Government Can’t Freeze Legitimate Assets to Prevent Defendant From Hiring a Lawyer

April 14, 2016 12:11 pm Published by

When a defendant is charged with certain types of crimes, the government can freeze his assets, even before he has been convicted.    This is almost always allowed when the assets in question were obtained through illegal conduct, such as fraud or drug sales.  But in some cases the government can seize the defendant’s innocent assets in order to have them available later for restitution or fines.  Naturally, this can interfere with the defendant’s ability to hire a lawyer. The United States Supreme Court recently ruled that the government cannot freeze innocent assets if doing so would prevent the defendant from paying a reasonable fee for a lawyer.

The case was United States v. Sila Luis.  Ms. Luis was charged with defrauding Medicare by paying kickbacks to patients in order to get them to enroll in her home healthcare companies.  The government claimed that she had illegally obtained $45 million, almost all of which she already spent by the time of her arrest.  She only had $2 million remaining under her control.  The prosecutors applied for an order to freeze this money in order to preserve it for restitution and fines.  They agreed that these assets were unrelated to the crime and would stop her from hiring the lawyer of her choosing. While a defendant has the right to hire a lawyer, the government argued that this right was outweighed by its responsibility to preserve funds for restitution.

The Supreme Court agreed that it was unconstitutional for the government to freeze innocent assets when doing so interfered with the defendant’s right to pay a “reasonable fee” to hire the lawyer of her choice.  Justice Breyer wrote an interesting dissent in which he argued that the Court’s decision created “perverse incentives” for defendants to spend stolen money before innocent money so that they would have some left to hire a lawyer.  It should also be noted that nothing in the Court’s decision changes the longstanding rule that the government can freeze non-innocent assets that were obtained through crime.

We think the Court got it right because the right to counsel is a fundamental constitutional right.  While this case only involved a particular statute, if this was allowed there is nothing to stop new statutes from being enacted, state and federal, that would expand the ability of the government to freeze assets.  If taken too far, this could make it hard for virtually any defendant to hire a lawyer.  Such rules could also easily be abused through selective enforcement to remove lawyers that the government did not want to deal with.  We do not want a system where the government, not the defendant, chooses the defense lawyer. It was important for the Supreme Court to draw the line here to prevent overreaching and preserve the right to counsel.

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This post was written by Andrew Winters

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