Pubdate: Mon, 1 Feb 2010
Source: Reason Magazine (US)
Copyright: 2010 The Reason Foundation
Author: Radley Balko
Note: Radley Balko is a senior editor at reason.
Bookmark: (Asset Forfeiture)


Police and Prosecutors Won't Give Up Their License to Steal

Around 3 in the morning on January 7, 2009, a 22-year-old college 
student named Anthony Smelley was pulled over on Interstate 70 in 
Putnam County, Indiana. He and two friends were en route from Detroit 
to visit Smelley's aunt in St. Louis. Smelley, who had recently 
received a $50,000 settlement from a car accident, was carrying 
around $17,500 in cash, according to later court documents. He claims 
he was bringing the money to buy a new car for his aunt.

The officer who pulled him over, Lt. Dwight Simmons of the Putnam 
County Sheriff's Department, said that Smelley had made an unsafe 
lane change and was driving with an obscured license plate. When 
Simmons asked for a driver's license, Smelley told him he had lost it 
after the accident. Simmons called in Smelley's name and discovered 
that his license had actually expired. The policeman asked Smelley to 
come out of the car, patted him down, and discovered a large roll of 
cash in his front pocket, in direct contradiction to Smelley's 
alleged statement in initial questioning that he wasn't, in fact, 
carrying much money.

A record check indicated that Smelley had previously been arrested 
(though not charged) for drug possession as a teenager, so the 
officer called in a K-9 unit to sniff the car for drugs. According to 
the police report, the dog gave two indications that narcotics might 
be present. So Smelley and his passengers were detained and the 
police seized Smelley's $17,500 cash under Indiana's asset forfeiture law.

But a subsequent hand search of the car turned up nothing except an 
empty glass pipe containing no drug residue in the purse of Smelley's 
girlfriend. Lacking any other evidence, police never charged anybody 
in the car with a drug-related crime. Yet not only did Putnam County 
continue to hold onto Smelley's money, but the authorities initiated 
legal proceedings to confiscate it permanently.

Smelley's case was no isolated incident. Over the past three decades, 
it has become routine in the United States for state, local, and 
federal governments to seize the property of people who were never 
even charged with, much less convicted of, a crime. Nearly every 
year, according to Justice Department statistics, the federal 
government sets new records for asset forfeiture. And under many 
state laws, the situation is even worse: State officials can seize 
property without a warrant and need only show "probable cause" that 
the booty was connected to a drug crime in order to keep it, as 
opposed to the criminal standard of proof "beyond a reasonable 
doubt." Instead of being innocent until proven guilty, owners of 
seized property all too often have a heavier burden of proof than the 
government officials who stole their stuff.

Municipalities have come to rely on confiscated property for revenue. 
Police and prosecutors use forfeiture proceeds to fund not only 
general operations but junkets, parties, and swank office equipment. 
A cottage industry has sprung up to offer law enforcement agencies 
instruction on how to take and keep property more efficiently. And in 
Indiana, where Anthony Smelley is still fighting to get his money 
back, forfeiture proceeds are enriching attorneys who don't even hold 
public office, a practice that violates the U.S. Constitution.

Guilty Property, Innocent Owners

Technically, civil asset forfeiture proceedings are brought against 
the property itself, not the owner. Hence they often have odd case 
titles, such as U.S. v. Eight Thousand Eight Hundred and Fifty 
Dollars or U.S. v. One 1987 Jeep Wrangler. The government need only 
demonstrate that the seized property is somehow related to a crime, 
generally either by showing that it was used in the commission of the 
act (as with a car driven to and from a drug transaction, or a house 
from which drugs are sold) or that it was purchased with the proceeds.

Because the property itself is on trial, the owner has the status of 
a third-party claimant. Once the government has shown probable cause 
of a property's "guilt," the onus is on the owner to prove his 
innocence. The parents of a drug-dealing teenager, for instance, 
would have to show they had no knowledge the kid was using the family 
car to facilitate drug transactions. Homeowners have to show they 
were unaware that a resident was keeping drugs on the premises. 
Anyone holding cash in close proximity to illicit drugs may have to 
document that he earned the money legitimately.

