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.