TheAgitator.com
My Investigative Feature on Asset Forfeiture
Tuesday, January 26th, 2010I have an investigative piece in the February issue of Reason on asset forfeiture. The issue is on newsstands now, but the article itself is now online.
The article uses the case of Anthony Smelley—a Michigan man who had $17,500 taken from him from Putnam County, Indiana police while driving through the state en route to Missouri—to look at the larger issue of forfeiture abuses still going on at the state and local level.
The article also breaks some news. While looking into Smelley’s story, I discovered that Putnam County’s case against the man was being handled by a private attorney, not the prosecutor’s office. When I talked to that attorney, I learned some pretty incredible things. Excerpt:
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.”
I’ve yet to talk to a forfeiture expert who wasn’t blown away that this is going on. It’s almost certainly unconstitutional. Even the ACLU had never heard of anything like it.
And then there’s this:
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.”
Believe it or not, the case actually gets even stranger from there. In the next several days, I’ll report more details that didn’t make it into the article.
But can he demonstrate that the money was definitely NOT going to be used in a drug transaction? Didn’t think so.
The Constitution, the Bill of Rights, Magna Carta… they’re all so quaint, aren’t they?
This is just absolutely staggering. I honestly thought CAF couldn’t get any worse, but apparently my cynical position was too naive.
Every time I read one of these articles, they top the last one. Is anyone other than Radley doing anything to put an end to this?
well done. it’s on my fb page.
This raises a question – -Does prosecutorial immunity apply to the private attorney’s decision to seize property?
Just tell me why we can’t shoot the bastards?
Digg it:
http://digg.com/political_opinion/The_Forfeiture_Racket
Tom, I think prosecutors like this hide behind the vague veneer of “legal obligation” to shield themselves from civil action.
I don’t even hate this guy. I hate the law that enables his ill-gotten windfall and I REALLY hate the legislators and voters who cause and casually abet this kind of depraved larceny.
It’s not an action against the person, it’s an action against the property, thus not a criminal sanction. How on earth can courts say that BS and keep a straight face? Its right up there with sovreign immunity, implied consent, imputed paternity, and all the other absurb rationalizations courts come up with to ignore the Constitution.
There’s nothing wrong with asset forfeiture as a concept. It makes good sense to decrease the perceived profitability of illegal activity. The problem comes from the completely fucked up notion that the people pushing for forfeiture should get to keep the proceeds of that forfeiture. It would be as if firefighters got paid based on the number of fires they went to. It creates perverse incentives.
A prosecutor’s job is to ensure that justice is done, and that people who violate the law are punished according to that law. A police officer’s job is to keep order and investigate crimes. Incentives that reward them for doing something else (getting convictions, making arrests or seizing assets) encourage them to do that instead of to seek justice. It’s no wonder there are so many bad apples out there.
When police start using the money earned through the drug trade, they have become defacto drug dealers themselves.
The slippery slope has been trod upon and as referenced in the article, they will delay arrests that seize the drugs because it is better for them to wait until they can seize the money. This delay makes them complicit to the selling of the drugs.
The prosecutor of Delaware County, Indiana, is facing disciplinary charges for playing both sides of the game. He represented the local Drug Task Force as a private attorney in civil asset forfeiture cases while serving as an elected official.
Can this private attorney hide behind “qualified immunity” or “absolute immunity” if he gets sued under §1983?
#10
I agree totally with forfeiture in concept. Criminals should *not* get to enjoy their ill-gotten gains.
The other problem here, though, is that forfeiture was expanded from “ill-gotten gains” to “anything that might have been used in the commission of a crime”. That’s a whole nother ballgame.
Taken to its absurd conclusion, if you’re speeding, the cops should be able to take your car. I’m honestly surprised that we’ve not seen that yet.
#10 and 13–leaving aside the issue of whether selling drugs should be a crime, I have nothing against seizing a criminal’s ill-gotten gains. The key word being “criminal.” If someone has not been charged with and convicted of a crime then they cannot be considered a criminal. Why not just get the conviction first, then go after the proceeds? Oh I forgot that takes some work.
Radley Balko’s description of the Anthony Smelley case touches on another constitutional problem in assest forfeiture cases that begins with vehicles stopped for traffic infractions. The U.S. Supreme Court has sanctioned the practice of police officers stopping “suspcious” vehicles (and occupants) for minor traffic violations even though the reason for the stop is to conduct a drug investigation. Some of the favorites are: failing to signal a lane change, crossing a yellow or “fog” line on the highway, overly tinted windows, unreadable license tag, broken tail light or license tag light, not wearing a seatbelt, just to name a few. Note how easily these claims can be manufactured — but even that is not necessary in most cases.
Once the vehicle is stopped it may be detained for a length of time reasonably necessary to check drivers license, registration, insurance information, etc. Typically a driver will be asked about his destination and whether the vehicle contains anything like dope, weapons or large amounts of cash (I even have a case in which a sheriff’s deputy asked about dead bodies). Getting the expected denial from the driver, the cop then asks for and, in an amazing number of cases, cajoles the driver into consenting to a search of the car — which is otherwise impermissible in the absence of probable cause.
If the consent ploy doesn’t work, the cop may use a drug dog to sniff the exterior of the vehicle. If the dog “alerts” that gives the cop probable cause to search the vehicle without consent. The dog sniff, according to the U.S.Supremes, is not itself a “search” since (they say from the comfort of their woolsacks) it does not invade a “reasonable expectation of privacy” of the driver or of any other occupant of the vehicle.
