Prosecutors who are in it for profit – gaining actual payments based on how successful they are in pursuing forfeiture cases – have drawn a class action lawsuit by the Institute for Justice against Indiana’s “corrosive” system.
Like other states, Indiana has a system of court proceedings that allow for the “forfeiture” of a citizen’s assets, sometimes cash found in a drug deal or a vehicle used to operate a criminal activity.
But unlike other states, the IJ explains, Indiana gives private lawyers a personal financial stake in those prosecutions.
In fact, those lawyers handle cases on a contingency fee basis, meaning they get part of the proceeds if they succeed.
“Forfeit more, profit more,” is how the IJ explained the system.
The IJ’s case is intended to end that practice.
“Every forfeiture defendant has the right to a prosecutor who is financially disinterested, whose incentive is to do justice, not turn a profit,” said IJ Attorney Sam Gedge. “Prosecutors wield enormous power, and in our justice system, there must be no question that they are exercising that power in the public’s interest—not for personal gain.”
The defendant in the new lawsuit is Joshua N. Taylor, a private attorney with contingency-fee forfeiture contracts in at least 16 counties statewide. IJ said it is asking a federal court to declare Indiana’s system of contingency-fee forfeiture prosecutions unconstitutional.
The action was brought on behalf of a current defendant in one of Taylor’s prosecutions—22-year-old Amya Sparger-Withers—and seeks to certify a class action covering every defendant Taylor may bring civil forfeiture actions against under Indiana’s current scheme.
The IJ reported in just the last three years, private lawyers have pocketed $1.3 million that has come from forfeiture cases, making the state’s operation a big business.
“In fact, financial self-interest has been touted as a feature, not a bug. In 2010, for example, then-Marion County Prosecutor Carl Brizzi justified farming out cases to a private lawyer because ‘he doesn’t get paid unless the state gets paid, so obviously he’s motivated to do the best job he can,’” the IJ reported.
The IJ explained civil forfeiture actions don’t have the same protections for defendants as do criminal cases.
“Police and prosecutors can take your belongings without ever charging you with a crime, much less convicting you of one. Unlike criminal trials, defendants in civil forfeiture cases aren’t entitled to a free lawyer. Often, they even need to prove their own innocence. And for many people caught up in civil-forfeiture cases, it simply doesn’t make economic sense to pay for a defense lawyer since the cost of representation often exceeds the amount seized. At every turn, the deck is stacked against them and in favor of the government,” IJ reported.
“In America, prosecutors cannot have a personal financial stake in the cases they prosecute,” said IJ Law & Liberty Fellow Mike Greenberg. “Indiana’s for-profit prosecutions delegitimize the justice system and distort prosecutorial incentives.”
Forfeiture, and its abuses, is one of the IJ’s agenda points.
“In Los Angeles, IJ brought a class action lawsuit against the FBI over its raid of security deposit boxes. IJ also brought a class action lawsuit against the Drug Enforcement Administration and Transportation Security Administration over searches and seizures at airports. And most recently, IJ launched a class action lawsuit against Harris County’s (Houston) civil forfeiture practices. Thanks in part to IJ’s advocacy, Maine ended civil forfeiture earlier this year, leaving only the state’s criminal forfeiture process,” the organization said.
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