Friday, November 19, 2010

Prosecutors Sued for Failing to Pay Money Owed to Common School Fund

Sorry I haven't posted anything the last few days. In tomorrow's Indianapolis Star (a short story was on line today) will be a story about the qui tam lawsuit we filed against 89 of the state's 90 prosecutors four months ago and that was unsealed today. We dismissed 11 county prosecutors who said, in response to open records requests, they had not done any civil forfeiture actions over the past few years.

A qui tam lawsuit basically is a taxpayer lawsuit to recover state money that was wrongly misappropriated or not paid that should have been paid to the state and was not.

Indiana has a civil forfeiture law which says that in a civil forfeiture action, the prosecutor can deduct law enforcement costs including attorney's fees, and the remainder is to be paid to the Common School Fund. In the last 2 years, the 92 counties in Indiana only paid $95,000 into the fund pursuant to the civil forfeiture fund. They kept all the rest of the money. In Marion County, approximately $1.6 million is netted in forfeiture every year (which estimate is probably is low as it doesn't appear to include private attorney, Greg Garrison's, cut), and the county hasn't turned over a dime to the Common School Fund and hasn't for many, many years. Marion County does not even try to figure law enforcement costs...they have a standard percentage that goes to law enforcement agencies and the prosecutor's office (or private attorney) on every case.

Only one prosecutor in the state, Wayne County Prosecutor Michael Shipman, diligently figures law enforcement costs on every case and regularly cuts a check to Common School Fund. On the 13 cases I looked at in Wayne County, law enforcement costs (including attorney's costs) averaged about 25% of the total. Wayne County turned over 75% of the money they collected in those 13 civil forfeiture cases to the Common School Fund.

Doing some complicated math calculations, I estimate that in a two year period, the state's prosecutors could have taken in $22 million plus in civil forfeiture funds. (Even that is a conservative estimate because some cases settle before trial and escape review.) By my calculations, during that two year period the Common School Fund should have received about $16.8 million in forfeiture funds. Instead the school fund received $95,000.

Regardless of how this case comes out, hopefully all the attention on the problems in Indiana's civil forfeiture law will bring some much need changes to that law.


Carlos F. Lam said...

Indiana's civil forfeiture law is pretty weird. I don't particularly like the concept of civil forfeiture as a matter of public policy because of the perverse incentives it creates. Of course, civil forfeiture is merely a symptom of our greater problem: the so-called War on Drugs and the scramble for financial resources that it has created among government agencies.

Unknown said...

Out of curiosity, which counties are not being sued?

Paul K. Ogden said...

Bob, we didn't sue Wayne as they are the only county in the state using civil forfeiture and which is following the law.

Responses to open records requests caused us to dismiss 11 more that said they haven't done civil forfeiture in years:

William Weist (Benton County Prosecutor), Kevin Basey (Blackford County Prosecutor), Jeremy Mull (Clark County Prosecutor), Cheryl Hillenburg (Crawford County Prosecutor), Dennis Byrd (Harrison County Prosecutor), Robert Clamme (Jay County Prosecutor), Gary L. Smith (Jennings County Prosecutor), David Holmes (Marshall County Prosecutor), Kelly Minton (Orange County Prosecutor), David Daly (Randolph County Prosecutor), and Jay Rich (Tipton County Prosecutor).

We will undoubtedly be dismissing some more - not because they gave money to the common school fund as required by law - but because they didn't do civil forfeiture.

Cato said...

You're a real hero, Paul.

Run for Mayor.

Unknown said...

Thank you for the information.

It will be interesting to follow.

Anonymous said...

The recent election for Newton Co. prosecutor pitted a chief deputy against a newcomer. The chief deputy bragged in his campaign literature about the large sums his office had confiscated and distributed to local law enforcement, and he promised more efficient administration of such money.

He lost, but I got the impression it was several hundred thousand dollars, an eye-opening amount for a small rural county without a lot of crime.