When owners of seized property put up a legal fight (and the majority 
do not), the cases are almost always heard by judges, not juries. In 
some states forfeiture claimants don't even have the right to a jury 
trial. But even in states where they do, owners tend to waive that 
right, because jury proceedings are longer and more expensive. 
Federal forfeiture claimants are technically guaranteed a jury trial 
under the Seventh Amendment, but can lose the right if they fail to 
reply in a timely manner to sometimes complicated government notices 
of seizure.

Federal asset forfeiture law dates back to the Racketeer Influenced 
and Corrupt Organizations (RICO) Act of 1970, a law aimed at seizing 
profits earned by organized crime. In 1978 Congress broadened RICO to 
include drug violations. But it was the Comprehensive Crime Control 
Act of 1984 that made forfeiture the lucrative, widely used law 
enforcement tool it is today.

"The Crime Control Act did a few things," says the Virginia-based 
defense attorney David Smith, author of the legal treatise 
Prosecution and Defense of Forfeiture Cases. "First, it corrected 
some poor drafting in the earlier laws. Second, it created two 
federal forfeiture funds, one in the Justice Department and one in 
the Treasury. And most important, it included an earmarking provision 
that gave forfeiture proceeds back to local law enforcement agencies 
that helped in a federal forfeiture."

This last bit was key. "The thinking was that this would motivate 
police agencies to use the forfeiture provisions," Smith says. "They 
were right. It also basically made law enforcement an interest group. 
They directly benefited from the law. Since it was passed, they've 
fought hard to keep it and strengthen it."

The 1984 law lowered the bar for civil forfeiture. To seize property, 
the government had only to show probable cause to believe that it was 
connected to drug activity, or the same standard cops use to obtain 
search warrants. The state was allowed to use hearsay 
evidence--meaning a federal agent could testify that a drug informant 
told him a car or home was used in a drug transaction--but property 
owners were barred from using hearsay, and couldn't even 
cross-examine some of the government's witnesses. Informants, while 
being protected from scrutiny, were incentivized monetarily: 
According to the law, snitches could receive as much as one-quarter 
of the bounty, up to $50,000 per case.

According to a 1992 Cato Institute study examining the early results 
of the Comprehensive Crime Control Act, total federal forfeiture 
revenues increased by 1,500 percent between 1985 and 1991. The 
Justice Department's forfeiture fund (which doesn't include 
forfeitures from customs agents) jumped from $27 million in 1985 to 
$644 million in 1991; by 1996 it crossed the $1 billion line, and as 
of 2008 assets had increased to $3.1 billion. According to the 
government's own data, less than 20 percent of federal seizures 
involved property whose owners were ever prosecuted.

More than 80 percent of federal seizures are never challenged in 
court, according to Smith. To supporters of forfeiture, this 
statistic is an indication of the owners' guilt, but opponents argue 
it simply reflects the fact that in many cases the property was worth 
less than the legal costs of trying to get it back. Under the 1984 
law, forfeiture defendants can't be provided with a court-appointed 
attorney, meaning an innocent property owner without significant 
means would have to find a lawyer willing to take his case for free 
or in exchange for a portion of the property should he succeed in 
winning it back. And to even get a day in court, owners were forced 
to post a bond equal to 10 percent of the value of their seized property.

The average Drug Enforcement Administration (DEA) property seizure in 
1998 was worth about $25,000. In 2000 a Justice Department source 
told the PBS series Frontline that this figure was also the cutoff 
under which most forfeiture attorneys advised clients that their 
cases wouldn't be worth pursuing. So a law aimed at denying drug 
kingpins their ill-gotten millions ended up affecting mostly those 
with so little loot it didn't even make sense to hire an attorney to 
win it back.

