J. Justin Wilson
J. Justin Wilson · March 30, 2022

INDIANAPOLIS—Yesterday, the Indiana Supreme Court issued a decision that has ramifications for Hoosiers whose property is seized using civil forfeiture—the controversial legal process that allows police and prosecutors to keep property without convicting someone of a crime. In a divided decision, the Indiana Supreme Court ruled that the government must prove it is entitled to keep seized property, but forfeiture victims do not have a right to use their seized funds to hire an attorney. Because civil forfeitures take place in civil—not criminal—court, victims generally don’t have a right to an attorney. The practical ramification for many forfeiture victims is that while they can defend against forfeiture of their property in court, they may have to represent themselves.

Chief Justice Loretta Rush disagreed with the decision and argued that some exceptional circumstances in a civil forfeiture case could require the state to appoint an attorney for the property owner. The Institute for Justice argued the case before the court.

“Anyone who has watched ‘Law & Order’ knows that in criminal court Americans have a right to an attorney, and that if they cannot afford one, the government has to appoint one for them,” said Institute for Justice (IJ) Attorney Marie Miller, who argued the case. “But because civil forfeiture occurs outside the criminal process, it turns Americans’ understanding of the justice system on its head. Property owners are guilty until proven innocent and they have no right to an attorney to fight for their rights.”

“No person’s property should be forfeited without the government carrying its burden of proof,” said IJ Attorney Sam Gedge. “This decision reaffirms the principle that Hoosiers are due their day in court. At the same time, it effectively denies many of them the help of an attorney.”

The case was brought against Terry Abbott in 2015. Mr. Abbott initially hired an attorney to represent him in the forfeiture case, but because the government had seized his savings, he could not afford to keep paying his attorney and so was left defending against the action himself.

“Mr. Abbott is like many property owners who cannot afford to hire an attorney to fight for their rights,” said Miller. “This decision allows forfeiture cases to remain woefully lopsided: the state with all its resources on one side and an unrepresented, oftentimes-impoverished property owner on the other.”

IJ is the leading defender of civil forfeiture victims, representing people in court, highlighting the many problems with civil forfeiture, and advocating for the abolition of civil forfeiture in legislatures. In 2019 it won a unanimous U.S. Supreme Court case challenging the state of Indiana’s attempt to seize and keep Tyson Timbs’ car. In Indianapolis, IJ brought a class action lawsuit against one of the state’s most prolific contingency-fee prosecutors. IJ has also filed a class action lawsuit against the Drug Enforcement Administration and Transportation Security Administration over searches and seizures at airports. And most recently, IJ launched a class action lawsuit against Harris County’s (Houston) civil forfeiture practices. Thanks in part to IJ’s advocacy, this year Maine joined several other states that have ended civil forfeiture, leaving only the state’s criminal forfeiture process.

Related Content