The only Fourth Amendment restraint in the scenario involving the dog is that the detention of the vehicle cannot be prolonged beyond the time “reasonably” necessary to complete the business of the traffic stop. To avoid this problem, officers who do not have their own drug dogs can radio for such assistance and then delay their traffic stop until the drug dog unit is in position for the intercept.
Elsewhere I have noted that the federal civil forfeiture practices are governed by Admiralty rules where proceedings are brought In Rem (against the thing itself). See Patrick O’Brian, Letters of Marque (W.W. Norton & Co 1988). Like Captain Jack Aubrey cruising the high seas in search of carriers of contraband, our modern “publicteers” patrol the highways to hail, heave to, board and seize vehicles and contents when they discover drugs or simply “too much” money. The booty is hauled into “prize” court for condemnation and the law enforcement agencies split the award.
Court up holds dui coviction of man sleeping in a inoperable car. He may at some point in the future fixed it and then driven drunk, or something.
http://www.thenewspaper.com/news/30/3030.asp
//It would be as if firefighters got paid based on the number of fires they went to.//
A frequent difficulty with both government and business is that in many cases real productivity is hard to measure. There are often other easier measures which tend to track pretty well with real productivity, but which be improved in ways that offer no real productive benefit. When such metrics are used to reward ‘productive’ employees, employees may be expected to shift their efforts toward maximizing those metrics, rather than toward doing real productive work.
In planning any sort of program or project, one must examine the incentives for all participants to ensure that there won’t be any major perverse incentives. If such incentives exist, the program will almost certainly be corrupted. Perhaps not instantly, but nonetheless inevitably.
Asset forfeiture is legalized theft, period. The cops think that the money was derived from crime ( or might be used to facilitate a crime) so they steal it from you and make you prove that you didn’t get it illegally or plan to do something illegal with it.
In other words you have to prove a negative to an organization that has a very high incentive to keep what they seize (steal).
How the hell did this ever pass constitutional muster and why is it allowed to continue with the mountains of evidence showing that it is being abused?
@ #14
“Taken to its absurd conclusion, if you’re speeding, the cops should be able to take your car.”
Actually, the more absurd conclusion is that if you own a car, they should be able to seize it because you may, at some future date, speed.
why don’t we start a revolution? i am so ready. i truly believe if people weren’t so scared and know there are people we/they can trust and that there is still hope, it could be done. i just don’treally know the first place to start. i was thinking of going to courthouses and standing outside, and getting people to sign something or give out information on how to change things. for example, try to call a gov’t agency for help. after 5 minutes of recordings, you may or may not get a live person, if you do they, don’t have a clue about what you are asking, usually rude as well, and they pass you on to another dept, and so on. my biggest frustration is who and where do we start?, at our local level?, or go big?, top of the list, pharmacuetical companies: the way i see it, they are doing everything they can, to have all of us meds, to where we don’t care about anything, 2nd-put a stop to these BIG corporations, ie. GE, Wal-mart, oil companies,etc., boycott them. law enforcement to the highest level, make the public aware that cops, up to the judges, get a percent/kickback toward their retirement (and other perks) from every fine, court cost, ticket, restitution, that they hand down/win/steal to/from us. they try to shame you into thinking you are the scum beneath their feet. it literally makes me sick. when i am doing research, trying to decypher the words, and subsections, the meanings, etc, my heart starts beating and my adrenaline just boils as i wonder how did this happen? our parents, parents said it would, and it did. once upon a cop story, i was talking about how many times i have reported cops driving like a bat out of hell, and being treated like shit, and a man from where i live said, “if you ever have complaints about the cops, write to your ‘county commissoner’s’.” i don’t know if that includes all cops, or just county cops. but, since i fell victim to the assholes on 11/28/09, i have drafted my letter to the 7 in my county and i will be sending it out soon. and lets not forget the lawyers. i don’t mean all lawyers, but the majority, for sure. money, money money, plea, plea, plea. no one is innocent anymore. LAST BUT, NOT LEAST, FIRE OUR LEGISLATORS!!!!! in michigan it is ridiculous how many there are and how much they get!! that doesn’t include the money and shit we will never know about. i am going to consider running for a position in my area, hell we can’t do any worse than these monsters are doing/ have done. okay i’m done for now. thank you for reading.
Asset forfeiture is becoming more and more pervasive in this country. To see the 800+ pages of property seized by our Government from citizens, many of whom have not been accused of, much less convicted of a crime see “forfeiture.gov”. If you are an innocent property owner, and you have the audacity to file a claim for your property (against an “administrative” forfeiture) the Gov. will next hit you with a “judicial” “in rem” (against the property) law suit, which will require the hiring of an attorney out of your own funds, motions, discovery etc. on which the Gov. can win clear title to your property with “a preponderance of the evidence” (their 51% to your 49%)–or even worse, they can “ex parte” (of their own accord) name your innocent party on a criminal indictment, and you won’t get your day in court until the criminal trial is finished, and they hold an “ancillary” hearing—which will be your first day before the judge. (they call this due process!)—and IF you win there, they don’t owe you back any interest or attorney fees for your trouble to get your own stuff back—and to top it all off, this could literally take YEARS. Screw up anywhere along the way (like miss a claim deadline) you automatically
lose. (to see some of the crap people have to put up with the “maybe’
get their own stuff back, see a website like “forfeiture defender”)
I meant name your innocent “property” not party—halfway through.