Does Marion County Prosecutor Terry Curry Care About Civil Liberties?; Prosecutor Expands Civil Forfeiture and Office's "Policing for Profit"

In one area in which I've done a lot of work, civil forfeiture, I found troublesome that former Marion County Prosecutor Carl Brizzi failed to follow the statute requiring that, once a judgment in a civil forfeiture action has been made, the prosecutor's office is to introduce evidence showing how much in law enforcement costs are for that particular case.  At that point a check for the balance is to be cut to the Common School Fund. The reason for the law is that it keeps law enforcement officials from profiting off civil forfeiture.

Now, nearly a year into his first term, I have to wonder whether we elected a prosecutor in Marion County who doesn't understand or care about the term "civil liberties."

Marion County Prosecutor Terry Curry

The Marion County Prosecutor's Office was not unusual in the practicing of keeping everything.. In a three year period that we looked at, only five counties paid civil forfeiture proceeds to the Common School Fund, a total of $95,500.  Law enforcement officials are walking away with tens if not hundreds of millions of dollars that should be going to the state's schools.  Prosecutors and judges all over the state simply are not following the law.  Of the counties doing civil forfeiture, only five appear to be following the law, most notably Wayne County (Richmond) which was found to zealously documentslaw enforcement costs and cuts checks to the Common School Fund on a regular basis.

In the last year or so, the Indianapolis Star did a series of articles on civil forfeiture, documenting numerous cases of the abuses associated with the system and how it has led to civil liberties abuses while prosecutors and law enforcement officials have profited off those abuses.  The stories were shocking.

In the midst of these stories, Marion County had an election for prosecutor which was won by Democrat Terry Curry.  Since Curry was a former defense attorney and since he is a Democrat, the party which claims to stand up for civil liberties, I figured Curry might curb some of the abuses of civil forfeiture under Brizzi's watch.  But Curry's rhetoric suggested otherwise. Despite the problems with civil forfeiture being exposed nearly weekly in the Indianapolis Star, Curry argued that civil forfeiture should be expanded to non-drug related offenses.

The first sign of trouble out of Curry's office was the decision to drop the Omnisource scrap metals felony charges in exchange for $300,000 for his office and law enforcement officials.  The trading of a criminal prosecution for cold hard cash is as bad if not worse than anything Brizzi was accused of in office.

What is thus far unreported though is that Curry has more than lived up to his campaign promise of expanding civil forfeiture.  The Marion County Prosecutor's Office is currently seizing cars, bank accounts and other property from individuals accused (but not necessarily charged) of all sorts of criminal activity.  The Prosecutor's Office is getting ex parte orders from courts to seize the property without their even knowing what is being done.

An example is a truck driver I talked to.  Because he's on the road most of the time, he uses a friend's apartment in Indianapolis for his mailing address.   Law enforcement officials searched the apartment office had the apartment based on allegations about the renter and found the truck driver's banking account information. Unbeknownn to the truck driver, the prosecutor filed a motion under seal and obtained an ex parte order freezing his bank account.   The truck driver had no idea what was happening.

Indeed that is the practice of this Marion County Prosecutor's Office. Law enforcement officials grab everything they can during a raid,then the Prosecutor's Office will file a complaint in court alleging that the property was used in connection with a crime, even though the prosecutors often have absolutely no evidence of that fact upon which they base when they make that claim.   (That whole ethical requirement that attorneys have a good faith basis in the truth of what they're filing is ignored by the prosecutor's office.)  Those prosecutors know that a large percentage of people will simply walk away from their property rather than hire an attorney and fight the allegations.

As I have said in this blog, what happened to Democrats who believe in civil liberties?  It is clear that Marion County Prosecutor Terry Curry cares not one whit about the Constitution and people's rights under it.

How to Get Around that Pesky Constitution: City Decides to Treat Prostitution as Civil Offense

The Indianapolis Star has an interesting piece this morning discussing the use of fines under a city ordinance as a substitute for criminal prosecution of prostitutes:

As Super Bowl XLVI draws huge crowds and international attention to Indianapolis, city officials and police will keep their eyes on a seedier side of the game that could bring hundreds of prostitutes to town.


Some will come in from other cities and advertise themselves on websites as "escorts" offering massages and other services. Police are issuing a warning: That next client you visit in Indianapolis just might be a cop.

Last week, the Indianapolis Metropolitan Police Department and the Department of Code Enforcement used the crowds visiting for the Brickyard 400 to set up a sting of unlicensed escorts as practice for more enforcement efforts leading up to the Super Bowl.

