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Profit incentives have long cast a shadow over many corners of the U.S. criminal justice system.<\/p>\n
Think Ferguson, Mo., which famously \u201cset maximizing revenue<\/a> as the priority for \u2026 law enforcement activity.\u201d Or York County, Pa., where one judge accused police officers of going on a \u201cshopping spree<\/a> for the benefit of their budget\u201d inside people\u2019s homes. Or Brookside, Ala., where runaway fines<\/a> and forfeitures made national news in January and led to its police chief\u2019s swift resignation.<\/p>\n Examples abound. But a recent class action lawsuit<\/a> 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.<\/p>\n 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\u2019t have to charge anyone with a crime (much less convict) before taking and permanently keeping property. They don\u2019t have to prove their cases beyond a reasonable doubt. Law enforcement agencies get a cut of the proceeds\u2014a powerful incentive to seize more property. The list goes on.<\/p>\n Indiana, however, boasts one of the most distinctive\u2014and squalid\u2014features 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 <\/em>financial stake in the cases they handle.<\/p>\n 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.<\/p>\n Across Indiana, prosecutors file hundreds of these for-profit forfeiture cases each year. And the system is notorious; one treatise<\/a> describes it as an \u201cinstitutionalized bounty hunter system.\u201d As early as 1990, officials attributed Indiana\u2019s spike in forfeitures to the efforts of the state\u2019s leading contingency-fee prosecutor. Others have described Indiana forfeiture gigs as \u201cgravy jobs\u201d that \u201cgo to people who have connections.\u201d<\/p>\n By all appearances, that remains true today. Until recently, for instance, the state\u2019s most prolific contingency-fee prosecutor was celebrated lawyer and radio host Greg Garrison. Today, one of Indianapolis\u2019s largest law firms works as a contingency-fee prosecutor in rural Vigo County. Overall, more than 35 of Indiana\u2019s 92 counties outsource their forfeiture cases to private-sector lawyers.<\/p>\n Civil forfeiture, in short, is big business in Indiana.<\/p>\n 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\u2014and unconstitutional\u2014concept.<\/p>\n 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<\/a>, prosecutors have a \u201cdistinctive role\u201d and \u201cunique responsibility\u201d to steward the public trust and to do justice.<\/p>\n Put simply, a system that gives prosecutors a personal financial stake in winning casts a shadow over every case they file.<\/p>\n Indiana\u2019s forfeiture policy breaks with these principles at the bedrock level. A system of for-profit prosecution splits the prosecutor\u2019s 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 \u201chis private interest in his continued pursuit of forfeiture property.\u201d<\/p>\n 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.<\/p>\n Forfeiture abuses have kept Indiana in the national spotlight for years\u2014most notably with a 2019 U.S. Supreme Court decision<\/a> holding that the state could not defy the Constitution\u2019s 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\u2019s system of contingency fee prosecutors.<\/p>\n As the Supreme Court said decades ago, \u201cJustice must satisfy the appearance of justice.\u201d Allowing forfeiture prosecution on a contingency fee basis misses that mark by a mile. It\u2019s past time to make for-profit prosecutors a thing of the past.<\/p>\n 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.<\/em><\/p>\n Write for Us: Author Guidelines<\/em><\/a><\/p>\n Sam Gedge<\/em><\/a> is an attorney and <\/em>Daryl James<\/em><\/a> is a writer at the Institute for Justice in Arlington, Va.<\/em><\/p>\n<\/div>\nIndiana Law Unlike Those in Other States<\/h2>\n
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