|Indiana Attorney General |
Under Indiana's civil forfeiture law, law enforcement is only to keep the costs of the action, with the rest going to the common school fund. Instead almost almost all counties doing civil forfeiture have kept all the money, including Marion County which hasn't contributed a dime to the common school fund in years. Only $95,500 in was paid to the common school fund by Indiana's 92 counties during the last three years. A bill currently in conference committe would eliminate the law enforcement cost provision in favor of letting law enforcement keep 85% of the civil forfeiture loot.
Footnote 3 by the unanimous court clearly reveals the unwillingness of the Court to accept the AG's opinion that "all" doesn't actually mean "all."
From the proceeds, the court may except law enforcement expenses incurred ―for the criminal investigation associated with the seizure and a prosecutor‘s expenses associated with the forfeiture proceeding and the expenses related to the criminal prosecution. Ind. Code § 34-6-2-73 (2008). Whether this limited diversion, calculating actual expenses on a case-by-case basis, is consonant with the constitutional command that ―all forfeitures‖ be deposited in the Common School Fund is an unresolved question.At the very least, anything above ACTUAL law enforcement costs is going to be considered unconstitutional. The 85% figure in the bill in conference is far above actual costs and certainly wouldn't pass constitutional muster. Likewise the practice of keeping 100% of the money, i.e. pretending all the money is law enforcement costs, wouldn't find a friendly audience with the Indiana Supreme Court.
In Judge Oakes' opinion dismissing our case, he suggested a better "mule" to ride would be a constitutional challenge. So we recently amended the complaint to change it from a qui tam into a straight constitutional challenge to law enforcement keeping civil forfeiture proceeds as costs. The irony is that Attorney General Greg Zoeller could have worked on a resolution which ensured counties complied with the "law enforcement cost" provision, but instead chose to play hardball and get the 85% provision written into the law. Because of those hardball tactics, Zoeller, IPAC's Steve Johnson and county prosecutors, are well on their way to going from getting 100% of civil forfeiture to getting nothing.