..
Kivett knows his nine-officer vice unit is outmanned when it comes to enforcing the city's prostitution ordinances. Teaming up with the Department of Code Enforcement, the city licensing agency, makes a lot of sense, he said.

"Most of them get more from that ticket than they do in criminal court," Kivett said.

Arrest a hooker, and she will face a night in jail and, in some cases, a small fine. But write her a ticket, and she'll face a fine of up to $2,500 and a court order to find a new line of work.

City Prosecutor Helen Marchal said the fines are up to $7,500 for repeat offenders. The typical fine is about $500.

With the civil case, you really hurt them by dipping into their pocketbooks," Marchal said. "If the arrest doesn't act as a deterrent, maybe the fine will."

A city ordinance requires escorts to get a license. An escort license is $103 for a person. Licensed escorts also must work for a city-approved escort agency, which needs a separate license that costs $319.

Because the city has no licensed escorts, Code Enforcement administrator Adam Collins said, any working in Indianapolis are violating the ordinance.

Police have the authority to write a ticket for the ordinance violation whenever they make an arrest, but Thursday they teamed with Code Enforcement agents and three metropolitan-area hotels to conduct stings.

...

To see the rest of the article, click here.

Unfortunately the reporter missed a critical part of the strategy involved in the City's treating this as a civil ordinance violation rather as a criminal offense - most of the constitutional protections that apply to protect someone charged with a crime, doesn't apply if the City treats the offenses as civil ordinance violation.

A person charged with prostitution under criminal law, is entitled to a public defender.  The prosecution can't use evidence obtained during an illegal search against the person charged.  Confessions obtained without advisement of one's rights can't be used.  A person charged with a crime can't be required to testify and that fact can't be used against you.  The burden of proof is beyond a reasonable doubt.

Now let's say the prostitute is given a ticket for violating a city ordinance.  That is civil in nature. The previously mentioned protections afforded a criminal defendant go out the window.   The person doesn't have a right to a paid public defender if poor.  To fight the fine, he or she would have to spend a few thousand dollars to hire an attorney.  The government can get in evidence not admissible during a criminal case. The burden of proof is much lower - the government can win with a simple preponderance of the evidence.   It's easier to just pay the ticket.

Prosecutors prefer to bypass the criminal justice stem because virtually all the individual protections in a criminal case are gone when the person enters the civil arena.  The odds are so stacked against the individual, most will simply throw in the towel rather than fight.  That is exactly  the reason prosecutors love civil forfeiture.  They can take people's property away from them without rights guaranteed them under the Constitution.

Regarding civil forfeiture, is it any wonder, the ethical lapses created by a system that allows law enforcement officials to claim other people's property?  Recently a woman told me how when her son was arrestedfor drugs, police officers started walking out with the stepfather's tools, each claiming ones they liked.  (Not sure how fancy tools were used in the use of drugs.)   With civil forfeiture laws and lack of judicial and administrative oversight, these ethical transgressions are indirectly condoned.

For another take on this story, see Advance Indiana.

An Example of Marion County Forfeiture Abuse: City Refuses to Return Woman's Vehicle Unless She Signs Waiver for Damage Police Caused During Search

Last week I received a call from a woman whose son was arrested and convicted for a drug offense early last year.  During the arrest, they took the mother's car out the driveway.   The police tore apart the mother's car searching - undoubtedly illegally - for drugs justify a civil forfeiture action.  Nothing was found.  The inside of the car though was severely damaged during the search.

Although the deadline for filing a civil forfeiture action passed over a year ago, the City will not return the vehicle to the Mother  Why?  She refuses to sign a form absolving the City of liability for damage to her car and won't pay $125 in storage fees to the owner of the impound lot. 

The City has absolutely no authority to hold onto this woman's vehicle.  To do so is theft and conversion.  To try to extract a waiver and $125 in exchange for the release of a vehicle the City has no right to possess is reprehensible and the attorneys involved should be held in contempt for their conduct .  It is long past time for Indiana judges to crack down on underhanded civil forfeiture tactics.

