ILNews

Attorney general wants to rewrite civil forfeiture law

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Indiana Attorney General Greg Zoeller is asking legislators to make changes to the state’s civil forfeiture law during the 2011 session. He wants to work with lawmakers to create and pass a bill that establishes a formula on how forfeitures would be distributed and enacts stricter regulations on the use of outside counsel to file civil forfeiture actions on behalf of prosecutors.

The announcement comes days after a lawsuit filed in August in Marion Superior Court was unsealed, which claims prosecutors have violated statute that directs money from civil forfeitures that exceed law enforcement costs to be transferred to the Indiana Common School Fund, which loans schools money for technology and construction projects.

Current law allows police and prosecutors to seize the proceeds of the crime from the offender and file a forfeiture action to use those proceeds to fund law enforcement efforts. Some say the law is too vague and prosecutors have various interpretations for calculating law enforcement costs that may be funded by the forfeiture proceedings.

“Under the current law, prosecutors have a great deal of autonomy to decide how to direct any civil forfeiture funds they recover from drug offenders they sue. There needs to be clarity of intent from the Indiana General Assembly as to whether assets seized and forfeited from criminal defendants should be directed to law enforcement to fund drug interdiction and enforcement efforts, or to the Common School Fund,” Zoeller said in a statement. “The place to have that debate is in the legislative branch which has the ability to change the statute – not in court, through a lawsuit.”

Zoeller is recommending legislators draft a bill that would allocate a specific, consistent percentage of the forfeitures to law enforcement agencies, county prosecutors, and the Common School Fund. He also believes Indiana needs stronger controls governing when prosecutors can hire outside counsel and that there should be limits on the contingency fees that outside counsel can get in civil forfeitures.
 

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  • The Constitution has already deal with what the AG proposes to do.
    Article 8, §2 of the Constitution of Indiana states, in its pertinent part, that:
    The Common School fund shall consist of . . . the fines assessed for breaches of the penal laws of the State; and from all forfeitures which may accrue.

    Article 8, §3 of the Constitution of Indiana states, in its pertinent part, that:
    The principal of the Common School fund shall remain a perpetual fund, which may be increased, but shall never be diminished; and the income thereof shall be inviolably appropriated to the support of Common Schools, and to no other purpose whatever.
    ===
    The Constitution would have to be changed to allow law enforcement to lawfully receive any value of the fine or forfeiture.

    Occasionally there is a legal question with a simple answer. This is one of them.

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