NCJ Number
126572
Journal
Vanderbilt Law Review Volume: 43 Issue: 4 Dated: (May 1990) Pages: 1377-1400
Date Published
1990
Length
24 pages
Annotation
This article examines the U.S. Supreme Court's decisions in "Caplin and Drysdale" and "Monsanto" in the context of the history of the sixth amendment (right to counsel) and the new drug proceeds forfeiture statute.
Abstract
In "Caplin and Drysdale" (1989), the petitioner, a law firm, sought to recover legal fees from the forfeited assets of its client. The Court concluded that the government has a strong interest in obtaining full recovery of all forfeitable assets that overrides any sixth amendment interest in allowing a defendant to use the assets to pay for a defense. In United States v. Monsanto (1989), the Court considered whether freezing a defendant's assets before conviction and before the assets are conclusively held to be forfeitable is unconstitutional. The Court concluded that such freezing is permissible when the trial court's restraining order is based on a finding of probable cause that the assets are forfeitable. This article concludes that the use of forfeiture to take the profit out of crime and reduce the economic incentive to engage in future criminal acts is the only legitimate governmental interest significantly served by asset forfeiture. It further argues that this interest is not undermined by recognizing an attorney's fees exception to forfeiture. Such an exception would serve an array of sixth amendment interests without significantly eroding deterrence of future drug felonies. 188 footnotes