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Sunday, November 07, 2010

Ind. Courts - "Forfeiture law invites abuse of the system"

An outstanding, must-read investigative piece on asset forfeitures begins on the front-page of today's Indianapolis Star, reported by the team of Heather Gillers, Mark Alesia and Tim Evans. This is the same team that in mid-August had the report headed "Despite law, schools get little of assets seized from crime suspects." Here is a sample from today's very long story:

... Indiana's laws on asset seizure and forfeiture are so lax -- so ripe for abuse -- that legal experts, judges and even some of those who stand to gain most have become increasingly troubled.

An Indianapolis Star investigation found that in the absence of a clear statute, prosecutors across the state play fast and loose with forfeiture funds -- keeping as much as they want and using the money
however they like.

In short, some prosecutors are treating seized money less like a regulated source of revenue and -- the way legal experts see it -- more like a slush fund, creating a dangerous incentive to police for profit.

The Star's investigation found numerous examples of questionable practices, including:

Prosecutors using liberal definitions of law enforcement costs and thus keeping all of the cash and money derived from seized assets. (State law calls for excess money to be turned over to schools.)

Law enforcement deciding how money is spent, rather than allowing it to go through the normal local government appropriations process, removing another check on policing for profit.

Prosecutors circumventing the regular judicial oversight process and handling forfeiture cases through settlement agreements, without ever entering a courtroom.

Counties assigning the same prosecutor to a forfeiture case who is prosecuting the related criminal case, increasing the potential for extortion or providing leniency to those who agree to give up assets.

After detailing the probloms, the article ends with a look at potential solutions:
Other states have laws that aim to protect the forfeiture process against abuse.

In Illinois, prosecutors can't bring forfeiture proceedings until a suspect is convicted and sentenced. That guards against the possibility, or even the appearance, that a prosecutor is trading leniency for money or other seized property.

Wisconsin, like Indiana, sends some of its seized assets to the common school fund. But instead of letting each prosecutor keep as much money as he or she can justify, state law explains exactly how to distribute it: Half the money goes to the school fund and half to the law enforcement agency, which is permitted to spend it on any expenses associated with the forfeiture process.

But are Indiana lawmakers willing to tighten seizure and forfeiture laws?

Sen. Brent Steele, R-Bedford, chairman of the Senate Corrections, Criminal and Civil Matters Committee, says yes -- and changes may be coming as early as the legislative session that starts in January.

"We need to have people testify and get professional opinions," Steele said, "and have an open, serious debate."

Sen. Richard Bray, R-Martinsville, chairman of the Senate Judiciary Committee, agrees it's time for lawmakers to get involved. Among other things, he thinks the formula for calculating law enforcement costs should be set by the legislature, not left up to each individual prosecutor.

Steele met this summer with Senate President Pro Tempore David Long, R-Fort Wayne. It was a meeting prompted by the Delaware County case -- one of the most egregious recent examples of abuse that has came to light: The prosecutor, McKinney, was contracting out forfeiture cases -- to himself -- and keeping a quarter of the forfeited funds.

"Maybe if the law had been more exact, people wouldn't be getting into trouble over the issue," Steele said. "That's what happens when the law isn't complete and exact, and what we've got is not adequate."

Posted by Marcia Oddi on November 7, 2010 01:07 PM
Posted to Indiana Courts