Supreme Court Expands Police Power to Seize Your Assets Before Conviction

It’s been a banner week for law enforcement at the U.S. Supreme
Court. On Tuesday, in the case of Fernandez v. California,
the Court
broadened the power of the police to conduct warrantless home
searches. But it was a decision handed down on Monday that’s likely
to have the greatest impact on our criminal justice system.

At issue in Monday’s ruling in
Kaley v. United States is an area of the law known as
asset forfeiture. In essence, asset forfeiture is designed to help
law enforcement officials seize the ill-gotten fruits of criminal
activity, such as cash, cars, or homes. To that end, prosecutors
are permitted to freeze the assets of criminal suspects during
trial if there is probable cause to believe those assets constitute
“proceeds” of the alleged criminal activity. Notice that this
freezing occurs before the suspect has been duly convicted.

That timing matters a great deal to the plaintiffs in this case,
a married couple by the name of Kaley who have been indicted by a
federal grand jury on charges of selling stolen medical supplies.
That may sound like a finding of guilt, but in fact grand jury
proceedings are a non-adversarial process where the prosecution
alone is permitted to call witnesses and present evidence. The
suspects have no opportunity at that point to rebut anything the
government alleges against them.

In the wake of the grand jury indictments, the federal
government moved to freeze the Kaleys’ assets, including their home
and a $500,000 certificate of deposit the couple had recently
purchased in order to cover the anticipated legal expenses arising
from their trial. Put differently, the government has eliminated
their ability to pay their lawyer.

Writing for a 6-3 majority, Justice Elena Kagan sided with the
government. “The question here presented,” Kagan wrote, is whether
the Kaleys have a constitutional right “to contest a grand jury’s
prior determination of probable cause to believe they committed the
crimes charged. We hold that they have no right to relitigate that
finding.”

Writing in dissent, Chief Justice John Roberts zeroed in on the
dangers lurking in Kagan’s ruling. “The hearing the Kaleys seek
would not be mere relitigation of the grand jury proceedings,”
Roberts countered, it would be a hearing before a federal judge
aimed at determining if the prosecution had indeed proved probable
cause for the asset forfeitures. “And of course, the Kaleys would
have the opportunity to tell their side of the story—something the
grand jury never hears,” he added.

Furthermore, “the Court’s opinion pays insufficient respect to
the importance of an independent [criminal defense] bar as a check
on prosecutorial abuse and government overreaching,” Roberts
declared. “Granting the Government the power to take away a
defendant’s chosen advocate strikes at the heart of that
significant role.”

The chief justice got it right. Our criminal justice system only
works when both sides get the opportunity to put their best case
forward. Something has gone very wrong when the deck is stacked so
heavily against those who still remain innocent until proven
guilty.