Prosecutors Should Not Profit From Forfeitures

Profit incentives have long cast a shadow over many corners of the U.S. criminal justice system.

Think Ferguson, Mo., which famously “set maximizing revenue as the priority for … law enforcement activity.” Or York County, Pa., where one judge accused police officers of going on a “shopping spree for the benefit of their budget” inside people’s homes. Or Brookside, Ala., where runaway fines and forfeitures made national news in January and led to its police chief’s swift resignation.

Examples abound. But a recent class action lawsuit out of Indiana spotlights a distinctively corrosive form of profit-fueled law enforcement: private, for-profit prosecutors in civil forfeiture cases. Our public interest law firm, the Institute for Justice, is litigating the case. But first, a little background.

Civil forfeiture is a law enforcement tool that allows agencies to confiscate cash, cars, and even homes. And nationwide, the scheme suffers from all sorts of procedural problems. Prosecutors don’t have to charge anyone with a crime (much less convict) before taking and permanently keeping property. They don’t have to prove their cases beyond a reasonable doubt. Law enforcement agencies get a cut of the proceeds—a powerful incentive to seize more property. The list goes on.

Indiana, however, boasts one of the most distinctive—and squalid—features of civil forfeiture anywhere in the nation. While many states give law enforcement agencies an institutional stake in forfeiture, Indiana takes things to the next level and gives prosecutors a personal financial stake in the cases they handle.

Indiana Law Unlike Those in Other States

Unlike every other state in the nation, Indiana allows counties to outsource forfeiture cases to private-sector lawyers, who get a cut of whatever they manage to confiscate. The formula is simple: forfeit more, pocket more.

Across Indiana, prosecutors file hundreds of these for-profit forfeiture cases each year. And the system is notorious; one treatise describes it as an “institutionalized bounty hunter system.” As early as 1990, officials attributed Indiana’s spike in forfeitures to the efforts of the state’s leading contingency-fee prosecutor. Others have described Indiana forfeiture gigs as “gravy jobs” that “go to people who have connections.”

By all appearances, that remains true today. Until recently, for instance, the state’s most prolific contingency-fee prosecutor was celebrated lawyer and radio host Greg Garrison. Today, one of Indianapolis’s largest law firms works as a contingency-fee prosecutor in rural Vigo County. Overall, more than 35 of Indiana’s 92 counties outsource their forfeiture cases to private-sector lawyers.

Civil forfeiture, in short, is big business in Indiana.

No other state in the nation prosecutes forfeiture cases in this way. Georgia previously allowed a similar scheme, but Georgia courts condemned the practice in 2012, holding that it violated public policy. Which, of course it did. For-profit prosecutors are a profoundly bad—and unconstitutional—concept.

Prosecutors exercise enormous power. In turn, they are duty-bound to exercise that power in service of the public trust, not in pursuit of personal financial gain. Their job is not to win at all costs or to punish the most people or to seize the most money. Their job is to see that justice is done. As the U.S. Supreme Court has explained, prosecutors have a “distinctive role” and “unique responsibility” to steward the public trust and to do justice.

Put simply, a system that gives prosecutors a personal financial stake in winning casts a shadow over every case they file.

Indiana’s forfeiture policy breaks with these principles at the bedrock level. A system of for-profit prosecution splits the prosecutor’s loyalty between the public trust and personal gain. And that danger is not hypothetical. In 2011, for example, one Indiana county prosecutor was formally disciplined for having abdicated his duties as a public official in service of “his private interest in his continued pursuit of forfeiture property.”

Rather than learn from the experience, Indiana lawmakers doubled down in 2018. With no dissenting votes, the Legislature codified the profit scheme into state law, which now requires explicitly that private forfeiture prosecutors be paid on a contingency fee basis.

Forfeiture abuses have kept Indiana in the national spotlight for years—most notably with a 2019 U.S. Supreme Court decision holding that the state could not defy the Constitution’s Excessive Fines Clause. Our firm litigated that case. Now, forfeiture is back on the docket in Indiana once again. This time, we are asking the federal courts to put a stop to the state’s system of contingency fee prosecutors.

As the Supreme Court said decades ago, “Justice must satisfy the appearance of justice.” Allowing forfeiture prosecution on a contingency fee basis misses that mark by a mile. It’s past time to make for-profit prosecutors a thing of the past.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Sam Gedge is an attorney and Daryl James is a writer at the Institute for Justice in Arlington, Va.