Friday, May 13, 2011

Governor Mitch Daniels Vetoes Forfeiture Bill That Would Have Provided Windfall to Law Enforcement; Attorney General Greg Zoeller Fibs About How Forfeiture Works in Practice

Indiana Governor Mitch Daniels
Today, it was announced that Governor Mitch Daniels vetoed Senate Bill 215 which would have given prosecutors and law enforcement officials more than 85% of all civil forfeitures.  Governor Daniels veto statement is as follows:
Dear President Pro Tem Long and Members of the Indiana State Senate:

By the authority vested in me as Governor of Indiana, under the provisions of Article 5,
Section 14, of the Constitution of the State of Indiana, I do hereby veto Senate Enrolled
Act 215, enacted during the regular session of the 117th General Assembly, as violative of
the Indiana Constitution, which provides that the proceeds from “all forfeitures” shall go
to the Common School fund.

The Indiana Supreme Court, on April 27, reinforced that point, possibly excepting the
“limited diversion” of the actual expenses of obtaining those proceeds. Fairness to the
General Assembly requires noting that legislators did not have the benefit of the court’s
opinion, which was issued in the session’s final days.

This bill would take more than ninety cents of every dollar collected through forfeiture
for the “expense of collection” rather than sending it to the Common School fund. That
is unwarranted as policy and constitutionally unacceptable in light of the Supreme
Court’s recent guidance and the plain language of Article 8, Section 2 of the Indiana


Attorney General Greg Zoeller
Mitchell E. Daniels, Jr.
Despite being slapped down by the Indiana Supreme Court and the Governor in one week's time, Attorney General Greg Zoeller continued to defend his position that law enforcement gets to keep civil forfeiture proceeds:
“I respect the Governor’s position, and as Attorney General I will continue to work with legislators, prosecutors and judges in an effort to reform the current civil forfeiture system so that there is more clarity over how criminals’ seized assets are apportioned and to more strictly regulate the use of outside counsel. Civil forfeiture is an effective weapon that can be used appropriately and effectively against well-funded drug traffickers who seek to make inroads into our state. It is my hope that another legislative proposal can be developed for the 2012 session that would address the concerns that have been raised. In the meantime, there is currently a judicial determination for every civil forfeiture action a prosecutor files, since a judge always must review it before it is approved, and the veto hasn’t changed that,” Zoeller said.
To characterize Zoeller as being disingenuous is charitable.   Many forfeitures are simply handled through out of court settlements with the only thing that will be in the court file is a stipulation of dismissal.  There is no judicial oversight over those cases.  In most cases, the defendant never responds to the complaint and a default judgment issued.  Then there are cases where they're settled before they're even filed in court, the so-called "roadside forfeitures."

Regardless in virtually no cases do the courts make a determination of law enforcement costs as Zoeller is suggesting.  They simply just rubberstamp whatever is given them. There is only county in the state where judges regularly sign off on a calculation of law enforcement costs is one - Wayne County.  (Disclaimer there are some 20-25 counties that don't do civil forfeiture or rarely do it.)

Only $95, 500 was paid to the common school fund in the last three years, with only five counties paying anything.  (Marion County has paid nothing.)  That is out of tens of millions of dollars.  That means about 99.9% of the funds are "law enforcement costs" according to Zoeller. Does Zoeller really believe the courts are approving that law enforcement keep 99.9% of civil forfeitures as "costs" of the cation.

Maybe it's time for Attorney General Zoeller to do his job and enforce the law with respect to civil forfeitures.


Pete Boggs said...

Congratulations Paul on pursuing this and bringing it to our attention. Thank you.

Paul K. Ogden said...

I appreciate your support, Pete.

Diana Vice said...

Congratulations, Paul! The veto was a result of you raising this issue. I applaud the Governor for his actions.