Friday, June 3, 2011

Marion County Prosecutor Terry Curry Omits Facts on Civil Forfeiture, Makes Disingenuous Argument for His Office's Continued Violation of Civil Forfeiture Law

Since, I have written a letter to the editor that the Indianapolis Star will hopefully publish on the subject, I'll keep this brief.

Marion County Prosecutor Terry Curry
This morning, the Indianapolis Star published a letter to the editor from Marion County Prosecutor Terry Curry on the subject of civil forfeiture.  In it he implores that people look at the "facts" regarding the civil forfeiture law.  To label Curry's letter as "disingenuous" is being charitable.   I'm not sure Prosecutor Carl Brizzi, for all his faults, would have penned something as intellectually dishonest as what Prosecutor Curry has done.

Curry says civil forfeiture requires a judicial finding that the property was used in the commission of a crime or derived from a crime.  That happens in maybe 10% of the cases.  In the other 90%, the case is dismissed as a result of an out-of-court settlement or there is a default judgment.   The property owner,faced with the enormous resources of the prosecutor and few of the protections afforded to criminal defendants, generally doesn't have the resources to hire an attorney and fight the forfeiture.

Curry also talks about the excess from civil forfeiture proceeds, above law enforcement cost, going to the Common School Fund.  He fails to mention that his office does not comply with the law and instead pockets 100% of the money.  The Marion County Prosecutor's Office hasn't paid the Common School Fund a dime in years.

Curry disingenuously suggests that the Indiana Supreme Court wasn't saying in the Serrano case that SB 215, which would have allowed law enforcement to keep 90% plus in law enforcement expenses, was unconstitutional.  The Supreme Court went out of its way in Serrano to make clear that the only thing that might be constitutional is a deduction of "actual" law enforcement expenses calculated on a "case-by-case basis," which is clearly not what SB 215 does.  For Curry to say that footnote in Serrano just said it was an "open question" regarding the constitutionality of the existing law is to ignore what the Court actually said in that case.  I would also note that Serrano was handed down while the Indiana General Assembly was considering SB 215.  It was almost certainly a message to the legislature that SB 215, which doesn't calculate "actual" law enforcement expenses on a "case-by-case basis,: would be unconstitutional.

Curry finishes his letter by saying "Gov. Daniels' own Department of Education" supported SB 215.  I am a bit concerned that someone in Curry's position would think that the Indiana Department of Education isunder the Governor, when it is in fact under the Indiana Superintendent of Public Instruction, a separately elected state-wide official.  Superintendent Tony Bennett supports the Governor' decision to veto the bill.

Finally, I thought Democrats believe in civil liberties and supported schools.  Why is the Curry, a Democrat, advocating people's property be seized without even being charged with a crime?  Why is Curry advocating that money be diverted from schools?  Why isn't Curry's office complying with the civil forfeiture law and insisting that law enforcement expenses be calculated on a case-by-case basis with the excess paid to the Common School fund?  Does Marion County Prosecutor Terry Curry believe  he is above complying with the laws he is sworn to enforce?  Apparently so.

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