A new federal class action lawsuit from the Institute for Justice (IJ) aims to end a corrosive feature of Indiana’s civil-forfeiture system: the practice of giving private lawyers a personal financial stake in forfeiture prosecutions. Unlike every other state in the nation, Indiana outsources forfeiture prosecutions to private lawyers on a “contingency fee” basis. Forfeit more, profit more.
The main defendant in the new lawsuit is Joshua N. Taylor, a private attorney with contingency-fee forfeiture contracts in at least 16 counties statewide. IJ is asking a federal court to declare Indiana’s system of contingency-fee forfeiture prosecutions unconstitutional. The suit is 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.
“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.”
Indiana’s system makes civil forfeiture big business, with the incentives skewed toward personal benefit, not justice. 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.” In the past three fiscal years, private lawyers have pocketed at least $1.3 million in fees.
Civil forfeiture proceedings lack many of the protections Americans are accustomed to in criminal trials. 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.
“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.”
IJ is the leading defender of civil forfeiture victims, representing people in court, highlighting the many problems with civil forfeiture through strategic research, and advocating for the abolition of civil forfeiture in legislatures. 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.