On October 16, 2013, the Supreme Court is set to hear oral arguments in Kaley v. United States. In deciding Kaley, the Court must answer a hotly contested question: Does the constitution require federal prosecutors seeking to seize a defendant’s assets to show at a pretrial hearing that the assets are in fact the proceeds of illegal activity? As it currently stands, prosecutors are not required to make such a pretrial showing. Thus, the Government may seize the assets at issue pending the outcome of the trial. As a result, defendants may not use the seized assets in order to hire an attorney. Petitioners in the case argue that denying defendants a pretrial hearing on the matter ultimately violates their right to an attorney of their choice.

Over the past few decades, criminal asset forfeiture has expanded exponentially in scope and in terms of the value of assets seized. To date, criminal asset forfeiture is available for nearly every crime and the federal Government collects billions of dollars each year in seized assets. In a vicious cycle, the expansion of asset forfeiture increases the Government’s financial motivations and greatly increases the risk of abuse of the forfeiture laws and their continued unnecessary expansion.