Candidate for Marion County Prosecutor Terry Curry Speaks Out On Civil Forfeiture; Curry Fails to Live Up to Campaign Promises

While googling, I ran across  Candidate for Marion County Prosecutor Terry Curry pontificating about civil forfeitures on his campaign website:

One of the most powerful law enforcement tools in combating crime is the ability to seize and forfeit property used in crime and resulting illicit profits of such crime. Unfortunately, forfeiture to date has been both underused and mismanaged. Yet another headline regarding our current Prosecutor:


Marion County Prosecutor
Terry Curry

Prosecutor’s Office Missed Deadline on $273K in Seized OmniSource Cash
Indianapolis Business Journal, April 28, 2010

By statute, the Prosecutor has the authority to seize and seek forfeiture of property used in specified crimes, as well as property derived from such crimes. The forfeiture action is a civil lawsuit which is separate and distinct from the related criminal prosecution. The most familiar example is the seizure of a vehicle and cash in conjunction with a drug bust. The statute further provides that the forfeiture proceeds will first go to reimburse law enforcement – both police agencies and Prosecutor – for the costs of the particular criminal investigation, with any surplus directed to the State’s Common School Fund.

In a recent article and corresponding editorial, the Indianapolis Star detailed that in spite of the fact that “millions of dollars in cash, vehicles, jewelry, houses and other possessions” are confiscated every year in Indiana, virtually no funds end up in the Common School Fund. In Marion County in 2009, no funds derived from forfeitures were deposited in the Fund.

The failure to generate recovery for the Common School Fund is merely one problem regarding forfeiture actions. Questionable practices related to forfeiture procedure include the lack of public accountability in the process, a pattern of awarding forfeiture work to political cronies under windfall compensation agreements, and failure to fully utilize the full scope of forfeiture provisions.

I will take the following steps to significantly improve use of forfeiture sanctions in Marion County:

● Improve accountability and transparency in forfeiture actions. There is currently no separate public record of each forfeiture action other than the record of the civil court case. We will post on the Prosecutor’s website the filing of each forfeiture action, the periodic status of each action, and the ultimate disposition of each action, including identifying the recipient of the forfeited proceeds. We will also post on the website the terms of the fee agreement if outside counsel is employed for the civil forfeiture.

● Strategic use of forfeiture provisions. We will more frequently undertake coordinated filing of criminal charges and a civil forfeiture, following the federal model of “parallel proceedings.” Under such model, authorities will coordinate the execution of search and arrest warrants, seizure of potential forfeitable property, and immediate investigation for tracing of illicit crime proceeds.

● Increased use of civil discovery to trace assets. Forfeiture has generally been limited to “grab and go,” in that law enforcement has been content to merely seize a vehicle and cash found in conjunction with an arrest. The ability to use discovery techniques in the civil forfeiture action, or just plain investigative tools, should be exploited to trace proceeds of the criminal conduct. Did the defendant acquire real or personal property with the illegal profits? If so, then we should locate such property and relieve the criminal of it.

● Expanded application of forfeiture. The most common use of forfeiture continues to be limited to drug prosecutions. We will expand application for forfeiture more readily to other criminal conduct where it is authorized. The most obvious example would be white collar crime, but would also include driving while intoxicated, child molesting, and criminal gang activity.

Another recent Indianapolis Star headline noted that police and fire budgets might take a hit because of revenue shortfalls in Marion County. Aggressive and imaginative use of forfeiture will not only make a defendant literally “pay for his crime,” but will potentially generate much needed funds for law enforcement and the Common School Fund in these difficult economic times. All that is required is the initiative and imagination to do so.

Candidate Terry Curry argued for civil forfeiture proceeds to go to the Common School Fund.  Prosecutor Terry Curry has argued that the Common School Fund is not entitled to any civil forfeiture proceeds and that law enforcement in Marion County is to continue keeping 100% of those proceeds.  Candidate Curry wants to extend the abuses of civil forfeiture to such things as DUI.  In other words, you wouldn't even have to be charged with DUI, Prosecutor Curry wants to take your car away in a civil forfeiture proceeding simply based on the allegation you drove your vehicle while intoxicated.  Candidate Curry also talks about more transparency and accountability for civil forfeiture actions in his office, including keeping updates of civil forfeiture actions on the prosecutor's website.  Has Candidate Curry lived up to this promise?  Of course not.

Thus far, Marion County Prosecutor Terry Curry has shown himself to be no friend of civil liberties. He's also not living up to his campaign promises.

Marion County Prosecutor Terry Curry Omits Facts on Civil Forfeiture, Makes Disingenous Argument for His Office's Continued Violation of Civil Forfeiture Law

Since, I have written a letter to the editor that the Indianapolis Star will hopefully publish on the subject, I'll keep this brief.

