Nuvo's Considine Looks at Civil Forfeiture and the Common School Fund

The new news editor of Nuvo, Austin Considine, takes a look at civil forfeiture on his blog. Considine goes into a lot more detail regarding how the Common School Fund works. Here's the first part of the blog post:

Ever wonder where the money goes when a gambling ring gets busted? When a car is seized by police and auctioned?

Last weekend, The Indianapolis Star reported that as much as several million in cash from police seizures has not been making its way to the state Common School Fund, as is required by state law.

But I've been doing my own investigating on this story for several weeks now, and what I've found doesn't paint quite as clear a picture. There are reasons I didn't yet run a print story.

That's because millions of dollars each year are, in fact, making it from county courts to the Common School Fund, and some of it may be from seized assets.

What's unclear is how much of those millions come from civil forfeiture cases — in which seized property is forfeited to counties by way of civil court settlement. This is what The Star and some city advocates say is missing. The Star could be right (and is probably at least partly right), but unless it has examined the records at county clerk offices in all 92 counties, there's no way to know for sure.

Having read the article, there's no indication the research went that deep. Research like that would take months, if not longer.
...
Indeed, it is unclear where much of that money from civil forfeitures is going. I confirmed with treasury officials last month that only about
$100,000 in civil seizure revenue has come directly from all 92 counties to the treasurer for the Common School Fund over the last three years — most of it from Wayne and Putnam Counties.

As The Star points out, there's a lot of wiggle room in the state code language — and every reason to believe county law enforcement is interpreting the term "law enforcement costs" as broadly as possible. Even in Wayne County, County Prosecutor Michael Shipman explained to me that "law enforcement costs" included, at the very least, compensation for hours spent busting and prosecuting crimes, at hourly rates consummate with police and prosecutor wages.

[There's a convincing argument to be made that hourly compensation goes above and beyond "costs," since police and prosecutor pay is already budgeted. A cop or prosecutor gets paid from taxpayer revenues regardless of whether the hour spent making a bust turns up nothing, or turns up $100 grand.]

Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council agreed there was a lot of room for interpretation. After Muncie prosecutor Mark McKinney was caught siphoning money from forfeiture settlements in 2008, IPAC took a look at how those settlements were handled around the state.

"After Muncie, we started looking around at how counties handled those funds," Johnson said. "And I was really surprised at the disparity in the way the funds are handled."

...

Little surprise, then, if police and prosecutors weren't forking over what they should for the Common School Fund. No one's really forcing them to.

Considine goes on to take a closer look at Indiana's Common School Fund and how payments into the fund are made. I would take issue with his overly harsh characterization of McKinney's handling of forfeiture cases as "siphoning" off money. I don't think McKinney was handling the cases much differently than other prosecutor offices.

For example, McKinney was criticized in an investigation by the Delaware County Circuit Court for entering into out-of-court settlements not scrutinized by the court. He was also criticized for playing a role in the prosecution and the civil forfeiture. Well, both of those things are going on in other counties in the state. In fact, I think there will be stories come out about civil forfeiture proceedings and misconduct by prosecutors, law enforcement types and others that are going to come to light and which will make McKinney's transgressions look like he knocked over a cup of coffee.

Regarding Considine's characterization regarding Wayne County Prosecutor Michael Shipman's comments regarding law enforcement costs, I don't think it's clear but I believe Shipman was saying that the law enforcement costs deducted from the forfeiture proceeds have to be related to the particular action that resulted in the forfeiture. Given the very commendable approach Shipman which involves an itemization of law enforcement costs which are usually very modest, I"m sure that's what he meant.

The rest of Considine's blog post is worth a read as he calls for an audit of where the civil forfeiture money is going and examines the mysterious Common School Fund in detail.