One of the most powerful law enforcement tools in combating crime is the ability to seize and forfeit property used in crime and resulting illicit profits of such crime. Unfortunately, forfeiture to date has been both underused and mismanaged. Yet another headline regarding our current Prosecutor:Candidate Terry Curry argued for civil forfeiture proceeds to go to the Common School Fund. Prosecutor Terry Curry has argued that the Common School Fund is not entitled to any civil forfeiture proceeds and that law enforcement in Marion County is to continue keeping 100% of those proceeds. Candidate Curry wants to extend the abuses of civil forfeiture to such things as DUI. In other words, you wouldn't even have to be charged with DUI, Prosecutor Curry wants to take your car away in a civil forfeiture proceeding simply based on the allegation you drove your vehicle while intoxicated. Candidate Curry also talks about more transparency and accountability for civil forfeiture actions in his office, including keeping updates of civil forfeiture actions on the prosecutor's website. Has Candidate Curry lived up to this promise? Of course not.
Prosecutor’s Office Missed Deadline on $273K in Seized OmniSource Cash
Marion County Prosecutor
Indianapolis Business Journal, April 28, 2010
By statute, the Prosecutor has the authority to seize and seek forfeiture of property used in specified crimes, as well as property derived from such crimes. The forfeiture action is a civil lawsuit which is separate and distinct from the related criminal prosecution. The most familiar example is the seizure of a vehicle and cash in conjunction with a drug bust. The statute further provides that the forfeiture proceeds will first go to reimburse law enforcement – both police agencies and Prosecutor – for the costs of the particular criminal investigation, with any surplus directed to the State’s Common School Fund.
In a recent article and corresponding editorial, the Indianapolis Star detailed that in spite of the fact that “millions of dollars in cash, vehicles, jewelry, houses and other possessions” are confiscated every year in Indiana, virtually no funds end up in the Common School Fund. In Marion County in 2009, no funds derived from forfeitures were deposited in the Fund.
The failure to generate recovery for the Common School Fund is merely one problem regarding forfeiture actions. Questionable practices related to forfeiture procedure include the lack of public accountability in the process, a pattern of awarding forfeiture work to political cronies under windfall compensation agreements, and failure to fully utilize the full scope of forfeiture provisions.
I will take the following steps to significantly improve use of forfeiture sanctions in Marion County:
● Improve accountability and transparency in forfeiture actions. There is currently no separate public record of each forfeiture action other than the record of the civil court case. We will post on the Prosecutor’s website the filing of each forfeiture action, the periodic status of each action, and the ultimate disposition of each action, including identifying the recipient of the forfeited proceeds. We will also post on the website the terms of the fee agreement if outside counsel is employed for the civil forfeiture.
● Strategic use of forfeiture provisions. We will more frequently undertake coordinated filing of criminal charges and a civil forfeiture, following the federal model of “parallel proceedings.” Under such model, authorities will coordinate the execution of search and arrest warrants, seizure of potential forfeitable property, and immediate investigation for tracing of illicit crime proceeds.
● Increased use of civil discovery to trace assets. Forfeiture has generally been limited to “grab and go,” in that law enforcement has been content to merely seize a vehicle and cash found in conjunction with an arrest. The ability to use discovery techniques in the civil forfeiture action, or just plain investigative tools, should be exploited to trace proceeds of the criminal conduct. Did the defendant acquire real or personal property with the illegal profits? If so, then we should locate such property and relieve the criminal of it.
● Expanded application of forfeiture. The most common use of forfeiture continues to be limited to drug prosecutions. We will expand application for forfeiture more readily to other criminal conduct where it is authorized. The most obvious example would be white collar crime, but would also include driving while intoxicated, child molesting, and criminal gang activity.
Another recent Indianapolis Star headline noted that police and fire budgets might take a hit because of revenue shortfalls in Marion County. Aggressive and imaginative use of forfeiture will not only make a defendant literally “pay for his crime,” but will potentially generate much needed funds for law enforcement and the Common School Fund in these difficult economic times. All that is required is the initiative and imagination to do so.
Thus far, Marion County Prosecutor Terry Curry has shown himself to be no friend of civil liberties. He's also not living up to his campaign promises.