Untainted: The Beginning of the End of Policing for Profit

At the end of March, the U.S. Supreme Court published its opinion in Luis v. United States, and although it didn’t get much attention, it was an incredibly important decision that not only strengthened the Sixth Amendment, but created the foundation for tightening up the asset forfeiture statutes that have been used, and abused, to intentionally impoverish criminal defendants.

The case centered around a Florida woman accused of fraud whose assets were seized by the federal prosecutor for the stated purpose of securing them against a future restitution payment. The issue arose when the feds seized assets, including two million dollars, which were not in any way tied to the alleged crimes and were admittedly “untainted,” money that the defendant argued was needed to hire experienced attorneys capable of defending such serious federal charges.

The court found that the Sixth Amendment to the Constitution guarantees the fundamental right to counsel that is competent and of a defendant’s choosing, and that right supersedes the government’s interest in securing untainted assets. In other words, the court prevented the further erosion of a person’s constitutional right to counsel by a prosecutor who uses asset forfeiture laws to render a defendant indigent and hence incapable of mounting a vigorous defense.

The court draws a bright and vitally important line between tainted and untainted assets, reminding us that the basis for allowing the seizure of tainted assets lies not in their future use as reparation, but lies, in fact, in that tainted assets never lawfully belonged to the criminal defendant, because it was presumably criminal acts that won them.

“Practically speaking, this holding means that it will be vitally important going forward for Michigan patients and caregivers to seek competent legal counsel before engaging in any activities that may result in the comingling of assets or the appearance thereof.”

In other words, legally gotten assets belong to you, and the government can no longer use the asset forfeiture statutes as a means to clean out your bank accounts or seize other property that you legally own.

Anybody in the Michigan medical cannabis community is aware of the devastating impact that the exploitation of asset forfeiture statutes have had here since 2008, used to virtually rob people of their property and fill the coffers of local law enforcement agencies who retain much of these takings. It never felt right. And now, finally, the highest court in our nation agrees.

Practically speaking, this holding means that it will be vitally important going forward for Michigan patients and caregivers to seek competent legal counsel before engaging in any activities that may result in the comingling of assets or the appearance thereof. Like all decisions that restrict the government’s ability to abuse power, there will be push back on this one, and an aggressive prosecutor will argue that this holding is limited only to untainted funds required to hire an attorney.

The Luis holding appears clear, however. Your legally untainted assets are now no longer the government’s for seizing.