Marion County Prosecutor Terry Curry

This morning, the Indianapolis Star published a letter to the editor from Marion County Prosecutor Terry Curry on the subject of civil forfeiture.  In it he implores that people look at the "facts" regarding the civil forfeiture law.  To label Curry's letter as "disingenuous" is being charitable.   I'm not sure Prosecutor Carl Brizzi, for all his faults, would have penned something as intellectually dishonest as what Prosecutor Curry has done.

Curry says civil forfeiture requires a judicial finding that the property was used in the commission of a crime or derived from a crime.  That happens in maybe 10% of the cases.  In the other 90%, the case is dismissed as a result of an out-of-court settlement or there is a default judgment.   The property owner,faced with the enormous resources of the prosecutor and few of the protections afforded to criminal defendants, generally doesn't have the resources to hire an attorney and fight the forfeiture.

Curry also talks about the excess from civil forfeiture proceeds, above law enforcement cost, going to the Common School Fund.  He fails to mention that his office does not comply with the law and instead pockets 100% of the money.  The Marion County Prosecutor's Office hasn't paid the Common School Fund a dime in years.

Curry disingenuously suggests that the Indiana Supreme Court wasn't saying in the Serrano case that SB 215, which would have allowed law enforcement to keep 90% plus in law enforcement expenses, was unconstitutional.  The Supreme Court went out of its way in Serrano to make clear that the only thing that might be constitutional is a deduction of "actual" law enforcement expenses calculated on a "case-by-case basis," which is clearly not what SB 215 does.  For Curry to say that footnote in Serrano just said it was an "open question" regarding the constitutionality of the existing law is to ignore what the Court actually said in that case.  I would also note that Serrano was handed down while the Indiana General Assembly was considering SB 215.  It was almost certainly a message to the legislature that SB 215, which doesn't calculate "actual" law enforcement expenses on a "case-by-case basis,: would be unconstitutional.

Curry finishes his letter by saying "Gov. Daniels' own Department of Education" supported SB 215.  I am a bit concerned that someone in Curry's position would think that the Indiana Department of Education isunder the Governor, when it is in fact under the Indiana Superintendent of Public Instruction, a separately elected state-wide official.  Superintendent Tony Bennett supports the Governor' decision to veto the bill.

Finally, I thought Democrats believe in civil liberties and supported schools.  Why is the Curry, a Democrat, advocating people's property be seized without even being charged with a crime?  Why is Curry advocating that money be diverted from schools?  Why isn't Curry's office complying with the civil forfeiture law and insisting that law enforcement expenses be calculated on a case-by-case basis with the excess paid to the Common School fund?  Does Marion County Prosecutor Terry Curry believe  he is above complying with the laws he is sworn to enforce?  Apparently so.

It's Time for State's Judges to Enforce Civil Forfeiture Law By Demanding a Case-By-Case Calculation of Law Enforcement Costs With Rest Going to Common School Fund

In today's paper, the Indianapolis Star has an editorial pointing out the need for there to be changes to clarify the civil forfeiture law.  This is one area where I've always disagreed with the Star.  The problem is not so much that the civil forfeiture law is "vague" as it simply not followed by the county prosecutors and law enforcement officials.  More importantly though the problem is that the state's trial court judges are not enforcing the existing law. 

Let's go back to Saturday's Indianapolis  Star and examine comments made by two individuals involved in forfeiture, Tom Michalek chief financial officer of the Department of Public Safety and Chris Gambill a private attorney who does civil forfeiture on a contract basis with several county prosecutors.  Here's the article in part:

Marion County forfeiture funds make up only a little over 1 percent of Marion County law enforcement costs, but they pay for the majority of the Metro Drug Task Force, which runs on about a million dollars per year, said Tom Michalak chief financial officer for the city of Indianapolis' Department of Public Safety.

"The Marion County taxpayer doesn't pay for (the Metro Drug Task Force)," Michalak said. "The Marion County criminal pays for them."

The budget of the Marion County prosecutor's office anticipates receiving $300,000 in forfeiture funds this year -- and not receiving those funds will make it more difficult for the agency to do its job, Prosecutor Terry Curry said last month.

For now, Michalak said, Indianapolis won't change its practice of putting the money toward law enforcement. And Chris Gambill, an attorney who handles forfeitures for several Indiana counties on a contract basis, noted that the Supreme Court opinion was nonbinding and said he would want stronger legal guidance before he would encourage his clients to part with their seized asset money.