Police gradually came to view asset forfeiture as not just a way to 
minimize drug profits, or even to fill their own coffers, but as a 
tool to enforce maximum compliance on non-criminals. In one highly 
publicized example from the 1990s, Jason Brice nearly lost the motel 
he had bought and renovated in a high-crime area of Houston. At the 
request of local authorities, Brice hired private security, allowed 
police to patrol his property (at some cost to his business), and 
spent tens of thousands of dollars in other measures to prevent drug 
activity on the premises. But when local police asked Brice to raise 
his rates to deter criminals, he refused, saying it would put him out 
of business. Stepped up police harassment of his customers caused 
Brice to eventually terminate the agreement that had allowed them 
latitude on his property. In less than a month, local and federal 
officials tried to seize Brice's motel on the grounds that he was 
aware of drug dealing taking place there. Brice eventually won, but 
only after an expensive, drawn-out legal battle.

By the late 1990s, stories such as Brice's finally moved Congress to 
act. After a series of emotional hearings in 2000, Congress passed 
the Civil Asset Forfeiture Reform Act (CAFRA), authored by Rep. Henry 
Hyde (R-Ill.). The bill raised the federal government's burden of 
proof in forfeiture cases from probable cause to a preponderance of 
the evidence, the same standard as in other civil cases. It barred 
the government from using hearsay and allowed owners who won 
forfeiture challenges to obtain reimbursement for legal expenses.

The bill wasn't perfect. Seizures made by customs agents, as opposed 
to the DEA or FBI, would still be governed by the old rules. Hyde 
(who died in 2007) wanted an even heavier burden of proof for the 
government, the "beyond a reasonable doubt" standard used in criminal 
cases. That didn't pass. Under CAFRA, the federal government could 
still take your property without proving beyond a reasonable doubt 
that any crime was committed, much less that you yourself had 
committed one. But at least the reforms made the process a bit more difficult.

Problem was, the 1984 law had already spawned dozens of imitators on 
the state level, and CAFRA applied only to the feds. Forfeiture had 
been sending money to police departments and prosecutors' offices for 
16 years, so even in the few states that passed laws to make the 
process more fair, officials found ways around them. Once the 
authorities have a license to steal, it turns out to be very 
difficult to revoke.

Present Punishment for Future Crimes

On February 4, 2009, Anthony Smelley got his first hearing before an 
Indiana judge. Smelley's attorney, David Kenninger, filed a motion 
asking for summary judgment against the county, citing a letter from 
a Detroit law firm stating that the seized money indeed came from an 
accident settlement, not a drug transaction. Kenninger also argued 
that because there were no drugs in Smelley's car, the state had 
failed to show the required "nexus" between the cash and illegal 
activity. Putnam County Circuit Court Judge Matthew Headley seemed to 
agree, hitting Christopher Gambill, who represented Putnam County, 
with some tough questions. That's when Gambill made an argument that 
was remarkable even for a forfeiture case.

"You have not alleged that this person was dealing in drugs, right?" 
Judge Headley said.

"No," Gambill responded. "We alleged this money was being transported 
for the purpose of being used to be involved in a drug transaction."

Incredibly, Gambill was arguing that the county could seize Smelley's 
money for a crime that hadn't yet been committed. Asked in a phone 
interview to clarify, Gambill stands by the general principle. "I 
can't respond specifically to that case," he says, "but yes, under 
the state forfeiture statute, we can seize money if we can show that 
it was intended for use in a drug transaction at a later date." 
(Smelley himself refused to be interviewed for this article.)

The New York-based attorney Steven Kessler, author of the legal 
treatise Civil and Criminal Forfeiture: Federal and State Practice, 
says he has never heard the "future crimes" argument. "Can you 
imagine any judge in America allowing an argument like that to 
stand?" Kessler says. "It's obscene. It's like something out of that 
movie Minority Report. We don't punish people for crimes they haven't 
yet committed."

