Immoral and Unconstitutional
reprinted with permission of IPR
by John Kerr
Under Indiana’s civil forfeiture statutes, police may seize property on a mere hunch that it is connected to a crime. The owner need never be charged with wrongdoing; instead, the asset itself is deemed “guilty.” Once the government confiscates property and initiates forfeiture proceedings, an innocent, third-party owner who seeks to recover his belongings must go to court and prove that the property in question was not involved in criminal activity—a complex and expensive task beyond the financial means of many innocent victims.
The practice of civil forfeiture dates to the 1600s and British maritime law, and was used in this country after the American Revolution to seize vessels seeking to dodge customs duties, which financed a majority of the federal budget at the time. Lawmakers expanded the application of such laws during Prohibition, but it was in the 1980s at the height of the Drug War that forfeiture statutes proliferated under the guise of ensuring that drug kingpins and other criminal overlords didn’t profit from illegal activity.
Although 43 states allow law enforcement agencies to share in the revenue generated by the sale of forfeited property (an obvious incentive to pursue seizures), Indiana does not. Well, at least in theory. In practice, police and prosecutors in the Indianapolis area routinely pocket a hefty portion of the cash produced through their seizure apparatus. In 2011 and 2012, the Marion County prosecutor’s office retained an average of almost $460,000 a year from the forfeiture pot, while the total amount awarded to law enforcement agencies in the county averaged about $1.5 million annually.
The Alice in Wonderland world of civil forfeiture is hardly limited to hardened criminals. Jeana and Jack Horner can attest to that.
The Horners live in Greenfield, a small town of 21,000 residents about 25 miles east of Indianapolis. In order to help Ms. Horner’s son keep his job as a carpenter on work release, they let him use their two vehicles for work. But when he was arrested on a marijuana charge in August 2013, police seized not only the married couple’s 2008 Jeep Grand Cherokee, which he was driving, but also their 2003 Ford F-150 pickup truck, parked at a friend’s house.
“When I went to try to find my vehicles, nobody knew anything,” Jeana Horner recounted, adding that she never would have allowed her son to borrow the vehicles if she had known he was carrying pot. Ms. Horner became so frustrated in her quest to find the trucks that at one point she asked a police representative if she needed to “file a theft report.” Meantime, her disabled husband was left without transportation and had to rely on friends to take him to appointments. He eventually purchased another car for $2,500. “It’s difficult to be stranded,” she said.
Ms. Horner said she never got any notice from law-enforcement officials about the seizures and learned that her property had been targeted for forfeiture only when the family went to court in Marion County. “That was the first time anybody ever talked to me,” she said. “We couldn’t believe that we could get caught up in all that.”
The charges against her son were eventually dismissed. In April 2014 — nine months after the vehicles were taken — a judge ruled in favor of the Horners. But it took another three weeks for the police to return both the Jeep and the Ford pickup, one of which had been drained of its oil. According to Ms. Horner, there was “no explanation.”
Unlike too many other Hoosier property owners, the Horners could actually fight for their property. Since the cost to hire an attorney is often greater than the value of the seized property, property owners typically are forced to walk away.
Over the past five years, court records suggest that prosecutors in Marion County have initiated more than 2,700 civil-forfeiture actions. The majority of cases were decided through default judgments, meaning the property owners did not contest the action, leaving the state to profit from the seized assets.
An Indianapolis criminal-defense attorney calls all of this "policing for profit." Whatever it is called, it is unconstitutional, immoral and untenable.
This is excerpted from a white paper, "Civil Forfeiture in Indiana," written for the upcoming quarterly Indiana Policy Review. The author is a communications fellow with the Institute for Justice, a nonprofit public-interest law firm.
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