Michalek and Gambill both seem to believe that THEY get to decide how much money is kept by law enforcement as "costs of law enforcement" under Indiana's civil forfeiture law.   Wrong.  Under the law,  judges are supposed to be making the determination of law enforcement costs, not law enforcement officials.  Let's examine the relevant statutes:
First, a civil forfeiture action is only authorized for the recovery of law enforcement costs:

IC 34-24-1-3(a) The prosecuting attorney for the county in which the seizure occurs may, within ninety (90) days after receiving written notice from the owner demanding return of the seized property or within one hundred eighty (180) days after the property is seized, whichever occurs first, cause an action for reimbursement of law enforcement costs and forfeiture to be brought by filing a complaint in the circuit, superior, or county court in the jurisdiction where the seizure occurred...

Another statute details the procedure, including that judges are supposed to make a determination of law enforcement costs, language that certainly seems to require that the county prosecutor produce evidence of the costs involved it the action:

IC 34-24-1-4(d) If the court enters judgment in favor of the state, or the state and a unit (if appropriate), the court shall, subject to section 5 of this chapter:


(1) determine the amount of law enforcement costs; and

(2) order that:

(A) the property, if it is not money or real property, be sold under section 6 of this chapter, by the sheriff of the county in which the property was seized, and if the property is a vehicle, this sale must occur after any period of use specified in subsection (c);

(B) the property, if it is real property, be sold in the same manner as real property is sold on execution under IC 34-55-6;

(C) the proceeds of the sale or the money be:

(i) deposited in the general fund of the state, or the unit that employed the law enforcement officers that seized the property; or

(ii) deposited in the general fund of a unit if the property was seized by a local law enforcement agency of the unit for an offense, an attempted offense, or a conspiracy to commit an offense under IC 35-47 as part of or in furtherance of an act of terrorism; and

(D) any excess in value of the proceeds or the money over the law enforcement costs be forfeited and transferred to the treasurer of state for deposit in the common school fund.

In Marion County, officials are not required to put forth any evidence of law enforcement costs.  Instead they disingenuously claim that law enforcement costs refer to ALL law enforcement costs in the county and unless civil forfeiture covers all those costs (it currently is about 1%) then the county doesn't have to pay anything to the Common School Fund.

Wrong.  In 1998, he Indiana legislature passed IC 34-6-2-73 to make clear that "law enforcement costs" are to be calculated on a case-by-case basis, not how Marion County does it.

IC 34-6-2-73 "Law enforcement costs", for purposes of IC 34-24-1, means:

(1) expenses incurred by the law enforcement agency that makes a seizure under IC 34-24-1 (or IC 34-4-30.1 before its repeal) for the criminal investigation associated with the seizure;

(2) repayment of the investigative fund of the law enforcement agency that makes a seizure under IC 34-24-1 to the extent that the agency can specifically identify any part of the money as having been expended from the fund; and

(3) expenses of the prosecuting attorney associated with the costs of proceedings associated with the seizure and the offenses related to the seizure.

The problem is that the law enforcers, including county prosecutors, who are sworn to uphold the law,  have no problem breaking the law if it lets their agencies keep moor loot.   The people who are supposed to put a stop to these legal violations is the state's trial judges.  It is time that those judges step up and do their jobs.   Judges need to start making law enforcement officials PROVE their law enforcement costs on a case-by-case basis and demanding that a check for the excess by cut to the Common School Fund.  That's what the existing law requires.  There is nothing vague about that.

Governor Mitch Daniels Vetoes Forfeiture Bill That Would Have Provided Windfall to Law Enforcement; Attorney General Greg Zoeller Fibs About How Forfeiture Works in Practice

Indiana Governor Mitch Daniels

Today, it was announced that Governor Mitch Daniels vetoed Senate Bill 215 which would have given prosecutors and law enforcement officials more than 85% of all civil forfeitures.  Governor Daniels veto statement is as follows:

Dear President Pro Tem Long and Members of the Indiana State Senate:

By the authority vested in me as Governor of Indiana, under the provisions of Article 5,
Section 14, of the Constitution of the State of Indiana, I do hereby veto Senate Enrolled
Act 215, enacted during the regular session of the 117th General Assembly, as violative of
the Indiana Constitution, which provides that the proceeds from “all forfeitures” shall go
to the Common School fund.

The Indiana Supreme Court, on April 27, reinforced that point, possibly excepting the
“limited diversion” of the actual expenses of obtaining those proceeds. Fairness to the
General Assembly requires noting that legislators did not have the benefit of the court’s
opinion, which was issued in the session’s final days.

