Civil Forfeiture

Luis v. U.S. - Post-Decision SCOTUScast

SCOTUScast 4-6-16 featuring John Malcolm
John G. Malcolm April 06, 2016

On March 30, 2016, the Supreme Court decided Luis v. U.S. In 2012, a grand jury indicted Luis for a variety of crimes relating to health care fraud. The government contended that she had fraudulently obtained some $45 million, and had spent all except $2 million of it. The government then initiated a civil proceeding to freeze Luis’ remaining assets, including those not traceable to the alleged fraud, to preserve them for payment of restitution and criminal penalties if she was convicted. Luis objected that the freeze violated her Sixth Amendment right to counsel, by precluding her from using her own untainted funds--those not connected with the alleged crime--to hire counsel to defend her in her criminal case. The district court acknowledged that Luis might be unable to hire counsel of her choice but rejected her Sixth Amendment claim, and the Eleventh Circuit affirmed that judgment on appeal.

By a vote of 5-3, the Supreme Court vacated the judgment of the 11th Circuit and remanded the case. No single rationale, however, attracted the votes of five justices. Writing for a plurality, Justice Breyer delivered an opinion arguing, based on the nature of competing considerations, relevant legal tradition, and practical concerns, that Luis had a Sixth Amendment right to use her own “innocent” property to pay a reasonable fee for the assistance of counsel. The opinion was joined by the Chief Justice and Justices Ginsburg and Sotomayor. Justice Thomas concurred in the judgment of the Court--thereby providing a fifth vote to vacate and remand--but he did not agree with the plurality’s balancing approach and instead rested strictly on the Sixth Amendment’s text and common-law backdrop. Justice Kennedy filed a dissenting opinion in which Justice Alito joined. Justice Kagan also filed a dissenting opinion.

To discuss the case, we have John Malcolm, who is Director of the Edwin Meese III Center for Legal and Judicial Studies, and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow at the Heritage Foundation.

Luis v. U.S. - Post Argument SCOTUScast

SCOTUScast 12-8-15 featuring John Malcolm
John G. Malcolm December 08, 2015

On November 10, 2015, the Supreme Court heard oral argument in Luis v. U.S. Luis was indicated for Medicare fraud involving alleged kickbacks to patients who enrolled with Luis’ home healthcare companies. The government then brought a civil action to restrain Luis’ assets--including substitute property of an equivalent value to that actually traceable to the alleged fraud--before her criminal trial. Although Luis objected that she needed these assets to pay for defense counsel, the district court ruled in favor of the government and the U.S. Court of Appeals for the 11th Circuit affirmed.

The question before the Supreme Court is whether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.

To discuss the case, we have John Malcolm, who is Director of the Edwin Meese III Center for Legal and Judicial Studies, and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow at the Heritage Foundation.

Ferguson, Baltimore, and Criminal Justice Reform - Event Audio/Video

2015 National Lawyers Convention
Arthur Loevy, Tim Lynch, David B. Muhlhausen, Michael P. Tremoglie, Robert L. Woodson, David Stras, Gail Heriot November 18, 2015

Criminal justice and policing reform are much in the news lately, sparked by events that garner national media coverage. This panel will assess the need for reform, and the road forward. How do media narratives about policing square with the empirical evidence? What are the most effective methods of policing, and how can they best be promoted? What is the proper way to balance police activity and the crime rate? In the current atmosphere, is legitimate police activity chilled? Must law enforcement officers responding to calls pause to consider their potential personal liability?

Civil Rights: Ferguson, Baltimore, and Criminal Justice Reform
12:00 noon – 2:15 p.m.
East Room

  • Mr. Arthur Loevy, Partner, Loevy & Loevy
  • Mr. Tim Lynch, Director, Project on Criminal Justice, The Cato Institute
  • Dr. David B. Muhlhausen, Research Fellow in Empirical Policy Analysis,  Center for Data Analysis, The Heritage Foundation
  • Mr. Michael P. Tremoglie, Former Philadelphia Police Officer
  • Mr. Robert L. Woodson, Sr., Founder and President, Center for Neighborhood Enterprise
  • Moderator: Hon. David Stras, Associate Justice, Supreme Court of Minnesota
  • Introduction: Hon. Gail Heriot, Professor of Law, University of San Diego School of Law

The Mayflower Hotel
Washington, DC

Civil Asset Forfeiture - Podcast

Criminal Law & Procedure and Litigation Practice Groups Podcast
John G. Malcolm, John W. Vardaman February 23, 2015

Since the 1980s, the Department of Justice has utilized civil asset forfeiture as an effective tool to seize and forfeit billions of dollars-worth of assets allegedly connected to criminal activity as either an instrumentality or fruit of the crime. Since the inception of the asset forfeiture program, the Justice Department has shared much of these funds with state and local law enforcement authorities under its equitable sharing program, and many states have their own civil forfeiture laws and procedures. Critics of the program believe that civil asset forfeiture is fundamentally unfair, claiming, among other things, that it has the potential to warp law enforcement priorities, that the existing procedures are stacked against innocent property owners, and that it is simply wrong to seize someone’s property when that person has not been charged with, much less convicted of, a crime. Several proposals have been introduced in Congress to reform the civil asset forfeiture program, the Justice Department has announced that it is conducting an internal review of this program, and a number of states have recently undertaken a review of their own civil asset forfeiture laws.

  • John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
  • John W. Vardaman, III, Assistant Deputy Chief for Policy, Asset Forfeiture and Money Laundering Section, United States Department of Justice

Civil Asset Forfeiture - Podcast

Criminal Law & Procedure Practice Group Podcast
Andrew R. Kloster, Darpana Sheth, Dean A. Reuter November 22, 2013

Police Money

Everyone knows that the proceeds and instrumentalities of a crime are confiscable by the state. What they don’t know is that the laws that authorize this type of “civil forfeiture” are subject to abuse. Some allege that state and federal law enforcement authorities use civil forfeiture as a revenue-generation tool, creating perverse incentives. This system sometimes falls on innocent owners, many of whom don’t have the legal skills or money to fight back. Our experts will discuss whether this area of our legal system is in need of reform.


  • Mr. Andrew R. Kloster, Legal Fellow, Edwin Meese III Legal Center, The Heritage Foundation
  • Ms. Darpana Sheth, Attorney, Institute for Justice
  • Moderator: Dean A. Reuter, Vice President and Director of Practice Groups, The Federalist Society

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