The Journal Gazette
Tuesday, August 22, 2017 1:00 am


A civil compromise

Court ruling adds urgency to forfeiture study

Indiana law allows authorities to seize vehicles and other types of property believed to be related to drug crimes and some other types of serious criminal activity. If a property owner challenges the seizure, the county's prosecutor has 90 days to return the property or ask a court to allow it to be sold to help cover the costs of criminal investigation. If not, the prosecutor's office has six months to file that request.

Over the next two months, an interim legislative study committee will look at the possibility of revising that law, focusing on questions of fairness and even whether law enforcement is entitled to the proceeds of such sales under the Indiana Constitution, which appears to direct such money to the Common School Fund. Allen Circuit Court Judge Thomas Felts is a member of the panel.

The timing of the committee's first hearing last week was prescient. Monday, a U.S. District Court ruled portions of the law unconstitutional.

There are similar procedures, called civil forfeiture, in most states and federally. The process has long been attacked by civil liberties advocates, who say the process in effect exacts punishment without requiring authorities to prove guilt. In some cases where property is seized, opponents say, charges are never even filed.

Even if someone is charged, seizing a car or other property may exact what some would say is a kind of punishment long before the defendant's case comes to trial. For instance, the alleged offender or an innocent family member may be prevented from getting to work or school.

Former U.S. Attorney General Eric Holder had ordered the Justice Department to cut back on the practice of civil forfeiture.

But last month, U.S. Attorney General Jeff Sessions announced his intention to have the federal government increase the use of civil forfeiture.

This week's ruling on the Indiana law resulted from a challenge by a man whose car was seized after he was arrested in Indianapolis on charges of dealing marijuana. Due process, U.S. District Court Chief Judge Jane Magnus-Stinson ruled, requires “at a minimum, providing individuals with a timely post-seizure, pre-forfeiture hearing.”

“A vehicle's importance as a means to earn a living and participate in the activities of daily life is particularly pronounced in Indiana, where public transportation options are limited, even in the state's largest cities,” Magnus-Stinson wrote.

The interim committee already had been considering reducing – from 90 to 21 days – the time before a prosecutor has to respond to a property owner's request for a hearing. Interviewed Monday before news of the district court ruling broke, Allen County Prosecutor Karen Richards said speeding up the process seems reasonable to her. Richards noted one concern has been that if a vehicle is held for a long period but is eventually released, the vehicle's owner still faces large impoundment fees.

The ruling adds urgency to the work of the committee, which may need to look at more fundamental restructuring of the process and urge quick action by the legislature. Another key question may be whether the law should allow property to be sold if the investigation that led to its seizure hasn't led to charges or convictions.

With Indiana in the midst of a major drug crisis, law enforcement needs to have the tools to do the job. But it's more crucial than ever that drug-related laws are written and enforced fairly.

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