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Tuesday, January 17, 2017

Ind. Law - "Could Indiana pass forfeiture reform this year?"

Could Indiana pass forfeiture reform this year? Ohio did earlier this month - see this Jan. 5th ILB post headed "Ohio Gov. Kasich signs bill limiting use of civil forfeiture."

Today Fatima Hussein of the Indianapolis Star reports:

At least eight Republican state lawmakers and a Democrat are making a concerted effort to upend the way citizens' personal property is seized by the government.

If they succeed, Indiana will join the ranks of a growing number of states that have reined in the widely used law enforcement practice of confiscating cars, money and other personal assets of criminal suspects, some of which may not be the fruits of a crime.

State lawmakers have submitted eight bills this legislative session dedicated to reforming the state's controversial civil forfeiture law, which is used to raise millions of dollars each year for local law enforcement agencies around the state.

Law enforcement officials consider civil forfeiture an important tool in fighting illegal drugs, but critics say it leads to "policing for profits" and abuses of private property rights.

Some of the bills would allow for the seizure of property only after a criminal is convicted of a crime. Other bills would restrict the way proceeds from civil forfeitures could be used. One calls for a study on the best practices for reforming forfeiture laws, and another calls for a change in the way criminal organizations' property is seized.

"I don’t know why no one has done this here before," said state Sen. Phil Boots, R-Crawfordsville, co-sponsor on one of the bills.

But civil asset forfeiture has long been a topic, both nationally and in Indiana. See, for example, this long Feb. 22, 2015 ILB post that begins:
Although much has been reported nationally (the Washington Post has made it a major focus) and in the ILB on the topic of civil asset forfeiture (here is a long, long list of ILB posts), and the issue was raised briefly in Indianapolis a few years back (in 2011 Heather Gillers had stories in the Star on the question of why these forfeitures were not going to the Common School Fund, as mandated in the Indiana Constitution), the practice and alleged abuses have continued.
Nationally, there is the memorable "Last Week Tonight with John Oliver" video from Oct. 5, 2014 that does a great job of explaining civil asset forfeiture.

Reporter Hussein's long story details some of this year's Indiana proposals:

This year Boots and fellow Republican Michael Young proposed Senate Bill 8, which would repeal a current provision permitting the state to turn over seized property to the federal government.

While the proposal would be effective this July, the extent of any state revenue reduction is unknown, according to the bill's fiscal impact statement.

Specifically, the bill requires that at least $15,000 in cash be involved before a civil asset-forfeiture process may be triggered, and it requires in most cases that a criminal conviction first be obtained or at least a criminal charge filed.

Sen. Lonnie Randolph, D-East Chicago, proposed Senate Bill 26, which would require authorities to notify property owners of the government's intent to seize property. Randolph's bill also requires a prosecuting attorney "to show by clear and convincing evidence that the owner of the property was convicted of and entered a plea of guilty or no contest to the offense that gave rise to the forfeiture," according to the text of the law.

Senate Bill 113, submitted by Sen. Dennis Kruse, R-Auburn, also would require a criminal conviction, would establish a procedure for criminal forfeiture and require that certain information concerning forfeitures be annually reported to the legislative council.

And Senate Bill 41, authored by Sen. Ronald Grooms, R-Jeffersonville, addresses the use of forfeiture proceeds in a rather complicated mathematical equation.

The bill provides that, in a forfeiture proceeding, one-third of the proceeds be given to the prosecuting attorney, "unless the prosecuting attorney has declined a request from the state police department to transfer the forfeiture to federal jurisdiction, in which case 20 percent of the proceeds but not more than $5,000 may be transferred to the prosecuting attorney."

The bill also provides that "of the remaining proceeds, 15 percent shall be provided to the common school fund and 85 percent shall be distributed to an account for distribution to law enforcement agencies participating in the seizure as necessary law enforcement expenses."

A bill that addresses Curry's request for a study committee was introduced on New Years Eve by state Rep. Timothy Wesco, R-Osceola.

Wesco's House Bill 1123 assigns a study committee on the topic of civil forfeiture laws. "One of the greatest obstacles is the revenue local communities receive from forfeiture proceeds, and there's concern about how to replace that revenue," he said. The purpose of the study would be to determine where to find replacement funds.

"My desire is for greater reform, but I take a pragmatic approach."

The study committee, which could cost upwards of $16,000 according to its fiscal impact statement, would be required to issue a final report with recommendations to the legislature no later than November this year.

Jeff Cardella, an Indianapolis criminal law attorney and professor at Indiana University's Robert H. McKinney School of Law, asks whether it's worth taking a summer to think it over.

Cardella recently filed a class-action lawsuit in federal court against Marion County's prosecutor, Indianapolis' mayor and the chief of police for civil forfeiture practices that he says violate criminal defendants' constitutional right to due process.

"I am glad that the Indiana legislature agrees that what is occurring is a constitutional violation and is drafting legislation to prevent this from occurring in the future," Cardella said.

The long story today concludes:
Part of the impetus for the legislation may be a growing number of challenges to the statutes.

Suits in Marion County have challenged both the manner in which property is seized and how the proceeds are spent.

Sam Gedge, an attorney at the Institute for Justice, a libertarian nonprofit based in Arlington, Va., filed a lawsuit last February in Marion Superior Court charging IMPD and prosecutors with violating the Indiana Constitution by not forwarding all civil forfeiture proceeds to the state’s common school fund.

Instead, the county is keeping 100 percent of the money in a “policing for profit” scheme, the institute said.

The Marion County prosecutor’s office and IMPD divvy up all the money received from civil forfeitures based on a 30/70 split, according to the lawsuit.

Whatever the cause, more legislators are pushing for reforms. The bill introduced by Boots and Young was heard by the Committee on Corrections and Criminal Law, last week.

The ILB has been following "civil forfeiture" since 2004. Here is a long list of posts.

Posted by Marcia Oddi on January 17, 2017 10:11 AM
Posted to Indiana Courts | Indiana Government | Indiana Law