A lawsuit filed in Indianapolis last month hopes to bring attention to a controversial practice that law enforcement in some states, including Indiana, has been using more and more in recent years: civil forfeiture. The suit, brought by the Institute of Justice (IJ) on behalf of several Indiana plaintiffs, claims that the Indianapolis Metropolitan Police Department (IMPD) and the Marion County Prosecutor’s Office have been violating the state constitution by seizing property from citizens for financial gain.
Civil forfeiture (or civil-asset forfeiture) is a practice that allows law enforcement agencies to seize property when it is believed to be connected to criminal activity, even though an individual person might not be charged. The idea is that when some item of physical property—a car, a house, a suitcase full of cash—is used in the commission of a crime, that property can be seized independently of any criminal proceeding to prevent it from being used for additional crimes.
The way in which the law is applied—the item of property is treated as the defendant in court proceedings—leads to strange cases, such as “United States v. $124,700 in United States Currency” or “State of Texas v. One Gold Crucifix.”
Despite these sometimes-amusing case names, the legal proceedings are very serious, and there has been much discussion in recent years about whether this process is fair to those who have their property seized and whether or not the rules around civil forfeiture lead to abuse and corruption by officials.
Civil forfeiture, which emerged in law during the 1600s to fight smuggling and piracy, has existed in United States law from the beginning of the Republic but, with a few notable exceptions, had seen little use. During Prohibition, for example, it was used to shut down smuggling operations. However, during the “war on drugs” of the 1980s and 1990s, civil forfeiture began to be encouraged in other types of cases, and its use has skyrocketed. State amounts are mostly unreported, but estimates show some federal forfeiture amounts rising more than 4000% since 1986.
When as many as 80% of people affected by civil forfeiture are never charged with a crime, it’s no wonder that some believe the practice is abusive. Typically, local jurisdictions keep at least part of the assets they seize in this way, and many are allowed to keep 100%. Most states also use a low standard of proof to justify civil forfeiture—not “beyond a reasonable doubt” but other criteria, ranging from “clear and convincing evidence” to mere “probable cause.” In most cases, the burden of proof is actually reversed: accused property holders are not innocent until proven guilty but rather have to prove their innocence to recover their property.
Combined, these aspects of the practice have led to accusations that some jurisdictions use civil forfeiture as a way to fund their operations rather than as a way to fight crime. The Indiana suit takes a different approach.
The Indiana state constitution states that “all forfeitures” must be paid into a fund for Indiana schools. Agencies which make the seizures are only entitled to keep an amount that covers the expense of the seizure and any legal action associated with it. The IJ suit contends that no forfeiture money has been paid into the fund for years and that agencies greatly exaggerate their costs in order to keep 100% of the assets they seize, ultimately leading to a violation of the state constitution. The courts will decide whether or not this argument has merit.
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