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Indiana forfeiture law called ripe for abuse

– An Indiana law governing how prosecutors can use assets seized from criminals is applied inconsistently across the state and creates an incentive for police to make busts for profit, a newspaper investigation has found.

State statute allows law enforcement agencies to keep a portion of seized funds to cover “law enforcement costs” and give the rest to the common school fund, which helps pays for school construction.

But the Indianapolis Star found that what constitutes law enforcement costs depends on the prosecutor and that many are keeping all of the assets seized and circumventing regular oversight procedures.

“The whole idea is a good one – take profit away from drug dealers,” Clark County Prosecutor Steven Stewart said. “But sometimes one can become more important than the other; money becomes more important than the criminal disposition in a case. And that’s not a good thing.”

Legal experts say Indiana’s forfeiture process is ripe for exploitation.

“It’s a conflict of interest: laws that provide incentive to public officials for seizing property, and then their office is going to reap the benefits from it,” said Craig Futterman, a professor at the University of Chicago Law School.

Some prosecutors say they err on the side of caution in interpreting the law.

Wayne County Prosecutor Michael Shipman calculates the cost of each law enforcement action that results in seizure. He totals the regular and overtime hours that each officer works and factors in every expense – down to the number of 60-cent computer disks used.

“I think that’s a fair and transparent way to do it,” he said. “Could I calculate those costs differently and retain more money? Probably.”

When police seized assets worth about $12,000 recently, Shipman said he was able to justify only a few hundred dollars in law enforcement expenses. He turned over a check for more than $11,000 to the state to be sent to the common school fund.

Other counties have much looser interpretations.

In 2008, Putnam County Prosecutor Tim Bookwalter used forfeiture money to make a $28,000 donation to fund spay/neuter services at the local Humane Society. He argued that stray dogs are a law enforcement problem.

Indianapolis law enforcement officials argue that the phrase “law enforcement costs” simply means the cost of enforcing the law in Marion County and justifies keeping all of the nearly $1.6 million the county received from state forfeiture cases in 2009.

State Sen. Brent Steele, R-Bedford, said lawmakers may look for ways to tighten the statute when they reconvene in January.

Steele, chairman of the Senate Corrections, Criminal and Civil Matters Committee, said he met this summer with Senate President Pro Tempore David Long, R-Fort Wayne, to discuss a Delaware County case in which Prosecutor Mark McKinney was contracting out forfeiture cases – to himself – and keeping a quarter of the forfeited funds.

“That’s what happens when the law isn’t complete and exact, and what we’ve got is not adequate.”