In its October 2013 term, the Supreme Court for the first time in 23 years will squarely consider the constitutionality of pretrial restraints on assets needed by a criminal defendant to pay counsel of choice. In Kaley v. United States,1 the court will decide whether the Fifth and Sixth amendments entitle a defendant whose assets are restrained post-indictment to a pretrial hearing on release of funds needed to pay attorney fees. When the court last considered this issue in 1989, a 5-4 majority in two related cases concluded that attorney fees were not exempt from pretrial restraint, but declined to reach the issue of what, if any, hearing might be appropriate under the Due Process clause.2 Since that time, however, the number of federal crimes for which forfeiture is available has increased vastly—far beyond narcotics trafficking and organized crime—to all manner of fraud-based offenses.3 So too has the government's aggressive use of pretrial asset restraints in white-collar cases.4 Thus, the issue has taken on broad significance.
The lower courts have now struggled with this complicated question for two decades, leaving the case law in this area rife with split decisions, reversals, and en banc hearings.5 Courts have grappled with, on one hand, the government's interest in separating criminals from their ill-gotten gains and avoiding the expense and strategic disadvantage of pretrial "mini-trials." On the other hand, they must weigh the criminal defendant's constitutional right to counsel of choice. Courts have also dealt with broader systemic issues, balancing the risk that a pretrial hearing will undermine the independence of the grand jury against the risk that denying such a hearing will deter attorneys from taking on criminal matters and will undermine the adversarial criminal justice system. The Kaley decision on pretrial forfeiture will likely constitute an important point in the evolution of the Fifth and Sixth Amendment rights of all criminal defendants.
