Sixth Amendment: Applicability of Right to Counsel of Choice to Forfeiture of Attorneys' Fees

• NCJ Number: 123628
• Journal: Journal of Criminal Law and Criminology Volume: 80 Issue: 4 Dated: (Winter 1990) Pages: 1154-1189
• Author(s): M Hardy
• Date Published: 1990
• Length: 36 pages
• Publication Format: Document
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America
• Note: *This document is currently unavailable from NCJRS.

Annotation

This analysis of the United States Supreme Court's 1989 decisions regarding the effects on the right to counsel of the criminal forfeiture provisions of the Comprehensive Forfeiture Act (CFA) concludes that the law should be amended to assure that defendants can exercise this right.

Abstract

CFA consists of the forfeiture provisions that are parts of both the Racketeering Influenced and Corrupt Organizations Act (RICO) and the Continue Criminal Enterprise (CCE) statute. In its decisions in the United States v. Monsanto and Caplin and Drysdale, Chartered v. United States, the Supreme Court held that these provisions do not exempt attorneys' fees from assets subject to criminal forfeiture and that the forfeiture of these assets is therefore constitutional. This decision suggests that the right to counsel is of minimal significance. Instead, the Court is placing increasing emphasis on the right to effective assistance of counsel, which is almost impossible to prove. A Fifth Amendment challenge may succeed, but legislation to define lawyers who do not engage in fraudulent transactions as bona fide purchasers would be more desirable. 227 footnotes.