Bleeding heart conservatives...

There are many places where commonly held conservative/liberal dichotomies break down. One example is the way that Supreme Court Justices known as strict constructionsts such as Thomas and Scalia often side with their usual opponents on the left side of the bench when it comes to things like sentencing laws that restrict access to the Constitutional right to a trial by jury.

Yet another example is with regard to forfeiture laws. The Missoula Independent had a recent good article called Proving a Negative, in which a Missoula County case is discussed. The case, which centers on the confiscation of a Cadillac Escalade and its contents, sounds a little more like Miami than Montana, but certainly has all of the smell of a drug operation. The operative point, however, is what the defense attorney involved calls the "awkward position of rebutting county claims when the county hasn’t filed any criminal charges alleging drug-related wrongdoing."

Indeed, it doesn't sound as though there is any plan to pursue criminal charges against the individual involved, but the stuff is still forfeited unless the defendant can prove his innocence.

Casual conservatives have tended to ignore the growing role of civil forfeiture. Part of this is that such forfeitures fund law enforcement departments without resort to taxes, and part is probably because they are still stuck in old paradigms where the balance of power was perceived to have swung in favor of criminals.

When actually familiarized with the attentive arguments of conservative/libertarian organizations like the Cato Institute, which sees forfeiture laws as being increasingly abusive of traditional due-process rights and as threatening the centrality of property rights in a free society, many "law-and-order" conservatives begin to get much more uneasy. The issue has, in the past, united left and right -- and this should continue to be the case.

Strong proponents of the legitimacy of current forfeiture laws say that reforms have largely eliminated abuses and enshrined proper due process for innocent individuals whose property is seized in the course of these cases. This may be true, and it is certainly true that forfeiture laws have their theoretical common-law grounding in very old and well-tested precedents regarding things like smuggling.

It is still hard not to be uncomfortably aware of the many temptations that forfeited assets can conceivably have for law-enforcement agencies increasingly dependent on them as sources of departmental funding. There may not be a problem in Montana, but Montana Headlines is grateful for those defense attorneys who challenge questionable forfeitures. If problems are identified, conservative legislators and citizens need to engage those issues side by side with concerned liberals -- even if the underlying motivations of each may be somewhat different.