As part of the current war on drugs, Congress enacted 21 U.S.C.section 853, the drug proceeds forfeiture statute. The statute authorizes criminal forfeiture of assets that are used in the commission of, or constitute the proceeds from, a federal drug felony. When prosecutors began to use the statute to seek forfeiture of defense counsel's attorney's fees, defendants and the law firms that represented them argued that the provision violated the sixth amendment right to counsel.
The courts of appeals were divided on the question of whether the sixth amendment prohibits forfeiture of assets intended to be used to hire an attorney. The Supreme Court resolved this conflict in the companion cases of Caplin & Drysdale, Chartered v. United States and United States v. Monsanto.6 The Court held that the sixth amendment right to counsel did not mandate an attorney's fees exception to criminal forfeiture under 21 U.S.C. section 853.
This Note examines the Court's decisions in Caplin & Drysdale and Monsanto in light of the history of the sixth amendment and the new drug proceeds forfeiture statute. Part II briefly surveys several relevant aspects of the sixth amendment right to counsel. Part III reviews the legislative history and key provisions of section 853. Part IV summarizes the Supreme Court's holdings in Caplin & Drysdale and Monsanto. Part V balances the conflicting interests and suggests an alternative holding. Finally, Part VI concludes that the greater significance of the Supreme Court's decision is its role in a larger erosion of constitutional protections motivated by the drug war.
Danton A. Berube,
Drug Proceeds Forfeiture and the Right to Counsel of Choice,
43 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol43/iss4/7