Tuesday, June 9, 2020

Indianapolis Council Needs to Look at Jail Commissary Fund and Address Civil Forfeiture Reform

I hate the phrase "defunding the police."  That slogan sounds like an effort to completely eliminate law enforcement.   While I doubt more than a handful of advocates of "defunding the police" actually want police departments eliminated and replaced by anarchy, words in political discourse have consequences.  Using the phrase "defunding the police" plays into the hands of those who oppose law enforcement reform.  And we need law enforcement reform.

During a recent interview with Channel 13, Indianapolis City-County Councilor Zach Adamson discussed what "defunding the police" might mean locally.  Adamson said there would be a thorough review of the law enforcement resources in August during the annual budget process.  Adamson says
Indianapolis City-County Council
Vice President Zach Adamson
there might be better to allocate some law enforcement resources to addiction services, mental health issues and youth programs. 

Zach, I think I know where you can get that money.

Years ago, I wrote several pieces on my blog about local law enforcement abuses, programs that took advantage of citizens and provided perverse incentives for law enforcement.  Unfortunately, I could not get the Indianapolis Council, outside of one council member, to take an interest.  Republicans maybe did not care because they were pro-law enforcement and Democrats probably were not interested because it meant taking on a Democratic sheriff and prosecutor.  So, in light of the new push for reform, let me refresh readers about the issues I addressed years ago.

One area the council needs to take a look at is the jail commissary fund, i.e. the money the Sheriff's Department receives from selling stuff to inmates.  Although Indiana law limited what commissary money could be spent for, those limitations were repeatedly ignored by then Marion County Sheriff Frank Anderson who spent it on items not allowed under the statute, e.g. legal fees, public relations fees, employee awards, law books for the prosecutors, and, my favorite, "ammunition."  While I believe subsequent Sheriffs have probably done a better job of complying with the law, without meaningful oversight of this fund there is a tendency of the Sheriff's Department to treat it as a slush fund.  Here are some of the things I at the time wrote about the commissary fund.

Friday, September 14, 2012, Commissary Payments to Former Sheriffs and Sheriff's Law Firm Violate Indiana Law

Thursday, October 22, 2009,The Jail Commissary Fund, Part I: Marion County Sheriff Frank Anderson Violates Indiana Law to Pay Private Law Firm

Monday, October 26, 2009, The Jail Commissary Fund, Part II: Marion County Sheriff Frank Anderson Violates Indiana Law to Pay Accounting and PR Firm Out of Jail Commissary Fund

Wednesday, October 28, 2009, The Jail Commissary Fund, Part III: Need Money to Buy Plaques or Attend a Fundraiser? Just Dip Into the Jail Commissary Fund

Then you have the issue of money from the telephone contract.  Inmates incarcerated in the Marion County jails who want to contact their loved ones, have to pay a hefty per minute phone rate.  I wrote about it in 2012:
During his tenure, I heard a lot of complaints with how Marion County Sheriff Frank Anderson provided oversight (or failed to do so) over Jail #2, the facility on Washington Street run by Corrections Corporation of America.  One of those complaints involved his signing a contract with a private company to provide high-priced phone service for inmates detained at that facility.  In exchange for a huge payment into the commissary fund, money that Sheriff Anderson then used for any purpose he wanted often in direct violation of an Indiana statute limiting a sheriff's use of commissary money (see four stories [above]), a private company received a lucrative contract worth millions to charge inmates for overpriced local phone calls. Of course, that money didn't appear out of thin air.  It represents money that jail inmates, who often couldn't even afford bail pending trial, had to pay to keep in touch with loved ones or to contact legal counsel.
Due to changes made by the Federal Communications Commission detailed in the article I linked, these private telephone contracts making money for the Sheriff's Department commissary fund may be a thing of the past.  The Council though should at the very least make inquiries about where the money made off of inmates' phone calls in 2020 is going to.  Someone is making money.

Finally, you have the issue of civil forfeiture.  In Indiana, law enforcement officials can can seize your private property (bank accounts, computers, vehicles, phones, etc.) by simply alleging that property was used or received in conjunction with a crime. Criminal charges need not be actually filed, and quite often are not. While your property is out of your possession, the prosecutor's office files a civil action to cause permanent forfeiture of your property.  Because it is a civil action and not criminal, the legal protections afforded to criminal defendants are not present.  A person who loses his or her property is forced to spend money on a private attorney to try to get the property back.  Further, the standard of proof for the civil forfeiture lawsuit is only a preponderance of the evidence, not the beyond a reasonable doubt standard required for criminal conviction..  

While Republican Marion County Prosecutor Carl Brizzi was aggressive in using civil forfeiture, under his tenure the program was mostly limited to drug offense allegations.  But under Democratic Prosecutor Terry Curry, the civil forfeiture program was vastly expanded to all crimes for which civil forfeiture is allowed.  To emphasize again, those do not have to be charged criminal offenses.  The criminal offenses only have to be alleged as part of the civil forfeiture lawsuit.  Most people facing civil forfeiture choose to simply walk away from their property.  Needless to say, this program hits poor people and minorities particularly hard.

Indiana law says law enforcement is only entitled to receive those civil forfeiture funds which cover the cost of the particular enforcement action that resulted in the civil forfeiture lawsuit.  The excess is to go to the Common School Fund.  The obvious reason is that the legislature wanted to make sure that law enforcement officials were not incentivized to go after alleged lawbreakers to simply make money for the department. 

Here is the kicker though...Marion County/Indianapolis law enforcement agencies have been keeping 100% of the civil forfeiture proceeds for years.  They are so brazen about it, they even have a formula for how the money is to be divvied up between the various agencies.   That formula, by the way, involves 0% going to the Common School Fund.  Law enforcement gets 100%.

I'm not sure whether the Indianapolis City-County Council can put a stop to civil forfeiture by passing an ordinance.  If so, that should be done.  If not, the Council needs to at least take control of civil forfeiture funds and decide how that money is to be spent instead of leaving the expenditure of those funds to the various law enforcement agencies.  

As a caveat, some of my knowledge in this post may be a bit dated.  It's been a few years since I have been beating the law enforcement reform drum.  To be frank, elected officials did not seem to care what happens to people accused of crimes.  Hopefully that has changed.

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