Sixth Amendment
Luis v. United States
Criminal forfeiture has in recent decades emerged as a formidable weapon in the prosecutorâs 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 forfeitureâs 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 âthe accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.â U.S. Const. amend. VI. In United States v. Gonzales-Lopez, 548 U.S. 140 (2006), the Court recognized that the âroot meaningâ of the right to counsel is â[t]he right to select counsel of oneâs choice.â Id. at 147â48 (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 âuntainted,â funds on reasonable attorneyâs 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 âunleash[ing] a principle of constitutional law that would have no obvious stopping place.â3×3. Id. at 1094 (plurality opinion). This limitationâs practical import, however, will turn on how judges put Luisâs 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 10â11, 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 âbill[] for services that were not medically necessary or actually provided.â5×5. 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 Luisâs assets under 18 U.S.C. § 1345,6×6. Id. at 1103â04. which authorizes restraining a defendantâs property that is âobtained as a result ofâ or âtraceable toâ federal healthcare offenses, or else âproperty of equivalent value.â7×7. 18 U.S.C. § 1345(a)(2) (2012).
The district court granted a preliminary injunction to restrain Luisâs assets up to the amount of the allegedly improper payments8×8. United States v. Luis, 966 F. Supp. 2d 1321, 1327â28, 1335 (S.D. Fla. 2013). â which far exceeded the $2 million in assets that Luis then actually possessed9×9. Luis, 136 S. Ct. at 1087â88 (plurality opinion). Prosecutors alleged that Luis had successfully dissipated most of the Medicare proceeds, using the funds âto purchase luxury items, real estate, [and] automobilesâ and transferring sums to family members. Luis, 966 F. Supp. 2d at 1327. â and included in the restraint an âunquantified amountâ of assets that the parties had stipulated were ânot connected to the indictment.â10×10. Joint Appendix, supra note 4, at 161. It rejected Luisâs argument that the âthe Sixth Amendment requires the release of funds to pay attorneyâs fees,â11×11. Luis, 966 F. Supp. 2d at 1330. citing the Supreme Courtâs previous declaration that â[a] defendant has no Sixth Amendment right to spend another personâs money for services rendered by an attorney.â12×12. Id. at 1334 (alteration in original) (quoting Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 626 (1989)). Although the district court had âdiscretion to release assets for payment of attorneyâs fees,â it declined to exercise that discretion because Luis had thus far been ârepresented . . . by competent counselâ 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 Luisâs 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. Appâx 493, 493â94 (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 Breyer15×15. 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 1089â90 (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 attorneyâs 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 defendantâs assets does not give rise to a constitutional violation so long as it is âbased on a finding of probable cause to believe that the assets are forfeitable.â20×20. Id. at 615. In Justice Breyerâs view, however, the holdings in both cases ârelied critically upon the fact that the property at issue was âtainted.ââ21×21. Luis, 136 S. Ct. at 1090 (plurality opinion). The difference between a defendantâs tainted and untainted assets was crucial: it was âthe difference between what is yours and what is mine.â22×22. Id. at 1091. While the ârobberâs loot belongs to the victim,â untainted assets âbelong[] to the defendant, pure and simple.â23×23. Id. at 1090.
The plurality acknowledged that this distinction did not by itself resolve the constitutional issue, observing that âthe law of property sometimes allows a person without a present interest in a piece of property to impose restrictions upon a current owner.â24×24. Id. at 1092â93. But it put forward three rationales that militated in favor of carving out an attorneyâs-fees exception to the pretrial restraint of untainted assets. First and most crucially, âthe Governmentâs contingent interest in securing its punishment of choiceâ and âthe victimsâ interest in securing restitution,â while important, âseem[ed] to lie somewhat further from the heart of a fair, effective criminal justice systemâ than the defendantâs âfundamentalâ 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 Courtâs precedents indicated support for depriving a defendant of her âinnocentâ property prior to conviction.26×26. Id. at 1093â94. 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 âbroad range of [illegal] behavior,â27×27. Id. at 1094. thus âerod[ing] the right to counsel.â28×28. Id. In a part of the plurality opinion that drew considerable media attention, Justice Breyer rejected the principal dissentâs suggestion that it was sufficient for defendants whose access to funds was cut off to âfall back upon publicly paid counsel,â id. at 1095, which he described as often âoverworked and underpaid,â 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 âprove workable.â29×29. Luis, 136 S. Ct. at 1095 (plurality opinion). Although it would sometimes be âdifficultâ to determine whether a defendantâs funds were tainted because âmoney is fungible,â 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 âreasonable attorneysâ fees,â id., thus preventing defendants from evading forfeiture and frustrating attempts at securing restitution through gratuitously racking up legal fees, see id. at 1095â96.
