High Court to Decide the Future of Civil Asset Forfeiture

On Wednesday October 16, the US Supreme Court heard oral arguments in the case of Kaley v. United States. This case will undoubtedly be a landmark decision on the legality of civil asset forfeiture, a “government seizure of property and cash, even when the owner isn’t charged [with] a crime.”

In this particular case, in February 2007 Kerri and Brian Kaley were indicted on charges of money laundering and other offenses for reselling medical devices, including sutures, that she obtained from hospitals to which she had previously sold the same products. Lawrence Hurley from Reuters reports, “Federal prosecutors sought a pre-trial order to freeze their assets, including a home and certificate of deposit worth more than $500,000 that the Kaleys were hoping to use to pay for their lawyers.”

The Kaleys are claiming their Sixth Amendment rights were violated as they were then unable to hire their prefered lawyer. Amy Howe from SCOTUSblog reports, “Several Justices seemed willing to agree that any potential burdens imposed on the government by a ruling in the defendant’s favor are outweighed by the significant costs to the defendant if he is unable to hire his desired attorney. But it was unclear whether a majority would reach that conclusion.”

It also appears that the justices are not split along ideological lines. Despite both being appointees of President George W. Bush, Justice Alito seems at odds with Chief Justice John Roberts. Roberts who is worried about the “overweening power of the government” said, “It’s not that property is more valuable than liberty… It’s that the property can be used to hire a lawyer who can keep him out of jail for the next 30 years.”

On the other side, Justice Ginsburg said requiring a judge to look beyond the indictment would create the “anomaly that the grand jury has said there is probable cause, this defendant can be prosecuted, and then you would have the judge make a determination that there isn’t probable cause to believe” it. Ginsburg also expressed concern that, if the assets were released, the defendant could spend them on something else besides his defense.

Darpana Sheth of Forbes compares the tactic of asset forfeiture to the scene from Through the Looking Glass “when the White Queen explains that in her realm punishment comes first, the trial next, and a crime, maybe, last of all.” Kaley gives the court the opportunity to prove that in reality, a person must legally be convicted of a crime before they can legally be punished. This truth extends from civil asset forfeiture all the way to the use of drones in the never-ending war on terror.

Darryl W. Perry

Darryl has spent most of his adult life as an advocate & activist for peace and liberty. Darryl is an award winning author, publisher & radio/TV host. He is a regular contributor to several weekly and monthly newspapers. He hosts the daily newscast FPPRadioNews, the podcast Peace, Love, Liberty Radio, the weekly news podcast FPP Freedom Minute, and is a regular co-host on Free Talk Live. Darryl is a co-founder and co-chair of the NH Liberty Party. Darryl is the Owner/Managing Editor of Free Press Publications.

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