This bill would take more than ninety cents of every dollar collected through forfeiture
for the “expense of collection” rather than sending it to the Common School fund. That
is unwarranted as policy and constitutionally unacceptable in light of the Supreme
Court’s recent guidance and the plain language of Article 8, Section 2 of the Indiana
Constitution.

Sincerely,

Attorney General Greg Zoeller

Mitchell E. Daniels, Jr.

Despite being slapped down by the Indiana Supreme Court and the Governor in one week's time, Attorney General Greg Zoeller continued to defend his position that law enforcement gets to keep civil forfeiture proceeds:

“I respect the Governor’s position, and as Attorney General I will continue to work with legislators, prosecutors and judges in an effort to reform the current civil forfeiture system so that there is more clarity over how criminals’ seized assets are apportioned and to more strictly regulate the use of outside counsel. Civil forfeiture is an effective weapon that can be used appropriately and effectively against well-funded drug traffickers who seek to make inroads into our state. It is my hope that another legislative proposal can be developed for the 2012 session that would address the concerns that have been raised. In the meantime, there is currently a judicial determination for every civil forfeiture action a prosecutor files, since a judge always must review it before it is approved, and the veto hasn’t changed that,” Zoeller said.

To characterize Zoeller as being disingenuous is charitable.   Many forfeitures are simply handled through out of court settlements with the only thing that will be in the court file is a stipulation of dismissal.  There is no judicial oversight over those cases.  In most cases, the defendant never responds to the complaint and a default judgment issued.  Then there are cases where they're settled before they're even filed in court, the so-called "roadside forfeitures."

Regardless in virtually no cases do the courts make a determination of law enforcement costs as Zoeller is suggesting.  They simply just rubberstamp whatever is given them. There is only county in the state where judges regularly sign off on a calculation of law enforcement costs is one - Wayne County.  (Disclaimer there are some 20-25 counties that don't do civil forfeiture or rarely do it.)

Only $95, 500 was paid to the common school fund in the last three years, with only five counties paying anything.  (Marion County has paid nothing.)  That is out of tens of millions of dollars.  That means about 99.9% of the funds are "law enforcement costs" according to Zoeller. Does Zoeller really believe the courts are approving that law enforcement keep 99.9% of civil forfeitures as "costs" of the cation.

Maybe it's time for Attorney General Zoeller to do his job and enforce the law with respect to civil forfeitures.

Govenor Daniels Needs to Veto SEA 215, New Indiana Supreme Court Opinion Suggests New Law Giving Law Enforcement Civil Forfeiture Windfall Is Unconstitutional

Supreme Court Chief Justice
Randall T. Shepherd

Under Indiana's civil forfeiture statute, prosecutors and law enforcement officials are only entitled to keep proceeds relating to the cost of the particular law enforcement action.  The rest is to be paid to the Common School Fund.  Last year a number of news reporta and a lawsuit filed by my law firm exposed the fact that prosecutors and other law enforcement officials were pocketing 100% of civil forfeiture proceeds, including Marion County which hasn't a dime to the Common School Fund in years.  According to the Marion County Prosecutor's Office "law enforcement expenses" means all law enforcement expenses in the county regardless of whether they are connected to the seizure, an interpretation that is contradicted by the definition of "law enforcement costs" in IC 34-6-2-73.  Other county prosecutors have differing interpretations, almost all of which lets them pocket all civil forfeiture proceeds. 

Caught with their hand in the proverbial cookie jar, county prosecutors, their advocate Executive Director of the Indiana Prosecuting Attorney's Council Stephen Johnson, and Attorney General Greg Zoeller, helped pushed through Senate Bill 215, which allow prosecutors to deduct "administrative costs" before giving 85% of the booty to law enforcement.  Education would only get 15% of what is left.  For inexplicable reasons, Superintendent of Public Instruction Tony Bennett went along with this lopsided deal that hurts schools.

It should be noted that in the one county - Wayne - that followed the law, only 26% of the civil forfeiture proceeds were deemed law enforcement costs with an average of 74% of the money being paid to the Common School Fund.

Indiana Attorney General
Greg Zoeller

Many people have questioned whether any proceeds can be diverted from the Common School Fund as the Constitution (Article 8, Section 2) says that that fund is to be made up of "all forfeitures."  Faced with questions regarding the constitutionality of law enforcement pocketing civil forfeiture proceeds, Attorney General Zoeller in 2010 wrote an advisory opinion for "his clients" which said that "all" as used in the constitutional didn't actually mean "all" and that the legislature could divert civil forfeiture proceeds to law enforcement.

