Civil forfeiture reform advances, but concerns remain

February 7, 2018

The Indiana Senate has approved a bill that would reform many aspects of Indiana’s civil forfeiture framework, a move local attorneys who practice such cases say is a step in the right direction. However, concerns remain about whether the legislation provides criminal defendants sufficient due process.

bray-rodrick-mug-lg.jpg Bray

The goal of Senate Bill 99 was to increase due process in civil forfeiture actions, Sen. Rod Bray, R-Martinsville, told members of the Senate Judiciary Committee during a January hearing on the bill. Bray chaired the Interim Study Committee on Courts and the Judiciary that adopted the draft version of civil forfeiture legislation that became SB 99.

Though civil forfeiture reform has been a topic of discussion throughout Indiana’s judiciary since at least 2016 — when the Institute for Justice filed a lawsuit challenging Marion County’s forfeiture procedure — Indianapolis forfeiture attorney Todd Ess said this year’s legislative push for additional due process protections came from another source of judicial pressure.

Protecting property owners

An August ruling in Leroy Washington v. Marion County Prosecutor, et al., 1:16-cv-02980 struck down parts of Indiana’s civil forfeiture framework as unconstitutional. Chief Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana cited the lack of a “post-seizure, pre-forfeiture hearing” for defendants, an absence she said violated Fifth and 14th Amendment due process protections.

Washington obviously made it something that needed to be addressed sooner rather than later,” said Jeff Cardella, the attorney who successfully argued the Washington case.

cardella-jeff-mug Cardella

Though the study committee already was reviewing possible forfeiture reforms before the Washington ruling, Bray told lawmakers many of the provisions included in SB 99 were fashioned in response to the chief judge’s concerns.

The most direct response to the Magnus-Stinson’s decision was the creation of a requirement for prosecutors to file a probable cause affidavit in the county where a seizure occurred within seven days of the seizure. If a trial court judge cannot find probable cause to support the seizure, then the property must be returned to the owner of record.

SB 99 also builds in protections for so-called “innocent owners” — people who lend their property to friends or family without the knowledge that the property will be used for illegal conduct. Bray’s bill allows those owners to petition a court for provisional release of their property, provided they can establish they did not know of the intended illegal conduct. If the court grants a provisional release, it can do so with restrictions on when, where or how much the property may be used.

Lingering due process questions

Much of the focus on civil forfeiture reform has been on ensuring property owners are not unfairly deprived of their vehicles, a deprivation that could prohibit someone from maintaining regular employment. Ess acknowledged SB 99 addresses the importance of properly seizing a person’s vehicle but said there are other provisions missing from the legislation that could lead an offender into additional legal trouble.

Specifically, Ess said the bill does not require a forfeiture action be filed in the same court as the defendant’s criminal action. That inconsistency could lead to a situation where a defendant is found to be in default in a forfeiture action because they were not aware the action was pending in a different court.

ess-todd-mug Ess

Similarly, Cardella said SB 99 does not provide criminal defendants the ability to challenge a forfeiture in any court. If that ability is not codified, then Cardella said federal rulings like the Washington decision will continue to come down.

In general, federal civil forfeiture proceedings provide better protections for defendants than they would receive in an Indiana trial court, Ess said. For example, federal forfeiture and criminal proceedings are heard in the same court and the same jury.

In Indiana, however, forfeiture jury trials would not be available under SB 99. But the right to a jury trial in a civil in rem forfeiture action was found to exist at common law in the case of United States v. One 1976 Mercedes Benz 280S, 618 F.2d 453 (7th Cir. 1980), Ess said, so property owners proceeding in either federal or state court should enjoy the rights established by that case.

“Why should Hoosiers be denied a right they already possess under the Seventh Amendment?” he said.

Practical, constitutional concerns
forfeiture-factbox.gif Though the Washington decision was the impetus for SB 99’s additional due process protections, the Institute for Justice’s Marion County case, Jeana M. Horner, et al., v. Terry R. Curry, Marion County Prosecutor’s Office, et al., 49D06-1602-PL-004804, could decide an ongoing constitutional debate.

Pursuant to Article 8, Section 2 of the Indiana Constitution, all proceeds from a civil forfeiture action must be deposited into the Common School Fund. SB 99, however, provides for a disbursement mechanism that begins with attorney fees and trickles down through prosecutors and law enforcement before remaining funds go to the Common School Fund.

While Bray told lawmakers the bill’s disbursement mechanism would put more money into the fund than the current procedure, IJ attorney Sam Gedge argued in the Marion County case and before the Judiciary Committee that diverting any funds to prosecutors and law enforcement was unconstitutional. Further, SB 99’s disbursement procedure could create a conflict of interest if law enforcement officers know they could garner additional funds from a disbursement action.

Cardella agreed the need for additional funds should never motivate forfeiture actions, but also acknowledged law enforcement officials often put forfeiture funds to good use. Delaware County Prosecutor Jeff Arnold made a similar argument to the Judiciary Committee, telling the senators his county once used proceeds from a forfeiture action to pay overtime to police agencies involved in the action.

Bray acknowledged the unresolved constitutional question and promised to continue studying the issue until the courts provide judicial guidance. The Horner case is scheduled for a summary judgment hearing March 16.

The path forward

As Horner continues to play out, most parties agree that aside from its perceived shortcomings, SB 99 is a step in the right direction toward improving Indiana’s civil forfeiture procedures. Cardella called the bill a major improvement, despite his lingering concerns over the rights of criminal defendants.

The Indiana legal community is backing SB 99, with Arnold and Marion County Prosecutor Terry Curry voicing support for the legislation on behalf of the Indiana Prosecuting Attorneys Council. The Indiana Public Defender Council also expressed support for civil forfeiture reform, though it did identify a few changes it would make regarding probable cause hearings and reporting requirements.

Bray’s bill also has legislative support, receiving unanimous votes without amendment in both the Judiciary Committee and the full Senate. The House of Representatives could amend the bill, but the attorneys agree that whatever version of the bill is passed — as is expected — additional due process protections will put Indiana more in line with nationwide civil forfeiture best practices.

“I think we’re starting to catch up,” Ess said.•



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