Justice Thomas concurred in the judgment. In contrast to the plurality, he would have held that âthe Sixth Amendmentâs text and common-law backdropâ preclude any pretrial freeze of a defendantâs untainted assets.31×31. Id. at 1096 (Thomas, J., concurring in the judgment). In Justice Thomasâs view, âconstitutional rights necessarily protect the prerequisites for their exercise.â32×32. Id.; cf. id. at 1097 (âThe right to keep and bear arms, for example, âimplies a corresponding right to obtain the bullets necessary to use themâ . . . .â (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 âat least some of a defendantâs assetsâ from being seized before trial.33×33. Id. at 1098. But rather than relying on a âpiecemeal approachâ like the pluralityâs 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 âclear line between tainted and untainted assetsâ 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 âabandon[ing] the principle established in Caplin & Drysdale and Monsanto.â36×36. Luis, 136 S. Ct. at 1112 (Kennedy, J., dissenting). In those decisions, the Court had found âa 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.â37×37. Id. at 1104â05 (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 pluralityâs distinction between tainted and untainted assets as resting on the unfounded âkey premiseâ 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) (âIndeed, the pluralityâs use of the word âtaintedâ . . . makes an unwarranted assumption about the defendantâs guilt.â). 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 Kennedyâs dissent additionally argued that just as the governmentâs âinterest in ensuring Luisâ presence at trialâ could âjustify . . . pretrial detention,â so too did its âinterest in ensuring the availability of her substitute assets after trial . . . justify pretrial restraint.â Id.
The principal dissent also warned that limiting pretrial freezes to untainted assets would âcreate[] arbitrary distinctions between defendants.â40×40. Id. at 1109. Because money is fungible, the law should not treat differently âa 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.â41×41. Id. Drawing a hypothetical of a thief with two bank accounts, one containing stolen money and the other containing an equal amount of money âwon in the lottery,â Justice Kennedy argued that under the pluralityâs 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 defendantâs tainted and untainted assets, the plurality would âreward[] criminals who hurry to spend, conceal, or launder stolen property.â43×43. Id. Moreover, that distinction would benefit those âsophisticated criminals who know how to make criminal proceeds look untainted . . . [by] disguis[ing] the origins of their funds.â44×44. Id. at 1109.
Justice Kagan briefly dissented, stating that she found âtroublingâ Monsantoâs principle that the government could restrain a defendantâs assets before trial upon a mere showing of probable cause.45×45. Id. at 1112 (Kagan, J., dissenting). Still, because Luis â[had] not asked [the] Court either to overrule or to modifyâ that holding, Justice Kagan agreed with the principal dissent that Monsanto controlled the case: prior to conviction, when âthe presumption of innocence still applies,â46×46. Id. (quoting Kaley v. United States, 134 S. Ct. 1090, 1096 (2014)). the governmentâs legal interest in a defendantâs tainted or untainted property is âexactly the same.â47×47. 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 âeffort to cabinâ that holding,49×49. Id. the extent to which the pluralityâs 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 âa robberâs loot, a drug sellerâs cocaine, [or] a burglarâs tools,â50×50. Id. at 1090 (plurality opinion). it is conceivable that Luisâs result will ultimately do little to prevent asset freezes from undermining the right to counsel in most cases. If so, Luisâs fractured set of opinions suggests that the Court will likely revisit the issue to reckon fully with Monsantoâs broader affirmation of the constitutionality of pretrial asset restraint.
