INDIANAPOLIS—This morning, Judge James R. Sweeney II of the U.S. District Court for the Southern District of Indiana ruled that an Institute for Justice (IJ) challenge to Indiana’s system of for-profit civil forfeiture prosecutors can proceed as a class action lawsuit. Unlike every other state in the nation, Indiana outsources forfeiture cases to private lawyers, who prosecute them on a “contingency fee” basis. The formula is as simple as it is pernicious: Forfeit more, profit more. With today’s ruling, a class-action challenge to that system will proceed.
“Every forfeiture defendant has the right to a prosecutor who is financially disinterested and whose incentive is to do justice, not turn a profit,” said IJ Attorney Sam Gedge. “Prosecutors wield enormous power, and in our justice system there must be no question that they are exercising that power in the public’s interest—not for personal gain. Today’s ruling is a critical first step in ending Indiana’s corrosive system of for-profit prosecutions.”
The class action is spearheaded by 21-year-old Amya Sparger-Withers, who was targeted last year by Indiana’s most prolific for-profit prosecutor: Joshua N. Taylor. Days after she filed the lawsuit, Taylor jettisoned his forfeiture case against her, returned the property seized from her, and then insisted that she could no longer challenge his financial self-interest in forfeiture prosecutions statewide. The court today rejected that bid to end the case. Because “Taylor has the effective power … to moot out any individual who brings a case of this sort,” the court ruled, the case may proceed as a class action on behalf of all current and future targets of Taylor’s for-profit prosecutions. “Sparger-Withers’ central contention is that contingency fee civil forfeiture prosecutions violate the Due Process clause,” the court reasoned, and “[t]hat contention is capable only of class-wide resolution.”
Systemic relief is key. In Indiana, civil forfeiture is big business, with the incentives skewed toward personal benefit, not justice. Financial self-interest has even been touted as a feature, not a bug. In 2010, for example, then-Marion County Prosecutor Carl Brizzi justified farming out cases to a private lawyer because “he doesn’t get paid unless the state gets paid, so obviously he’s motivated to do the best job he can.” And across the state, contingency-fee prosecution contracts are often doled out to politically connected insiders.
“In America, prosecutors cannot have a personal financial stake in the cases they prosecute,” said IJ Attorney Mike Greenberg. “Indiana’s for-profit prosecutions distort prosecutorial incentives and delegitimize the justice system. It’s past time to put them in the past.”
Civil forfeiture proceedings lack many protections Americans are accustomed to in criminal trials. Police and prosecutors can take your belongings without ever charging you with a crime, much less convicting you of one. Unlike in criminal trials, defendants in civil forfeiture cases aren’t entitled to a free lawyer. Often, they must prove their own innocence. And for many people caught up in civil forfeiture cases, it simply doesn’t make economic sense to pay for a defense lawyer since the cost of representation often exceeds the amount seized. At every turn, the deck is stacked in favor of the government.
IJ is the leading defender of civil forfeiture victims, representing people in court, highlighting the many problems with civil forfeiture through strategic research, and advocating for the abolition of civil forfeiture in legislatures. In Los Angeles, IJ brought a class action lawsuit against the FBI over its raid of—and its attempt to forfeit the contents of—hundreds of security deposit boxes. IJ also brought a class action lawsuit against the Drug Enforcement Administration and Transportation Security Administration over searches and seizures at airports. In 2020, IJ released the latest edition of its leading research report outlining the many abuses of civil forfeiture nationwide.