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Draft civil forfeiture reform bill gets committee endorsement, but with opposition

October 6, 2017

A preliminary draft of proposed legislation that would revamp Indiana’s civil forfeiture law has been endorsed by members of a summer study committee, but not without concerns raised by lawmakers.

After initially reviewing Preliminary Draft 3187, a proposed bill addressing civil forfeiture laws, at its Sept. 21 meeting, the Interim Committee on Courts and the Judiciary endorsed the draft at its final meeting Thursday as a starting point in the discussion about civil forfeiture reform during the upcoming legislative session. The draft incorporates recommendations from county prosecutors and directives from a ruling by U.S. District Court for the Southern District of Indiana Chief Judge Jane Magnus-Stinson, who struck down part of the state’s current civil forfeiture framework as unconstitutional in August in the case of Leroy Washington v. Marion County Prosecutor, et al., 1:16-cv-02980.

Among the provisions in the preliminary draft https://www.theindianalawyer.com/articles/44990-new-limits-proposed-for-civil-forfeiture  is a requirement for prosecutors to file a probable cause affidavit within seven days of seizing someone’s property. The proposed legislation would also require prosecutors to file a forfeiture complaint within 21 days of receiving a demand for return from the owner, or within 90 days if no demand is made.

The draft legislation also includes protection for “innocent owners,” or people who lend their property to friends or families members without knowing the property will be used for illegal activity. Such innocent owners would have the ability under the legislation to file a verified petition for provisional release while the forfeiture action is pending, provided they can prove they “had no reason to believe that the vehicle or real property would be used for illegal activity.”

One of the biggest changes to Indiana’s civil forfeiture framework would be made to the disbursement of forfeiture proceeds to law enforcement or prosecutors, who currently must determine the amount of costs incurred during a forfeiture and seek reimbursement for that specific amount. But under the proposed legislation, once fees are paid to outside counsel, one-third of the remaining amount of proceeds would automatically be deposited into a prosecutor’s forfeiture fund.

From there, 85 percent of the remaining proceeds could be disbursed in one of two ways. If the property was used in furtherance of an act of terrorism, then 85 percent of the remaining amount would be deposited into a law enforcement general fund. Otherwise, that 85 percent would be put into either the state’s general fund, a law enforcement general fund or a county law enforcement fund “established for the support of the drug task force.”

Any remaining funds would then be deposited in the common school fund, the location where, under Article 8, Section 2 of the Indiana Constitution, all civil forfeiture proceeds must go. That constitutional mandate raised concerns for Rep. John Bartlett, D-Indianapolis, who said he didn’t understand how the General Assembly could “get around the constitution” and pass legislation that did not place all proceeds in the common school fund.

Sen. Rod Bray, a Martinsville Republican and attorney who chairs the committee, noted there are differing opinions on that question, but said diverting at least some of the funds to law enforcement and prosecutors is common practice throughout the state. He also noted that under the percentage disbursement system, the common school fund would receive more money each year than under the current system that requires prosecutors to estimate their costs.

Sen. Greg Taylor, D-Indianapolis, also raised concerns about the disbursement mechanism, telling the committee he was concerned that prosecutors and law enforcement could begin “double dipping” in public money. He pointed out that law enforcement agencies are given a budget each year, yet could also receive additional funds through the civil forfeiture disbursement provisions.

Similarly, Taylor raised concerns about the disbursement mechanism being expanded to offer additional funds to prosecutors or even public defenders.

Taylor asked committee members, “So where do we stop the ball from rolling?”

Sen. Lonnie Randolph, D-East Chicago, also pointed out his perceived flaws in the draft legislation, noting that there is no provision to ensure the proportionality of a seizure. As an example, he suggested that there needs to be a mechanism to ensure a person who is found with a single marijuana cigarette in their vehicle does not lose their vehicle, as that would not be a seizure of equal value.

To address these concerns, the committee adopted language into its report that noted the draft bill was open to amendment and discussion during the legislative process this spring. But Taylor raised concerns about that method of compromise, telling his fellow committee members that he had been burned by a similar promise during previous legislative sessions.

The committee ultimately chose to endorse the legislation through a voice vote, though there was some opposition. Taylor, who discernibly voted against endorsing the draft, asked Bray to call for a roll call vote for each committee member. But Bray declined that request, telling the committee he was certain they had reached the required minimum support from nine members in order to approve the draft.

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