Luis brings to the fore the core unease that ran through the dissents in the Courtâs previous pretrial restraint decisions: âthat it is unseemly and unjust for the Government to beggar those it prosecutes in order to disable their defense at trial.â51×51. 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) (âThe 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.â). Permitting the restraint of even a defendantâs legitimate assets prior to conviction would âundermine the criminal justice systemâs integrityâ52×52. 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 systemâs general presumption of innocence.53×53. See Luis, 136 S. Ct. at 1112â13 (Kagan, J., dissenting). Moreover, the pluralityâs emphasis on the need for a constitutional âstopping placeâ to prevent Congress from authorizing the pretrial restraint of substitute assets for expansive swaths of illegal conduct54×54. 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 âforceful[ly] . . . rejecting so-called âbeach-headâ prosecutions that flow from overly expansive and clever readings of federal lawsâ).
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 defendantâs access to untainted funds to pay for an attorney will depend less on prosecutorsâ estimates of the amount that would be forfeitable upon conviction, âestimates [that] can be wildly exaggerated by the use of faulty extrapolation techniques.â56×56. 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) (âForfeiture amounts calculated under the governmentâs view . . . may consist almost entirely of amounts that the defendant has never obtained.â). For a widely publicized example of an attempt by federal prosecutors to restrict defendantsâ 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 Luisâs rule, the government would at least have to leave him with enough âto pay a reasonable fee for the assistance of counsel.â58×58. Id. at 1096. In that sense, the distinction that Luis establishes between tainted and untainted assets could go some way toward alleviating the Courtâs concern over freezing assets âbased on nothing more than âprobable cause.ââ59×59. Id. at 1112 (Kagan, J., dissenting) (quoting United States v. Monsanto, 491 U.S. 600, 615 (1989)). Defendantsâ access to funds, however, will still depend on what courts deem to be âa reasonable fee for the assistance of counsel.â 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 courtsâ experience at assessing attorney costs might not carry over well to the question of âwhat constitutes a âreasonableâ amount of a defendantâs own money she can spend on her own defenseâ).
Both the plurality opinion and the principal dissent readily recognized that putting into action Luisâs broad constitutional command â that the government must abide by the âdifference between what is yours and what is mineâ60×60. Luis, 136 S. Ct. at 1091 (plurality opinion). â will depend on the practical capacity of the lower courts to determine whether a defendantâs assets are tainted or instead legitimately obtained.61×61. See id. at 1095; id. at 1110â11 (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 Luisâs 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 defendantâs 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 Luisâs 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 âclearâ 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 âbecome tainted by its unlawful use,â 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 âfar outpac[ing] criminal forfeiture,â 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 â and abuse â 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 governmentâs reach over a defendantâs assets can resort not only to a proceeds theory, which covers the âfruitsâ 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 âinstrumentalitiesâ of a crime become subject to forfeiture.66×66. Stefan D. Cassella, Overview of Asset Forfeiture Law in the United States, 55 U.S. Attorneysâ Bull., Nov. 2007, at 8, 11 (explaining that â[m]any . . . statutes authorize the forfeiture of âfacilitating propertyââ); see id. at 9 (describing law enforcementâs forfeiture authority over âonly the proceeds of the offenseâ in some areas, but over both the proceeds and âany property âinvolvedâ in the offenseâ in others).
