Recommendations and Conclusion

Indiana’s substantial forfeiture reporting problems presented in this report, along with past and present abuses, call for sustained action in courthouses and the statehouse to push back against the state’s unjust forfeiture system.

Most obviously, Indiana lawmakers should insist on full transparency and accountability for all forfeiture activity. As is abundantly clear from my results, the state needs to improve its reporting system. At a minimum, it should impose meaningful penalties for failing to report as required and adopt systems for improving accuracy. ¹

And as long as agencies are allowed to keep and spend forfeiture proceeds, the state should require them to report on that spending and undergo regular independent audits of forfeiture accounts. A 2022 news investigation showed the need to ensure forfeiture funds are subject to public scrutiny. The investigation revealed that the former prosecutor for Vanderburgh County had deposited $25,000 in forfeiture revenue into the account of a (now-defunct) nonprofit he ran. Between 2016 and 2021, someone at the nonprofit used the account as a slush fund, withdrawing more than $14,000 in cash and spending thousands more “at fast food restaurants, women’s clothing stores, hair salons and beauty retailers, convenience stores, pharmacies and supermarkets and in out-of-town shopping sprees.” ²   

Given both the risks to property and due process rights, and the need to ensure accountability for public funds, better reporting is crucial for helping lawmakers understand both how forfeiture works and how it can be reformed. Still, better reporting is not an end in itself, and my deep dive into 415 reported cases vividly illustrates how innocents in Indiana are likely being victimized by a system that makes it difficult to fight for the return of unjustly seized property—or even to reach a courtroom to make their case.

The surest reform would be to end civil forfeiture, as New Mexico and Maine have done, and rely instead on criminal forfeiture. ³ Owners would get the full measure of due process protections available in criminal proceedings. And the state could still separate convicted criminals from the fruits or instrumentalities of their crimes. But first, it would have to prove a crime occurred and the property’s owner committed it.

In addition, Indiana should require that forfeiture revenues be deposited into a neutral fund. ⁴ Indiana’s Constitution intended for forfeiture revenues to be deposited into the Common School Fund to benefit public schools throughout the state. Restoring the original intent of the state constitution with a law requiring that proceeds flow to the Common School Fund would go a long way toward reducing forfeiture’s perverse incentives. An Institute for Justice case currently before the 7th U.S. Circuit Court of Appeals could also bring an end to the perverse incentives baked into Indiana’s unique contingency-fee arrangements. ⁵ But if courts fail to do so, the legislature should step in to prohibit the practice.

Indiana should also expand protections for innocent third-party owners by ensuring the government always bears the burden of showing an innocent-owner claimant should be deprived of their property, regardless of the type of property.

To truly respect people’s property rights and due process protections, Indiana should strengthen forfeiture reporting and enact a comprehensive package of reforms that includes ending civil forfeiture and eliminating the financial incentive. It has been 10 years since New Mexico enacted this exact package of reforms without the subsequent increase in crime predicted by civil forfeiture’s defenders, showing that states can bolster the pursuit of justice over revenue without sacrifices to public safety. ⁶ Hoosiers who expect the government to honor their constitutional rights deserve nothing less.