Smelley's fight for his money would only get more bizarre. At the 
conclusion of the February hearing, Judge Headley temporarily granted 
the motion for summary judgment, ordering the county to return the 
money. But there was a catch. Under Indiana law, the county had an 
additional 10 days to amend its complaint to show a connection 
between the seized property and illegal activity. If after that 
10-day period the state didn't amend its complaint, or if the judge 
found the amendments insufficient, Smelley could retrieve his cash 
and be on his way.

But Headley would never rule on the amended complaint. Days after 
issuing summary judgment, Headley pulled himself off the case without 
explanation. Smelley's case was then batted around Indiana county 
courts for months, before finally ending up in front of Special Judge 
David Bolk. On August 18, more than seven months after Smelley's 
money was seized, Bolk overturned Headley's summary judgment. The 
opinion was curt, and didn't offer an explanation. Bolk ordered a 
civil forfeiture trial for November 13. The trial was then postponed 
again until January 29, 2010, due to congestion in the court system. 
That means Putnam County will have held Smelley's money for more than 
a year before giving him the opportunity to argue that he should get it back.

'Make the Bad Guys Pay!'

A survey of state and federal forfeiture since 2000 shows that CAFRA 
hasn't stopped the exponential growth of government asset seizure. 
Adjusted for inflation, the Justice Department's asset forfeiture 
fund, which includes proceeds from forfeitures carried out by all 
federal agencies except Immigration and Customs Enforcement, grew 
from $1.3 billion in 2001 to $3.1 billion in 2008. (The total 
includes some money left over from previous years, but according to 
Smith, almost all of the money is doled out to local and federal 
agencies on an annual basis.) National Public Radio has reported that 
between 2003 and 2007, the amount of money seized by local law 
enforcement agencies enrolled in the federal forfeiture program 
tripled from $567 million to $1.6 billion. That doesn't include 
property seized by local law enforcement agencies without involving 
federal authorities.

While the Hyde bill placed some limits on federal civil forfeiture, 
it eased the process of seizing property in criminal forfeiture 
cases. Criminal forfeiture requires a conviction, so the property 
owner at least has to be found guilty of a crime, but the potential 
for abuse is widespread here, too. For example, prosecutors can 
"substitute assets" if they believe a defendant has disposed of 
seizable property. A court will issue a money judgment based on an 
estimate of how much the defendant has made through criminal 
endeavors. In some federal districts, prosecutors can then collect by 
seizing property that they can't prove was connected to any illegal activity.

Smith, the Virginia-based forfeiture specialist, says courts 
generally rubber-stamp the government's estimate on substitute 
assets, putting the defendant on the hook for that amount the rest of 
his life. This practice can be particularly unfair in conspiracy 
cases, where unequal defendants can be conjoined under the doctrine 
of joint and several liability. If 10 defendants are convicted in a 
drug conspiracy case and a court enters a total money judgment for 
$10 million, all 10 are liable until the $10 million is paid in full. 
If the five most responsible parties are sent to prison for 40 years, 
the remaining five--be they mid-level dealers, foot soldiers, or a 
girlfriend who forwarded a few phone calls--are liable for the entire 
$10 million, no matter who actually got the money in the end. "The 
government is always going to go after the guy with the most money, 
regardless of culpability," Smith says. "Even if he played only a 
small role in the conspiracy and earned everything he owns legitimately."

Criminal forfeiture can also prevent defendants from effectively 
contesting the charges against them. When the DEA accuses a doctor of 
illegally prescribing pain medication, for example, one of the first 
actions it takes is to freeze his assets for possible forfeiture. 
Since most doctors make their entire living from their practice, 
nearly everything they own can be frozen. Many accused doctors 
therefore don't have the resources to hire legal representation, much 
less experts to counter government assertions that they're 
prescribing controlled substances outside the normal practice of 
medicine. Forfeiture makes it nearly impossible for them to mount a 
credible defense.

