The crazy perversities of civil asset forfeiture.

The law, lawyers, and the court.
Feb. 4 2010 5:09 PM

Take the Money and Run

The crazy perversities of civil asset forfeiture.

Last month, the Supreme Court tossed out the case Alvarez v. Smith, a challenge to a portion of the asset forfeiture in Illinois that allows the government to keep seized property for up to six months before giving its owner a day in court. The Court declined to rule on the case after determining it to be moot—all of the parties had settled with the government by the time the case made it to Washington.

That's too bad, because the Illinois law should be struck down, and also because the country could benefit from a discussion about the continuing injustice of many states' civil asset forfeiture laws.

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Civil asset forfeiture, an outgrowith of the drug war, rests on the legal theory that property can be guilty of a crime. Once authorities establish a nexus between a piece of property and criminal activity—most commonly drug cases, but also prostitution, DWI, and white collar crime—the owner must prove his innocence or lose his property, even if he's never charged with an underlying crime. In most jurisdictions, seized cash and the proceeds from the auctioned property go back to the police departments and prosecutors' offices responsible for the seizure. The scheme, which creates unsavory incentives for public officials, became popular because of a 1984 federal bill designed to encourage aggressive enforcement.

After a number of outrageous forfeiture cases made national headlines, Congress reformed federal civil forfeiture law in 2000. But egregious abuses are still common at the state level. The Indiana case of Anthony Smelley illustrates just how perverse forfeiture proceedings can get.

Early on a morning in January 2009, Smelley, who is 22, was pulled over while driving along I-70 in Putnam County, Indiana. Months earlier, he'd been in a car accident and won a $50,000 settlement. He states in court documents that he had taken around $17,500 with him that January day en route from his home in Detroit to St. Louis, to buy a new car for his aunt.

Smelley was pulled over for making an unsafe lane change and driving with an obscured license plate. He was also driving with an expired driver's license. His traffic stop should have ended with citations for those infractions. Instead, the police officer asked Smelley to get out of the car and patted him down, finding the cash. The officer then called in a K-9 unit for a sniff search of Smelley's car for drugs. The dog alerted twice. Smelley and two passengers were arrested, and the police seized Smelley's money.

A subsequent hand search of Smelley's car turned up no illicit drugs, and no criminal charges were ever filed against Smelley or his passengers. Smelley produced a letter from a Detroit law firm confirming he had been awarded the $50,000 from the accident. That didn't matter. Putnam County has since held Smelley's money for more than a year.

When I started looking into Smelley's case as part of a feature story for Reason magazine, I noticed that the attorney representing Putnam County, Christopher Gambill, wasn't Putnam County prosecutor Timothy Bookwalter or anyone who works for him. Gambill is a private attorney. He told me by phone that he handles civil forfeiture cases for several Indiana counties on a contractual basis and, incredibly, pockets a third to a quarter of what he wins in court.

Allowing police departments to benefit from forfeiture proceeds is bad enough. It creates perverse incentives for cops to err on the side of taking property and can lead to mass civil rights violations like those exposed last year in Tenaha, Texas. And forfeiture critics argue that allowing public prosecutors' offices to benefit is even worse, and likely a violation of due process. It's the prosecutors who decide what cases the state will bring in court—their offices shouldn't materially benefit from those policy decisions.

But allowing unelected private attorneys to oversee a county's forfeiture proceedings on a contingency basis is the worst option yet. These private attorneys, unaccountable to the public, are making decisions about which cases to go after that directly affect their own personal wealth. Steven Kessler, a New York attorney and author of a treatise on state forfeiture laws, says he's never heard of anything like it. "This is scandalous," Kessler told me in a phone interview. "It's blatantly unconstitutional."

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