Imagine driving to the Indy 500 or NCAA Hall of Champions in Indianapolis and getting your spending money or vehicle seized by the police on some allegation that either was involved somehow in some crime somewhere. Under civil forfeiture, law enforcement can seize property, including cash, from innocent people on the mere suspicion that it was involved in a crime. In many jurisdictions, the agencies conducting the seizures get to keep the proceeds of forfeiture, even if the original owner is never charged with, much less convicted of, a crime.
The Indiana Constitution is supposed to limit the considerable incentives for abuse by directing the forfeiture proceeds to the Common School fund. But as it turns out, state and local law enforcement agencies are pirating the funds for their own expenses, leaving little left for schools. Now, state lawmakers on the Courts and Judiciary summer study committee are considering whether this law enforcement workaround is blatantly unconstitutional.
Local law enforcement officials are claiming that forfeiture proceeds provide essential resources for agencies. In one example, Delaware County Prosecutor Jeff Arnold told the committee:
Civil asset forfeiture allowed me to buy laptops for all my deputies so they were able to bring them into court. I know that sounds rather primitive, but that’s where we were able to find the money.
Attorney General Jeff Sessions and proponents of civil forfeiture made this argument earlier this summer when the Justice Department rolled back modest, Obama-era limits on the practice. Under the new rules, state and local law enforcement can again collude with federal officials to evade their own state laws limiting forfeiture.
But the problem with this narrative, whether from Delaware County, Indiana or the U.S. Department of Justice, is that no matter what good allegedly comes from forfeiture proceeds, the proceeds are still ill-gotten. Law enforcement agencies in need of additional funding or resources should go through the appropriate process in their statehouses and municipalities—not seize and forfeit private property from innocent people who are never charged with a crime but happen to be in the wrong place at the wrong time.
The Institute for Justice (IJ) filed a lawsuit in 2016 in Indianapolis on behalf of forfeiture victims and concerned Hoosier families to challenge local agencies’ unconstitutional system of “policing for profit” instead of obeying the law and funding schools. That case is still ongoing.
Fortunately, innocent Hoosiers have a readily available remedy: enforce the Indiana Constitution and stop law enforcement from pocketing forfeiture proceeds.
Lawmakers should follow Colorado’s example in bolstering transparency. In June, Governor John Hickenlooper signed legislation, HB17-1313, that creates a public database of every seizure, forfeiture, related criminal charge, and use of forfeiture proceeds. This database will provide policymakers with an important tool to rein in forfeiture abuses in the future. Equally important, the bill prevents state and local agencies from colluding with the federal government to circumvent the greater protections in Colorado’s state forfeiture law.
Indiana legislators should also look to Nebraska’s 2016 forfeiture reforms, which were enacted after the previous laws were declared unconstitutional. Nebraska lawmakers repealed the unconstitutional civil forfeiture law and replaced it with criminal forfeiture—a single process in which the suspect’s guilt is determined and then, if found guilty, the question of the connection of proceeds and other assets to the crime are determined in the same courtroom. Moreover, Nebraska law now provides legal counsel for indigent innocent owners, prevents prosecutors from using “suspicion, suggestion, supposition or speculation” when attempting to forfeit property, and expressly affirms the legality of carrying as much cash as one wants.
Indiana lawmakers implementing forfeiture reforms similar to Colorado and Nebraska would go a long way to protecting innocent Hoosiers from legalized abuse.