Fatima Hussein

IndyStar

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 Marion County Prosecutor Terry Curry, a Democrat, is counseling caution.

"We believe it would be most prudent for the legislature to defer any action on this issue and address significant misconceptions regarding forfeiture in a summer study committee," Curry told IndyStar.

Reform movement sweeps across states

Today, all states allow for forfeiture, and there are more than 400 federal forfeiture statutes. Legal opinions written on the matter show an inconsistency as to what is and is not a violation of an individual's property rights.

According to Justice Department data, Indiana State Police seized more than $2.2 million in personal property from Indiana residents in 2014. The Indianapolis Metropolitan Police Department seized roughly $48,022 in personal property that year, according to the data.

In the past two years, more than 12 states, including Florida, New Mexico, Nebraska and Maryland, have passed some form of civil forfeiture reform.

Recently, Ohio Governor John Kasich signed a bill that imposes new restrictions on government’s use of the civil asset-forfeiture process to take the assets of suspects that may or may not be "fruits of a crime."

Jason Snead, a policy analyst with the the Heritage Foundation, a conservative think tank, wrote last August that the pace with which states are adopting these laws "is indicative of the lack of support for the forfeiture status quo."

In Indiana, legislative leaders say they are loath to eliminate a law enforcement tool but also want to protect property rights.

Boots introduced a reform bill last year, but it never made it to the Senate floor for argument. He said enough constituents contacted him about reintroducing the bill in 2017 that he was convinced it was the right thing to do.

It's unclear how far Indiana's Republican-controlled legislature will go this year. Senate President Pro Tem David Long, R-Fort Wayne, didn't close the door on the legislation but sees any reforms as something of a balancing act.

“It’s important for the legislature to support our prosecutors in their war against drug dealers and other criminal activity," he told IndyStar, "but we have to be vigilant in protecting the constitutional rights of all Hoosiers as well."

A forfeiture only if convicted

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."

The study committee proposal

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.

Libertarian lawyer enters fight against Indiana's civil forfeiture law

Lawsuits challenge constitutionality of forfeiture

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.

Indy civil forfeiture lawsuit will proceed

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. "If it makes it through committee, it will make it to the floor," Boots told IndyStar.

From there, who knows?

"There is no guarantee any of these bills will pass," said Long. But if they do, he said, both law enforcement and property rights need to be protected.

Call IndyStar reporter Fatima Hussein at (317) 444-6209. Follow her on Twitter: @fatimathefatima.