L8-8WFM] (interpreting Justice Kagan’s opinion as “openly invit[ing] future petitioners to make broader arguments and to challenge all pretrial orders freezing assets needed to retain counsel”). And even the plurality was candid that its conclusion stemmed partly from a pragmatic desire to craft a “stopping place” for the scope of pretrial restraint^77×77. Luis, 136 S. Ct. at 1094 (plurality opinion). — with its attendant risks to a defendant’s rights — rather than a resolute commitment to the tainted–untainted distinction as a constitutional principle. Justice Breyer’s opinion thus justified the result on the basis of functionalist considerations^78×78. See, e.g., id. at 1095 (“[A]ccepting the Government’s views would — by increasing the government-paid-defender workload — render less effective the basic right the Sixth Amendment seeks to protect.”); cf. Cass R. Sunstein, Justice Breyer’s Democratic Pragmatism, 115 Yale L.J. 1719, 1720 (2006) (book review) (describing Justice Breyer as “insist[ing] on evaluating traditional doctrines not in a vacuum, but in light of the concrete effects . . . on the real world”). — specifically, how to balance the competing interests to better achieve a “fair, effective criminal justice system.”^79×79. Luis, 136 S. Ct. at 1093 (plurality opinion).

That approach does not lead inexorably to the conclusion that the proper constitutional bound is the defendant’s untainted assets. On the contrary, much of the plurality’s reasoning could easily be repurposed to create an exception for reasonable attorney’s fees for all of a defendant’s assets — that is, to overrule Monsanto rather than merely “cabin” it.^80×80. Id. at 1113 (Kagan, J., dissenting). For example, after weighing the “fundamental” right to counsel as more important in this context than the countervailing interests in punishment and restitution, Justice Breyer implied that this determination would hold true even if it meant no recovery if a conviction followed. After all, “the interests in obtaining payment of a criminal forfeiture . . . order [do not] enjoy constitutional protection.”^81×81. Id. at 1093 (plurality opinion). Likewise, the plurality’s concern that a defendant’s access to the counsel of her choice could be hamstrung by the “steep” fines and restitution that a prosecutor can seek to recover (and thus restrain before trial) could equally apply to criminal defendants across the board.^82×82. Id. at 1094. Lastly, Justice Breyer noted that there is no “relevant legal tradition” that “significant[ly] support[s]” the pretrial restraint of untainted assets. Id. at 1093. But that statement also holds true with regard to criminal forfeiture generally, a “disfavored” practice that has been reintroduced only in recent decades. Reed, supra note 64, at 265; see also S. Rep. No. 91-617, at 79 (1969) (“The use of criminal forfeiture . . . represents an innovative attempt to call on our common law heritage to meet an essentially modern problem.”). In other words, it is unclear why even allegedly tainted assets are necessarily freezable, given the constitutional mandates the plurality emphasized.

Of course, it is conceivable that the Luis plurality will be taken by lower courts as insisting on a meaningful limitation to asset freezes before trial — a signal that prompts them to cut back, rather than fall back, on the expansive definition of tainted property that has snowballed in tandem with the practice of forfeiture as a whole.^83×83. One possible indication of a preexisting inclination to cut back is that, with the exception of the Fourth Circuit, each of the circuit courts had concluded that the main criminal forfeiture statute, 21 U.S.C. § 853(e) (2012), did not authorize the pretrial restraint of substitute assets. See, e.g., United States v. Parrett, 530 F.3d 422, 430–31 (6th Cir. 2008). But lacking any such explicit command in Justice Breyer’s opinion, prosecutors can counter that the plurality’s stated deference to the “experience” of the lower courts^84×84. Luis, 136 S. Ct. at 1095 (plurality opinion). manifests acquiescence to the expansive definitions of asset taint and other background features of existing forfeiture law. Should Luis’s distinction between tainted and untainted assets turn out in practice to be little distinction at all, then further — and possibly wholesale — revision of the constitutionality of pretrial asset restraint could well be in the cards.