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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.
Radley Balko (email@example.com) is a senior editor at reason.