Civil forfeiture: What should happen to assets seized from crimes?
The state and U.S. Supreme Courts have cases threatening a source of money that local governments say is crucial for law enforcement in Indiana.
In the coming months, the state and U.S. Supreme Courts will make decisions threatening a source of money that local governments say is crucial for law enforcement in Indiana.
Civil libertarians and others across the political spectrum see it much differently.
The cases involve money and property taken by the state because it was connected to a crime. "Civil forfeiture," as the practice is known, brought in more than $3.7 million from state law enforcement during the most recent fiscal year, according to the Indiana Prosecuting Attorneys Council.
The year before, the figure was $3.6 million.
The practice is meant to finance law enforcement, deter crime and lower the burden on taxpayers. Without compensation, local governments say, they couldn't afford to bring forfeiture cases, depriving law enforcement of an important tool to fight crime.
But opponents see asset forfeiture as insidious, an incentive for overreach by government and law enforcement sometimes derided as "policing for profit."
--- The state Supreme Court must decide whether language in the state constitution mandates that all forfeiture money should go to the common school fund, not law enforcement or anyone else.
--- The U.S. Supreme Court must decide whether the Eighth Amendment's prohibition against "excessive fines" applies to the states. That could open the door to constitutional challenges against civil forfeitures.
Observers in the courtroom for the U.S. Supreme Court argument believed the justices were inclined to rule in favor of self-described former heroin "junkie" Tyson Timbs of Marion, Indiana.
Timbs had his $42,000 Land Rover seized after pleading guilty to selling $260 of heroin to police two times. He served a year of home detention and probation. The maximum monetary fine for the offense was $10,000.
Almost all of the Bill of Rights applies, or is "incorporated," to the states. The excessive fines clause is an odd exception. Justice Neil Gorsuch came down hard on Indiana solicitor general Thomas Fishers, who was arguing for the state.
Earlier this year, Indiana lawmakers passed legislation addressing some concerns about civil forfeiture. It imposed restrictions but also mandated compensation for local government to cover the cost of forfeiture cases.
Such cases involve the filing of a separate legal action against the property itself. The official name of Timbs' case was "Tyson Timbs and a 2012 Land Rover LR2 v. State of Indiana."
Accelerate Indiana Municipalities, an association of 460 cities and towns, said in a friend of the court brief that the actions are a "complex and often lengthy process." The association argued that the legislature "recognized that forcing municipalities to bear the full cost of civil forfeiture (lawsuits) likely means its death knell in Indiana."
The organization quoted from an article in the American Journal of Criminal Law to stress what it sees as the importance of the practice.
"Drug dealers and fraudsters commit crimes in order to earn money," it said. "For some, the threat of prison time may be a sufficient deterrent, but others may consider the prison time to be worth the risk — a cost of doing business. If they know that the financial gain, the reason why they commit crimes, may be taken away, they might be less eager to commit crimes."
David Powell, executive director of Indiana Prosecuting Attorneys Council, declined to speculate on the impact of potential court decisions. But he defended the concept of forfeiture.
A friend of the court brief from the Indiana Association of School Boards said schools need the money in part for enhancing security.
"Indiana public schools already face tight budgets which historically have not contemplated the expense of school safety personnel and security upgrades in each facility," the association said. "Schools do not have the means to enhance school security without adversely impacting other areas of the budget. School security is of utmost importance and strong community demand exists for improved security measures."
Article 8, Section 2 of the state constitution says the Common School fund receives "...fines assessed for breaches of the penal laws of the State; and from all forfeitures which may accrue..."
Lawyer Sam Gedge of the libertarian Institute for Justice — which also represented Timbs at the U.S. Supreme Court — argued that the Indiana Constitution is clear.
He said it "should be read to mean what it says: 'All forfeitures which may accrue' have to go to the school fund," Gedge said. "All means all. Forfeitures means forfeitures."
Gedge said the state's attempts to parse the constitution's words in its favor should be rejected.
But Justice Mark Massa was skeptical of Gedge's true motivation being something other than funding schools.
"This is really a collateral attack on the whole concept of civil forfeitures, isn't it?" Massa asked Gedge.
Gedge said no, that it was a matter of upholding the state constitution. He said he doubted civil forfeiture would go away as a law enforcement tool if police stop collecting money.
"Most police work, most prosecutions, do not rely on self-financing the way civil forfeiture does," Gedge said. "If, as the government argues, civil forfeiture is an important law enforcement tool, presumably that's incentive enough to use it, regardless of whether the money is going to the common school fund."
The Indiana Supreme Court's decision is expected early next year. The U.S. Supreme Court decision is expected in the middle of next year.