In addition to raising questions of fairness, forfeiture has warped 
the priorities of law enforcement agencies. In 2008 the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives asked for bids from 
private contractors on 2,000 Leatherman pocket knives for its agents, 
to be inscribed with the phrase "Always Think Forfeiture," a play on 
the agency's traditional "ATF" initials. The agency rescinded the 
order after it was reported in the Idaho Statesman, but critics said 
it betrayed the ethic of an organization more interested in taking 
people's property than in fighting crime.

Some police agencies come to view forfeiture not just as an 
occasional windfall for buying guns, police cars, or better 
equipment, but as a source of funding for basic operations. This is 
especially true with multijurisdictional drug task forces, some of 
which have become financially independent of the states, counties, 
and cities in which they operate, thanks to forfeiture and federal 
anti-drug grants.

In a 2001 study published in the Journal of Criminal Justice, the 
University of Texas at Dallas criminologist John Worral surveyed 
1,400 police departments around the country on their use of 
forfeiture and the way they incorporated seized assets into their 
budgets. Worral, who describes himself as agnostic on the issue, 
concluded that "a substantial proportion of law enforcement agencies 
are dependent on civil asset forfeiture" and that "forfeiture is 
coming to be viewed not only as a budgetary supplement, but as a 
necessary source of income." Almost half of surveyed police 
departments with more than 100 law enforcement personnel said 
forfeiture proceeds were "necessary as a budget supplement" for 
department operations.

Such widespread use of forfeiture has created an industry of 
facilitators. Organizations such as the International Association for 
Asset Recovery sponsor conferences where law enforcement officials 
learn how to maximize their asset-seizing potential. They also offer 
certifications in forfeiture expertise. Advertising a Florida 
conference on its website in 2009, an outfit called Asset Recovery 
Watch (slogan: "Make the bad guys pay!") assures budget-conscious 
police departments that federal law permits them to use forfeiture 
funds to send police officers away to forfeiture conferences for training.

Forfeiture may also undermine actual enforcement of the law. In a 
1994 study reported in Justice Quarterly, criminologists J. Mitchell 
Miller and Lance H. Selva observed several police agencies that 
identified drug supplies but delayed making busts to maximize the 
cash they could seize, since seized cash is more lucrative for police 
departments than seized drugs. This strategy allowed untold amounts 
of illicit drugs to be sold and moved into the streets, contrary to 
the official aims of drug enforcement.

There is also a potential conflict between forfeiture and criminal 
prosecution. Smith says prosecutors rarely initiate civil forfeiture 
proceedings against someone who has been acquitted on criminal 
charges, although the law allows them to do so. "I think the feeling 
is that a jury would be very skeptical of that--that this person was 
acquitted in court and that to now try to take his property too is 
unfair," he says. "If they don't think a jury would be sympathetic, 
it isn't worth their time to pursue it." If a prosecutor pursues a 
criminal case, with its higher burden of proof, he risks losing the 
ability to take the suspect's assets. If he drops the criminal case 
and just goes after the property with a case that is easier to prove, 
the suspect goes free, but the government gets to keep his stuff.

"There's also the temptation for prosecutors to offer a plea on the 
criminal charges in exchange for forfeiting some of the property," 
says Scott Bullock, an attorney with the Institute for Justice, a 
libertarian public interest law firm. "If you support the drug 
laws--and not all of us do--but if you support them, you have to 
question the incentives."

Highway Robbery in Texas

The Supreme Court this spring will rule on Alvarez v. Smith, a 
challenge to Illinois' forfeiture statute, which mostly mirrors the 
1984 federal law--property can be seized without a warrant, retained 
using only probable cause; the government can use hearsay, defendants 
cannot; the burden of proof rests largely on those who have their 
stuff seized; and even victorious defendants cannot recover court 
costs or attorney fees.

The Supreme Court is unlikely to rule on any of those provisions. 
Instead it will consider a wrinkle that allows the state to keep 
property for up to six months before giving the owner his first day 
in court. Innocent property owners can be kept waiting more than a 
year before getting a decision, a predicament that critics say 
imposes an unconstitutional burden, particularly in cases where the 
police have seized someone's car.