Although âcourts have developed no clear criteria for defining facilitation,â67×67. Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug Warâs Hidden Economic Agenda, 65 U. Chi. L. Rev. 35, 45 (1998) (â[T]he various tests used by different courts to define facilitation â âactive aid,â âsome substantial connection toâ a transaction, making a transaction âless difficultâ â âmerely beg the question posed by the statutory language, rather than answering it.ââ 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 âmake[s] the prohibited conduct âless difficult or âmore or less free from obstruction or hindrance.âââ68×68. 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 âfacilitating.â Courts have upheld the forfeiture of defendantsâ otherwise-legitimate businesses, for example, by reasoning that they âprovided a âcoverââ 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. (âA 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 claimantâs jewelry had facilitated drug dealing by âenhanc[ing] his status in the drug community.ââ (quoting id. at 123) (second alteration in original)). Similarly, prosecutors in some jurisdictions can rely on facilitation as a theory to tactically âsidestep the potentially onerous tracing requirement[s]â in the context of commingled accounts70×70. 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]. â instead only needing to establish that the âlegitimate, clean money . . . ha[s] facilitated the concealment of the illegal, dirty money.â71×71. Brian Fork, Comment, The Federal Seizure of Attorneysâ 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) (âUnder [a] broad [interpretation of facilitation] theory, a single illegal dollar in an account would permanently taint the entire balance in that account.â). But, here too, other courts disagree. See Gordon, supra note 69, at 762 (âJudge Easterbrook specifically disapproved . . . , asserting that âthe presence of one illegal dollar in an account does not taint the rest â as if the dollar obtained from fraud were like a drop of ink falling into a glass of water.ââ (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, 861â65 (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 Luisâs 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 â properties that the parties had stipulated were purchased with untainted funds â on the basis that âtaxes [for the properties] were paid with accounts which Medicare money flowed through.â74×74. 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 âjudge-made [constitutional] procedural rule,â Luisâs 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) (ââConsiderations in favor of stare decisisâ are at their weakest in cases âinvolving procedural . . . rules.ââ (quoting Payne v. Tennessee, 501 U.S. 808, 828 (1991))). Moreover, its tentative feel is considerably exacerbated by both Justice Thomasâs expansive interpretation of the scope of the right to counsel (which provided the fifth vote for Luis) and Justice Kaganâs assertion of Monsantoâs âtroublingâ 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 Kaganâs opinion as âopenly invit[ing] future petitioners to make broader arguments and to challenge all pretrial orders freezing assets needed to retain counselâ). And even the plurality was candid that its conclusion stemmed partly from a pragmatic desire to craft a âstopping placeâ for the scope of pretrial restraint77×77. Luis, 136 S. Ct. at 1094 (plurality opinion). â with its attendant risks to a defendantâs rights â rather than a resolute commitment to the taintedâuntainted distinction as a constitutional principle. Justice Breyerâs opinion thus justified the result on the basis of functionalist considerations78×78. See, e.g., id. at 1095 (â[A]ccepting the Governmentâs views would â by increasing the government-paid-defender workload â render less effective the basic right the Sixth Amendment seeks to protect.â); cf. Cass R. Sunstein, Justice Breyerâs Democratic Pragmatism, 115 Yale L.J. 1719, 1720 (2006) (book review) (describing Justice Breyer as âinsist[ing] on evaluating traditional doctrines not in a vacuum, but in light of the concrete effects . . . on the real worldâ). â specifically, how to balance the competing interests to better achieve a âfair, effective criminal justice system.â79×79. Luis, 136 S. Ct. at 1093 (plurality opinion).
That approach does not lead inexorably to the conclusion that the proper constitutional bound is the defendantâs untainted assets. On the contrary, much of the pluralityâs reasoning could easily be repurposed to create an exception for reasonable attorneyâs fees for all of a defendantâs assets â that is, to overrule Monsanto rather than merely âcabinâ it.80×80. Id. at 1113 (Kagan, J., dissenting). For example, after weighing the âfundamentalâ 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, âthe interests in obtaining payment of a criminal forfeiture . . . order [do not] enjoy constitutional protection.â81×81. Id. at 1093 (plurality opinion). Likewise, the pluralityâs concern that a defendantâs access to the counsel of her choice could be hamstrung by the âsteepâ 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 ârelevant legal traditionâ that âsignificant[ly] support[s]â the pretrial restraint of untainted assets. Id. at 1093. But that statement also holds true with regard to criminal forfeiture generally, a âdisfavoredâ 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) (âThe use of criminal forfeiture . . . represents an innovative attempt to call on our common law heritage to meet an essentially modern problem.â). 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 â 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, 430â31 (6th Cir. 2008). But lacking any such explicit command in Justice Breyerâs opinion, prosecutors can counter that the pluralityâs stated deference to the âexperienceâ of the lower courts84×84. 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 Luisâs distinction between tainted and untainted assets turn out in practice to be little distinction at all, then further â and possibly wholesale â revision of the constitutionality of pretrial asset restraint could well be in the cards.
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