Harry Blackmun

“ An attorney whose fees are potentially subject to forfeiture will be forced to operate in an environment in which the Government is not only the defendant's adversary, but also his own.
The long-term effects of the fee-forfeiture practice will be to decimate the private criminal-defense bar. As the use of the forfeiture mechanism expands to new categories of federal crimes and spreads to the States, only one class of defendants will be free routinely to retain private counsel: the affluent defendant accused of a crime that generates no economic gain. ”

“ If the defendant had been represented by private counsel earlier in the proceedings, the defendant's sense that the Government has stripped him of his defenses will be sharpened by the concreteness of his loss. Appointed counsel may be inexperienced and undercompensated and, for that reason, may not have adequate opportunity or resources to deal with the special problems presented by what is likely to be a complex trial. The already scarce resources of a public defender's office will be stretched to the limit. ”

“ The majority finds unambiguous language in 21 U.S.C. § 853 (a) , which provides that when a defendant is convicted of certain crimes, the defendant "shall forfeit to the United States" any property derived from proceeds of the crime or used to facilitate the crime. I agree that § 853 (a) is broad in language and is cast in mandatory terms. [4] But I do not agree with the majority's conclusion that the lack of an express exemption for attorney's fees in § 853 (a) makes the Act as a whole unambiguous. ”

“ Although obtaining a restraining order requires a showing of probable cause, the practical effects of the threat of forfeiture are felt long before the indictment stage. Any attorney who is asked to represent the target of a drug or racketeering investigation-or even a routine tax investigation, as the facts of Caplin & Drysdale demonstrate-must think ahead to the possibility that the defendant's assets will turn out to be forfeitable. ”

“ The attorney's interest in knowing nothing is directly adverse to his client's interest in full disclosure. The result of the conflict may be a less vigorous investigation of the defendant's circumstances, leading in turn to a failure to recognize or pursue avenues of inquiry necessary to the defense. Other conflicts of interest are also likely to develop. The attorney who fears for his fee will be tempted to make the Government's waiver of fee forfeiture the sine qua non for any plea agreement, a position which conflicts with his client's best interests. ”

“ But a review of the legislative history of the Act demonstrates that the Act does not seek forfeiture of property for its own sake merely to maximize the amount of money the Government collects. [7] The central purposes of the Act, properly understood, are fully served by an approach to forfeiture that leaves ample room for the exercise of statutory discretion.
Congress' most systematic goal for criminal forfeiture was to prevent the profits of criminal activity from being poured into future such activity, for "it is through economic power that [criminal activity] is sustained and grows." ”

“ Here, in contrast, the Government's claim will not arise until after conviction. In addition, even if a jeopardy assessment were to deprive a taxpayer of the funds necessary to file a challenge to the assessment in the Tax Court, the proceeding in that court is civil, and the Sixth Amendment therefore does not apply. I agree with Judge Phillips when he observes that the constitutionality of a jeopardy assessment that deprived the defendant of the funds necessary to hire counsel to ward off a criminal challenge is not to be assumed. ”

“ There is also considerable room for discretion in the language of § 853 (e) (1) , which controls the Government's use of postindictment protective orders to prevent the preconviction transfer of potentially forfeitable assets to third parties. That section provides:
"Upon application of the United States, the court may enter a restraining order or injunction . . . or take any other action to preserve the availability of property . . . for forfeiture under this section . . . upon the filing of an indictment or information charging a violation . . . for which criminal forfeiture may be ordered . ”

“ The majority chides Judge Winter for suggesting that, once it is established that there is discretion to exclude assets used to pay attorney's fees and normal living expenses from forfeiture, the necessary result is that such assets must be excluded. Monsanto, 491 U.S., at 612-613, 109 S.Ct., at 2664-2665. I find it exceedingly unlikely that a district court, instructed that it had the discretion to permit a defendant to retain counsel, would ever choose not to do so. ”

“ Congress recognized in its enactment of statutes specifically addressing organized crime and illegal drugs that the conviction of individual racketeers and drug dealers would be of only limited effectiveness if the economic power bases of criminal organizations or enterprises were left intact, and so included forfeiture authority designed to strip these offenders and organizations of their economic power. ”

“ Facing a lengthy trial against a better armed adversary, the temptation to recommend a guilty plea will be great. The result, if the defendant is convicted, will be a sense, often well grounded, that justice was not done. ”

“ There is a place in our system of criminal justice for the maverick and the risk taker and for approaches that might not fit into the structured environment of a public defender's office, or that might displease a judge whose preference for nonconfrontational styles of advocacy might influence the judge's appointment decisions. ”

“ Nor do we deal with instrumentalities of crime, which may have evidentiary value, and may also traditionally be seized by the Government and retained even if the defendant is not proved guilty, unless a party with a rightful claim to the property comes forward to refute the Government's contention that the property was put to an unlawful use. ”

“ The right to retain private counsel also serves to assure some modicum of equality between the Government and those it chooses to prosecute. The Government can be expected to "spend vast sums of money . ”

“ But if he is not-and we should question the integrity of any criminal-defense attorney who would violate the ethical norms of the profession by doing so-the attorney's own interests will dictate that he remain ignorant of the source of the assets from hich he is paid. ”