Take the Money and Run
The crazy perversities of civil asset forfeiture.
It isn't clear just how widespread the practice is in Indiana. The office of Indiana Attorney General Greg Zoeller and the Indiana Prosecuting Attorneys Council didn't return my calls for comment. But according to Mark Rutherford, chairman of the Indiana Public Defender Commission, it goes well beyond the four counties that work with Gambill. "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."
Smelley's case also demonstrates the zeal an unelected attorney might display to win his fee. At a summary judgment hearing last February, Putnam County Circuit Court Judge Matthew Headley asked Gambill how he planned to tie Smelley's seized money to drug crimes, given the letter Smelley produced about his accident settlement. Gambill responded that while he couldn't show that Smelley had obtained the money illegally, he planned to show that the money "was being transported for the purpose of being used to be involved in a drug transaction." In other words, Gambill wanted to take Smelley's money because of a crime Smelley hadn't yet committed. When I asked Gambill to clarify, he replied, "We can seize money if we can show that it was intended for use in a drug transaction at a later date." As Kessler put it, this is "like something out of that movie Minority Report."
Smelley's case then got even stranger. At the preliminary hearing last February, Judge Headley actually ruled in Smelley's favor. But under state law, Putnam County had an additional 10 days to amend its brief. Three days after his ruling, Headley mysteriously pulled himself from the case. Gambill thinks he knows why. "Several months ago, [the judge] asked the Putnam County prosecutor if he could have $5,000 from the forfeiture fund to buy some new AV equipment for his courtroom. He was turned down," Gambill said. "Since then Judge Headley has had, well, I'll just say he's had a much different demeanor in forfeiture cases." Gambill thinks that in his eagerness to question the county, Headley misstated state law during Smelley's preliminary hearing, then took himself off the case once he realized his mistake.
Headley confirmed to me that he had made the AV equipment request. But he denied that the denial of his request for forfeiture funds had any bearing on his ruling. Maybe that's true, and Gambill is wrong. But think about the impropriety of it all: A judge asked for $5,000 to upgrade his courtroom from a fund filled with money from defendants over whose cases he presides.
Indiana's state constitution requires that forfeiture proceeds go to the public schools. So under the spirit of the law, there shouldn't even be a forfeiture fund for a judge to request money from. And yet as this case reflects, there are ways around the requirement. One tactic is to get a defendant to settle by handing over an amount of money somewhat less than it would cost him to fight the case. Because this isn't actually a court-ordered forfeiture, the money can go to the police department instead of the schools fund. In another scheme, called "adoption," state law enforcement agencies call in the feds on a forfeiture case. The case then is governed by federal law—which allows for up to 80 percent of the money to go back to local law enforcement after the federal government takes it cut, effectively circumventing state legislators.
The 2000 reforms to the federal civil forfeiture laws didn't address this problem. Many state laws are still a mess, too. In the end, the abuses in Indiana, Texas, and elsewhere really aren't surprising. When you incentivize corruption, it isn't exactly shocking to later learn that your public officials have been corrupted. As for Anthony Smelley, he finally had his new hearing last Friday. But it could be another month or more to hear whether he'll get his money back.
Radley Balko is a senior editor for Reason magazine.