Dispatches from the Creation Wars

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.

And that's just the federal level; most asset forfeitures take place at the local level, where the local law enforcement agency that seizes the cash typically gets to keep it. And here is perhaps the most appalling aspect of Smelley's case:

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."

This, I would suggest, is the real crime here. This is, quite literally, highway robbery -- only the perps bring a badge instead of a gun.