On the eve of consideration of Senate Bill 215, Chief Justice Shepherd, writing for a unanimous Supreme Court, sent a clear message to the General Assembly that what they were about to be doing would be considered unconstitutional.  In particular, Footnote #3 of Serrano v. State is most telling:

From the proceeds, the court may except law enforcement expenses incurred ―"for the criminal investigation associated with the seizure" and a prosecutor‘s expenses associated with the forfeiture proceeding and the expenses related to the criminal prosecution. Ind. Code § 34-6-2-73 (2008). Whether this limited diversion, calculating actual expenses on a case-by-case basis, is consonant with the constitutional command that ―"all forfeitures" be deposited in the Common School Fund is an unresolved question. (emphasis supplied.)

Serrano dealt whether the State established sufficient evidence that the truck was used in connection with the transportation of cocaine. A divided Indiana Court of Appeals ruled against the State, overturning the forfeiture of Serrano's truck.  The issue of the division of proceeds between law enforcement and the Common School Fund wasn't even raised in the trial court or at the Court of Appeals.

Since the Supreme Court was inclined to uphold the Court of Appeals decision, the Court could have simply denied transfer.  Instead the Supreme Court went out of its way to discuss the history of the Constitution and the Common School Fund.  The Court in Footnote #3 clearly rejected the Zoeller opinion, finding unanimously that the constitutional "all" includes civil forfeitures and that at best only the "limited diversion" of "actual" law enforcement expenses might be permitted under the Constitution.  

Translation:  while the status quo regarding deducting "law enforcement expenses" might be constitutional (assuming the law regarding calculating law enforcement costs is actually followed contrary to present practice in most counties whee law enforcement pockets 100% of the money), certainly the 85% bill, which gives law enforcement a windfall at the expense of schools, will be found unconstitutional.

This is a bill that definitely deserves a gubernatorial veto.

Indiana Supreme Court Unanimously Rejects AG''s Opinion That Constitution's "All Forfeitures" Does Not Include Civil Forfeiture

Today, the Indiana Supreme Court handed down a significant opinion on Indiana's civil forfeiture law.  The case dealt with the forfeiture of a truck and the evidence that supported that forfeiture.  While the case was not directly on point, the Supreme Court made note of "[t]he relative ease of effecting such forfeiture and the disposition of the assets have become a matter of public note" and even cited the front page November 14, 2010 article  written by Heather Gillers Mark Alesia & Tim Evans, Cashing in on Crime, Indianapolis Star, Nov. 14, 2010.

Indiana Attorney General
Greg Zoeller

To summarize, Indiana's Constitution says that the the Common School Fund will be made up of "all forfeitures."  On May 12, 2010, the Indiana Attorney General Greg Zoeller wrote an advisory opinion at the request of Steve Johnson of the Indiana Prosecuting Attorney's Council saying that "all forfeitures" only meant criminal forfeitures, not civil forfeitures.  I have no doubt that the AG's office issued that opinion not as an objective interpreter of the law, but rather as an advocate of county prosecutors wanting to continue with the status quo of pocketing all civil forfeiture proceeds.

Under Indiana's civil forfeiture law, law enforcement is only to keep the costs of the action, with the rest going to the common school fund.  Instead almost almost all counties doing civil forfeiture have kept all the money, including Marion County which hasn't contributed a dime to the common school fund in years.  Only $95,500 in  was paid to the common school fund by Indiana's 92 counties during the last three years.  A bill currently in conference committe would eliminate the law enforcement cost provision in favor of letting law enforcement keep 85% of the civil forfeiture loot.

Footnote 3 by the unanimous court clearly reveals the unwillingness of the Court to accept the AG's opinion that "all" doesn't actually mean "all."

From the proceeds, the court may except law enforcement expenses incurred ―for the criminal investigation associated with the seizure‖ and a prosecutor‘s expenses associated with the forfeiture proceeding and the expenses related to the criminal prosecution. Ind. Code § 34-6-2-73 (2008). Whether this limited diversion, calculating actual expenses on a case-by-case basis, is consonant with the constitutional command that ―all forfeitures‖ be deposited in the Common School Fund is an unresolved question.

At the very least, anything above ACTUAL law enforcement costs is going to be considered unconstitutional. The 85% figure in the bill in conference is far above actual costs and certainly wouldn't pass constitutional muster. Likewise the practice of keeping 100% of the money, i.e. pretending all the money is law enforcement costs, wouldn't find a friendly audience with the Indiana Supreme Court.

