United States v. Harvey: Are Criminal Defense Fees More Vulnerable than Necessary?

Abstract

In United States v. Harvey, the United States Court of Appeals for the Fourth Circuit held that Congress may not constitutionally require convicted racketeers and drug traffickers to forfeit property used to pay legitimate defense attorney fees. To the extent that such forfeitures and related pre-conviction restraints on transfer are authorized by provisions of the Comprehensive Forfeiture Act of 1984 (the Act), those provisions violate an accused's right to counsel of choice as secured by the Sixth Amendment.This article argues that the court's holding in Harvey was more narrowly drawn than necessary, and that as a consequence criminal defense attorney fees now may be more vulnerable to forfeiture.

The Harvey decision discarded a clearly strained statutory interpretation as the basis for exempting legitimate attorney fees from forfeiture under RICO and CCE statutes. Instead, the court predicated such exemptions exclusively on the qualified right to counsel of choice under the sixth amendment. In so doing, the court left the exemptions unnecessarily vulnerable. A stronger constitutional argument for exempting attorney fees could have been made by relying additionally on the Sixth Amendment right to effective assistance of counsel. Moreover, there is ample justification for a statutory interpretation giving trial courts the discretion to exempt attorney fees from forfeiture before conviction. Either approach would have better protected the integrity of our adversarial process from the wholly unnecessary and unwarranted accretion of prosecutorial advantage represented by the actual or even threatened forfeiture of legitimate attorney fees.

Keywords: criminal law, attorneys' fees, Sixth Amendment, criminal forfeiture, RICO

JEL Classification: K14, K42