Initially created to take down drug lords, civil asset forfeiture has morphed into an excuse by federal, state, and local law enforcement agencies to confiscate cash and other property regardless of whether a person is charged with a crime. The Indiana Supreme Court recently ruled that the government must prove it is ‘entitled’ to keep the seized property, even if the owner was not charged with a crime. Furthermore, the court also stated in its ruling that government victims have no right to use their seized funds to hire an attorney. Civil asset forfeiture (CAF) is a civil matter, not criminal, which means there is no constitutional right to an attorney.
The plaintiff in the Indiana case, Terry Abbott, initially hired an attorney to represent him, but because the state had seized his savings, he had no means to pay for legal services. Abbott ended up defending himself.
Institute of Justice Attorney Marie Miller argued the case before Indiana’s Supreme Court:
“Anyone who has watched ‘Law & Order’ knows that in criminal court, Americans have a right to an attorney and that if they cannot afford one, the government has to appoint one for them. But because civil forfeiture occurs outside the criminal process, it turns Americans’ understanding of the justice system on its head. Property owners are guilty until proven innocent, and they have no right to an attorney to fight for their rights.”
Why this is especially heinous in the Hoosier state concerns who the prosecutors are in these cases. Unlike every other state, Indiana outsources to private, for-profit lawyers who work on a contingency-fee-basis and receive a cut of any CAF gains. This practice makes CAF even seedier due to the “sharing of the spoils” incentive by predatory attorneys defending the right of the government to steal the property of citizens.
Instead of policing for profit in Indiana, could it be called a case of ‘prosecuting for profit?’
The Institute of Justice (IJ) has filed a federal class action against Indiana’s most prolific contingency-fee prosecutors. This statement sums up the case:
“The claim is as simple as it is important: Under basic due-process principles, prosecutors cannot have a personal financial stake in the cases they prosecute. Such a system delegitimizes the justice system and skews prosecutorial incentives. It’s past time to put an end to for-profit prosecutions.”
In its 3rd Edition of Policing for Profit: The Abuse of Civil Asset Forfeiture, published in 2020, IJ hammered home how corrupting the incentives in the seizure process are and how broken the system is. During the 2000 to 2019 period, state and federal governments grabbed at least $68.8 billion of civil property. Not all states are fully transparent about their CAF activities, so that figure is undoubtedly much higher.
“Policing for Profit” graded the fairness of civil forfeiture laws around the country. Thirty-five states and the federal government received grades of D+ or worse. The study found that forfeiture proceeds are most often used to bolster law enforcement budgets, rarely making it back to victims of crime or community programs.
It should come as no surprise why the NMA considers civil asset forfeiture law reform as a leading agenda item in Washington DC and at the state level. Motorists are particularly vulnerable to seizures at roadway checkpoints and during traffic stops.
