The Government's License To Steal

Indiana's laws prohibiting police departments from enriching themselves via asset forfeiture would be much more effective if they weren't ignored.

In the February issue of Reason, I wrote a feature story on civil asset forfeiture, the process by which law enforcement groups can seize property, usually in drug cases, sometimes without ever charging anyone with a crime. In particular, the article looked at the case of Anthony Smelley, who had $17,500 in cash taken from him during a traffic stop in Putnam County, Indiana. Smelley was never charged with a crime, but it took well over a year and several court proceedings for him to get his money back.

Indiana is one of several states that require civil asset forfeiture proceeds to go to a fund for public schools. Many states passed such laws in the late 1990s after media and public backlashes against civil forfeiture abuse. The states saw the funds as a way to remedy the incentive problems that arise when police and prosecutorial offices benefit directly from the money they seize. In Indiana, the requirement is actually written into the state's constitution.

But there are ways around these requirements. Among them:

• "Adoption": Under federal rules, local police departments can simply call the feds when they're about to close a case in which they think there will be a big forfeiture payoff. The investigation then becomes a federal case, governed by federal law. The feds collect the forfeiture proceeds, then redistribute most of them (as much as 80 percent) back to the local police department in question. The school fund gets nothing, and the perverse incentives remain in place. In 1999, The Kansas City Star wrote a series of reports detailing how local police departments in Missouri were using adoption to get around school-funding requirements.
• Settlement: If prosecutors can negotiate a settlement with the defendant, perhaps by letting him keep some of his allegedly ill-gotten gains, the settlement isn't considered a formal forfeiture, and as such isn't governed by third-party funding laws. That money, too, can then go back to law enforcement.
• Contracting: In reporting my story last February, I found that many counties in Indiana are contracting out their civil forfeiture cases to private attorneys, who then get to keep a hefty commission (from 25 percent on up) of what they're able to extract from defendants. If forfeiture money going back to general operating funds for police or D.A. offices creates incentive problems, these private attorneys are choosing and helping prosecute cases in which they stand to be personally enriched by the outcome.
• Operating costs: Counties are also allowed to deduct the costs police departments and prosecutors spend investigating and prosecuting a case from the forfeiture winnings before sending the remainder back to the school fund. The problem is that judges give little apparent scrutiny to the cost estimates, allowing law enforcement to highball their numbers and reap more gain from forfeitures.

Given all of these ways around the law, how much forfeiture money is actually getting back to the school fund in Indiana?

Almost none. This weekend, the Indianapolis Star ran a front-page article looking at where all the forfeiture money is going. I'd like to link to it, but in an apparent effort to keep the paper as irrelevant as possible, the Star has lately adopted a policy of not putting its most important pieces online. But as it turns out, Indiana attorney Paul Ogden actually beat the paper to the story by several weeks. Last month, Ogden put up a post on his blog that came to many of the same conclusions the Star published this weekend. Here's what Ogden found:

• Of Indiana's 92 counties, just five have paid any forfeiture money into the school fund over the last two years. Three of those made just one payment. One county made a single payment of $84.50. Only one county could arguably be seen as complying with the law: Wayne County made 18 payments totalling $38,835.56.
• The total amount of forfeiture money paid into the account from all 92 Indiana counties over the two-year period was just $95,509.72.
• To put that figure into perspective, Ogden notes that attorney Christopher Gambill—the private attorney who, as I noted in my article, handles civil forfeiture cases for three Indiana counties and argued the case for Putnam County to keep Anthony Smelley's money—made $113,145.67 in contingency fees off just a single forfeiture case.

Forfeiture experts Steven Kessler and David Smith told me that the contracting out of these to private attorneys is unquestionably unconstitutional. You have unelected people making public policy decisions who will reap a direct financial benefit as a result. Mark Rutherford, chairman of the Indiana Public Defender Commission, told me last year, "It's just sort of accepted here that this is the way things are. There are attorneys who have amassed fortunes off of these cases." As Ogden notes, one of those attorneys is celebrity lawyer and talk show host Greg Garrison, whose law firm handles forfeiture cases for Marion County, home of Indianapolis. Marion County didn't pay a penny of forfeiture proceeds into the school fund.

Ogden writes:

It is not entirely clear where all the money is going or where the breakdown in the system is that has left only a trickle of money going into the common school fund. Possibly it could be that prosecutors or their hired private counsel aren't closely analyzing law enforcement costs and are simply assuming that on every forfeiture case law enforcement costs and attorney's fees consume the entire amount of the proceeds seized.

Or perhaps judges aren't properly making the determination as to how much the law enforcement costs.

Ogden's being charitable. It's apparent that prosecutors and judges in Indiana know they're gaming the system. For example, in a follow-up to my Reason piece, Gambill told me that he was suspicious of the motives of Putnam County Circuit Court Judge Matthew Headley in Anthony Smelley's case because Headley had once asked for $5,000 from the county forfeiture fund to purchase new audio-visual equipment for his courtroom (he was turned down). Headley conceded to me that he had asked for the money, but denied that getting turned down affected the way he presided over forfeiture cases. But whether or not Headley is biased glosses over the larger point: In a state where all proceeds from forfeiture cases are supposed to go to a school fund, why would Judge Headley (himself a former prosecutor) have assumed there would be $5,000 in forfeiture proceeds available to upgrade his courtroom in the first place?

The most obvious answer is that judges and prosecutors, at least in some parts of Indiana, know that there's wholesale disregard for the school fund requirement.

Civil asset forfeiture is an unjust, unfair practice under any circumstance. The idea that the government can take someone's property on the legal fiction that property itself can be guilty of a crime is an invitation to corruption, and provides a way for the government to get its hands on private goods under a lower burden of proof than it needs to actually convict someone (criminal forfeiture, different from civil forfeiture, requires an actual conviction). What's happening in Indiana, where the entire legal system is essentially ignoring the spirit if not the outright letter of state law, only confirms that once you give government license to steal, it's very difficult to wrest it back.

Radley Balko is a senior editor at Reason magazine.