In other states, the problem isn't so much the strict provisions on 
the books, but rather the relevant law's ambiguity, which can give 
police and prosecutors too much leeway. Tiny Tenaha, Texas, 
population 1,046, made national news in 2008 after a series of 
reports alleged that the town's police force was targeting black and 
Latino motorists along Highway 84, a busy regional artery that 
connects Houston to Louisiana's casinos, ensuring a reliable harvest 
of cash-heavy motorists. The Chicago Tribune reported that in just 
the three years between 2006 and 2008, Tenaha police stopped 140 
drivers and asked them to sign waivers agreeing to hand over their 
cash, cars, jewelry, and other property to avoid arrest and 
prosecution on drug charges. If the drivers agreed, police took their 
property and waved them down the highway. If they refused, even 
innocent motorists faced months of legal hassles and thousands of 
dollars in attorney fees, usually amounting to far more than the 
value of the amount seized. One local attorney found court records of 
200 cases in which Tenaha police had seized assets from drivers; only 
50 were ever criminally charged.

National Public Radio reported in 2008 that in Kingsville, Texas, a 
town of 25,000, "Police officers drive high-performance Dodge 
Chargers and use $40,000 digital ticket writers. They'll soon carry 
military-style assault rifles, and the SWAT team recently acquired 
sniper rifles." All this equipment was funded with proceeds from 
highway forfeitures.

Texas prosecutors benefited too. Former Kimble County, Texas, 
District Attorney Ron Sutton used forfeiture money to pay the travel 
expenses for him and 198th District Judge Emil Karl Pohl to attend a 
conference in Hawaii. It was OK, the prosecutor told NPR, because 
Pohl approved the trip. (The judge later resigned over the incident.) 
Shelby County, Texas, District Attorney Lynda Kay Russell, whose 
district includes Tenaha, used forfeiture money to pay for tickets to 
a motorcycle rally and a Christmas parade. Russell is also attempting 
to use money from the forfeiture fund to pay for her defense against 
a civil rights lawsuit brought by several motorists whose property 
she helped take. In 2005, the district attorney in Montgomery County, 
Texas, had to admit that his office spent forfeiture money on an 
office margarita machine. The purchase got attention when the office 
won first place in a margarita competition at the county fair.

While police departments have been benefiting from forfeiture 
policies for years, funneling the money to prosecutors raises even 
more problems. "Police merely seize the property," David Smith says. 
"They don't determine which cases go forward. It's a violation of due 
process if the prosecutor, the person actually deciding whether or 
not to bring a forfeiture case, benefits somehow from the decision. 
You can't have the same person deciding which cases to take also 
directly benefiting from those cases."

Smith and the Institute for Justice's Scott Bullock both believe 
language in the 1982 Supreme Court decision Marshall v. Jerrico Inc. 
suggests that if a law allowing prosecutors' offices to benefit from 
forfeiture proceeds were challenged in federal court, it might be 
struck down. "Jerrico actually found that a government agency can be 
reimbursed from the defendant's assets for the cost of an 
investigation," says Bullock. "But in dicta, the Court indicated that 
it would strike down a law that allowed a particular public official 
to benefit from bringing a case." The Institute for Justice brought 
such a challenge to New Jersey's forfeiture law, which allows 
proceeds to flow into the general budgets of district attorneys. The 
New Jersey Supreme Court rejected the argument. So far no one has 
used Jerrico to challenge a state forfeiture law in federal court.

"I think that's where it needs to happen," Smith says. "State courts 
are made up of former prosecutors and other people who have 
connections to the community. No one wants to be the one who puts an 
end to all of this. I think it will take a federal court challenge to do it."

Not every state has kept its old laws intact. Kessler, the New York 
attorney and forfeiture expert, says 27 states have adopted 
CAFRA-style reforms. Some go even further, requiring that the 
proceeds from forfeited property go directly to the state general 
fund or to a fund earmarked for a specific purpose, such as education.

