Forfeiture Bill Would Restrict Police, Prosecutors
Marilyn Odendahl for www.theindianalawyer.com
A bill scheduled for a hearing before the Indiana Senate Corrections and Criminal Law Committee Tuesday would require law enforcement to get a conviction before moving ahead with civil forfeiture.
Senate Bill 8, authored by Republican Sens. R. Michael Young of Indianapolis and Philip Boots of Crawfordsville, also would repeal a provision in Indiana Code that permits the state to turn over seized property to the federal government.
The hearing will be at 10 a.m. Jan. 10 in Room 130 of the Statehouse. Young is the committee chair and Democratic Sen. Greg Taylor is the ranking minority member.
The bill would limit forfeiture of property to the state to only those incidents where the owner is convicted of a crime. Indiana’s current forfeiture law, Indiana Code 34-32-1, does not specify the property’s owner must be convicted before the items can be forfeited.
An analysis by the Legislative Services Agency found the revenue from assets that are seized and forfeited could be reduced under the bill, but the agency could not determine the level of reduction. Indiana Prosecuting Attorneys Council reported that $1.8 million was seized and forfeited during fiscal year 2016. The proceeds were distributed between prosecuting attorneys, law enforcement and Indiana’s Common School Fund.
Indiana’s civil forfeitures were the subject of two high-profile court cases last year.
In February 2016, Marion County’s forfeiture procedure was challengedby the Virginia-based Institute for Justice. The organization filed a lawsuit, claiming the Marion County police department and prosecutor’s office were keeping all of the forfeiture monies in a “policing for profit†scheme.
Marion Superior Judge Thomas Carroll denied the defendants’ motion to dismiss in July 2016 and in December granted the plaintiffs’ motion to compel discovery.
Also in September 2016, the Indiana Supreme Court affirmed that the state’s expungement statutes do not extend to civil forfeiture records. The case was D.A. v. State of Indiana, 48S02-1604-MI-183.
The Young-Boots bill would place additional limits on law enforcement’s ability to seize assets.
Currently, officers are allowed to seize the property of anyone who is arrested, searched or stopped as part of an administrative inspection. The bill would require that officers seizing property during an arrest or search must have probable cause to believe that the property is subject to seizure.
In addition, the bill requires the court to find substantial probability that the property is subject to seizure and that the state or municipality would prevail in a forfeiture hearing. Moreover, the court must find substantial probability that the property will be destroyed or made unavailable if it is not seized. Finally the court must also find that the need to seize the property outweighs the hardship to the owner and other parties.
The proposed legislation changes the procedures and criteria for pursuing a civil forfeiture of seized property.
Current law requires that prosecutors show the preponderance of evidence demonstrates that the property was used in the crime while the bill pushes prosecuting attorneys to show by clear and convincing evidence the defendant owns the property and was convicted of the crime.
