NCJ Number
129952
Journal
New England Journal on Criminal and Civil Confinement Volume: 16 Issue: 2 Dated: (Summer 1990) Pages: 295-314
Date Published
1990
Length
20 pages
Annotation
Two recent United States Supreme Court decisions have upheld the application of the asset forfeiture provisions of the Continuing Criminal Enterprise Act to attorneys' fees, thereby unconstitutionally limiting the accused person's right to counsel of choice.
Abstract
In Caplin and Drysdale v. United States, the Court ruled that seizing an accused person's assets does not violate any sixth amendment protections, even if the seizure should leave the accused person with no money for attorney's fees. Similarly, in United States v. Monsanto, the Court held that the fifth amendment does not prohibit seizing the accused person's assets before trial. The Court held that the money intended to pay counsel did not belong to the defendant, but the analogy with a bank robbery is inaccurate. The "important governmental objectives" noted by the Court also did not meet the "necessary and compelling" rationale required to abridge a fundamental right. The Court's interpretation will increase the incentive to prosecutors to abuse the law and will also create some circumstances in which the defendant may not be able to obtain any counsel at all. Forcing a defendant to rely on appointed counsel has been ruled improper by at least one lower court. Protection against government encroachment on basic rights is essential. 180 footnotes