But here, too, things aren't always as they seem. In Missouri, for 
example, forfeited property is supposed to go to the state's public 
schools. But in 1999 a series of reports in The Kansas City Star 
showed how Missouri police agencies were circumventing state law. 
After seizing property, local police departments would turn it over 
to the DEA or another federal agency. Under federal law, the federal 
agency can keep 20 percent or more of the money; the rest, up to 80 
percent, goes back to the local police department that conducted the 
investigation. None of the money in these cases goes to the schools.

The Kansas City Star investigation made national news at the time, 
but Kessler says the practice of circumventing earmarking through 
federal "adoption" is now common all over the country. "It happens a 
lot," he says. "It clearly goes against the intent of the state 
legislatures that passed these laws, but I don't know of any state 
that has made a serious effort to prevent it from happening."

'It's Blatantly Unconstitutional'

Timothy Bookwalter, the elected chief prosecutor for Putnam County, 
Indiana, did not represent the county in its effort to keep Anthony 
Smelley's money. Nor did anyone else in his office. Instead, the case 
was handled by Christopher Gambill, a local attorney in private 
practice. Gambill manages civil forfeiture cases for several Indiana 
counties, and he gets to keep a portion of what he wins in court. "My 
contingency for my own county is a quarter; for the others it's a 
third," Gambill says.

The concept is alarming. If allowing public prosecutors to benefit 
from forfeiture funds brushes up against due process, allowing an 
unaccountable private attorney to run forfeiture cases and keep a 
portion of the winnings rams a steamroller straight through the 
notion. "This is scandalous," Kessler says. "It's blatantly unconstitutional."

Gambill not only argues and briefs Putnam County forfeiture cases; he 
also determines which cases the county pursues in the first place. 
That means nongovernmental forfeiture attorneys are making criminal 
justice decisions that directly bolster their incomes. "It's really 
bad policy," David Smith says. "I also don't see how it could 
possibly be legal."

Mark Rutherford, chairman of the Indiana Public Defender Commission, 
says he isn't aware of any court challenges to the practice. "It's 
just sort of accepted here that this is the way things are," 
Rutherford says. "There are attorneys who have amassed fortunes off 
of these cases." The office of Indiana Attorney General Greg Zoeller 
referred inquiries about this contracting system to the Indiana 
Prosecuting Attorneys Council, which represents the state's 
prosecutors. That organization did not return several calls seeking comment.

Like Missouri, Indiana theoretically allocates asset forfeiture 
proceeds to its public schools. In fact, that requirement is spelled 
out in Indiana's constitution. But there are ways around this 
restriction. "If you can get someone to settle without having to go 
to court, under state law that technically isn't a forfeiture," 
Gambill says. "So it can all go to the police and prosecutors' 
offices. After the contingency, of course."

'We All Get Greedy'

The country's lurch to the political left won't necessarily mean a 
greater protection for civil liberties in forfeiture cases. Asset 
seizure, in fact, is one area where conservatives tend to take a less 
law-enforcement-friendly position than liberals. "Conservatives value 
property," Kessler says, "so they tend to be sympathetic to property 
owners in these cases. If you look back at the Supreme Court cases 
putting limits on forfeiture, most were written by conservative 
justices. And of course Rep. Hyde was a conservative Republican."

Don't be surprised, then, if forfeiture power expands in the coming 
years, particularly with respect to financial fraud, tax evasion, and 
other white-collar crimes. "It's always a pendulum, swinging back and 
forth," Kessler says. "I think we are in the pro-government phase now."

But over the long term, Kessler is more optimistic about reform. 
Expanding unjust forfeiture laws to include new classes of people 
makes the members of those classes aware of just how unfair those 
laws can be. And the government always overplays its hand. "We all 
get greedy, and the government is no exception," he says. "I think 
that in this climate, they'll go for too much, and then the courts 
will rein them in. It's unfortunate that that's the way it has to happen."

As for Anthony Smelley: As of this writing, more than a year after 
the police took $17,500 of his money, he has yet to have his day in court.
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