In Judge Oakes' opinion dismissing our case, he suggested a better "mule" to ride would be a constitutional challenge.  So we recently amended the complaint to change it from a qui tam into a straight constitutional challenge to law enforcement keeping civil forfeiture proceeds as costs.  The irony is that Attorney General Greg Zoeller could have worked on a resolution which ensured counties complied with the "law enforcement cost" provision, but instead chose to play hardball and get the 85% provision written into the law.  Because of those hardball tactics, Zoeller, IPAC's Steve Johnson and county prosecutors, are well on their way to going from getting 100% of civil forfeiture to getting nothing.

Judge Tosses Out Civil Forfeiture Lawsuit, Expresses Doubt Civil Forfeiture Law is Constitutional

Yesterday Marion County Superior Court Judge Timothy Oakes issued an order dismissing our civil forfeiture action brought against the states' prosecutors on the basis that it didn't fall within the type of action brought under Indiana's qui tam statute.  Of course, Attorney General Greg Zoeller jumped on the opportunity to praise the court for dismissing the "meritless" action.

Attorney General Greg Zoeller

In his press release, AG Zoeller suggests that the AG had already issued an opinion on the subject and would continue to work with the legislature on refining the law.  Apparently Greg Zoeller didn't bother to read the rest of Judge's Oakes opinion, in particular the section which bashed the AG's advisory opinion on civil forfeiture and almost invited us to simply amend the complaint to fix standing issues and proceed to challenge the constitutionality of the law.

Some background is necessary.  Article 8, Section 2 says that the Common School Fund will be made up of a number of things including money acquired "from all forfeitures which may occur."  A few years ago, the Attorney General, under Steve Carter, issued an advisory opinion saying that this statute did not apply to "civil" forfeiture, those forfeitures which occur where the forfeiture action is filed separately in civil court, usually against the property that has been seized.  I have no doubt the AG issued that opinion as an advocate for law enforcement rather than as an objective interpreter of the law.

Let's see what Judge Oakes says in the part of the opinion Zoeller ignores:

While Mr. Lenkowsky may have chosen the wrong legal mule to ride here to pursue this issue, the merits of the issue at the heart of the matter do not deserve to be ignored.  Troubling to this Court is the relative lack of any logic or consistency in the assessment of law enforcement costs across the state if not in Marion County.  Little, if any, logical assessment, much less consistent assessment, appear to enter the Prosecutor's mind as they determine their take for pursuing the forfeiture actions.

On a deeper level, despite an Attorney General Opinion and some precedent in this state, this court's simple reading of Article 8, Section 2 of the Indiana Constitution would indicate that it applies to all forfeitures.  Past scholars have focused on the history of fines for penal violations and the placement of the forfeiture section after the phrase "fines assessed for breaches of the penal laws of the State" in our Indiana Constitution.  However, both clauses seem to be set off by semicolons making each independent of the other.  Thus, the phrase "from all forfeitures which may accrue" would appear to have few, if any, limits.

Regarding paragraph one, AG Greg Zoeller has stood on the sidelines for years while prosecutors and law enforcement kept 100% of the money when they were only entitled to "law enforcement costs" under Indiana.  He did absolutely NOTHING to enforce the law.  Now with his "clients" caught with their hand in the cookie jar he tries to pretend to be a reformer, while decrying as "meritless" the very lawsuit that finally forced him to reluctantly enter into the game.

Regarding paragraph two, I agree 100% with Judge Oakes.  I think the civil forfeiture law almost certainly violates the Constitution for the very reason the judge cites.  We were willing to stop short of that challenge, however.  We see value in a civil forfeiture law if it is applied with the limits of "law enforcement costs only" which would prevent policing for profit.  The 85% windfall prosecutors and law enforcement types are attempting to get the legislature to write into stone is so far above actual law enforcement costs that it most certainly creates policing for profit.  At best it should be 50-50.  The Wayne County example shows that real law enforcement costs are closer to 25%.

Because of AG Zoeller's stubbornness, his refusal to ask for any accounting of the money diverted from our public schools, his refusal to enforce the existing law, his attempting to write an 85% windfall into the law, we may well have no choice but to simply amend the lawsuit to ask that the court strike down the civil forfeiture law as unconstitutional.  We feel very confident, for the reasons Judge Oakes cites, that we will ultimately prove successful should we choose to pursue that option.