A news report from television station WSBT in South Bend has brought attention to what could be a change in the way criminal forfeiture laws work in the state of Indiana. The report spotlights a new bipartisan bill introduced and passed by the Indiana Senate which may have far-reaching implications in the state’s criminal code.
Senate Bill 8, first read on the Senate floor January 3, 2017 and passed by a vote of 213 yeas, 40 nays and 10 no-votes on its third reading, passed the Senate on February 28 and was first read in the House on March 6, where it was passed to the Committee on Courts and Criminal Code.
Back to the Founders
Senate Bill 8 has its roots in the Fifth Amendment, a part of the Bill of Rights proposed by James Madison initially in 1789 and passed in 1791, which essentially protects citizens from having “life, liberty or property” taken from them without due process of law, or having private property taken from them without just compensation from the Federal Government. The Fourteenth Amendment, ratified in 1868, offers the same protections, but from state governments.
Current Indiana Law allows for forfeiture of property or goods if someone is stopped, searched or arrested if the property or goods are suspected of being gained or purchased with proceeds from illegal activity. For example, if a drug dealer is arrested and his vehicle is suspected of being purchased from money earned from illegally selling drugs, that property may be seized. However, there are very few safeguards against abuse. The way the law currently stands, due process is not necessary for forfeiture, meaning a guilty verdict or even official charges may not be necessary for forfeiture. And while Article 8, Section 2, of the Indiana Constitution states money for forfeited property will go to the Indiana Common School Fund, WSBT states, “In many cases, police departments keep a portion of the money that they seize.” The station points to a lawsuit in Marion County accusing law violations because the money is not all going to the school fund. Critics suggest if the police departments are keeping the money, it creates a profit incentive for them to seize more property.
“The way the law and the practices of law enforcement are currently working, the rights of due process of the defendants aren’t being recognized properly,” said Mike Stephenson, a partner at Stephenson Rife. “Hopefully the new changes can make sure that everyone’s rights are protected, especially from illegal forfeiture and seizure, as it clearly states in the Constitution.”
Changes in Senate Bill 8
The biggest change that Senate Bill 8 will bring about, if it passes, is essentially accountability for suspect property taken. While it does not prohibit confiscation of property gained from illegal means, property will no longer be subject to arbitrary seizure. The new law will allow property to be seized only if the person in possession of it is, after due process, convicted of a crime and the state can show “clear and convincing evidence” in order to seize a defendant’s property. And if the lawsuit in Marion County is also upheld and all funds gained by forfeiture and seizure are sent directly to the Indiana Common School Fund, excluding police departments from using the funds, critics of the current system argue the incentive for confiscating property will be severely lessened, as the profit motive is removed.
Church, Langdon, Lopp, Banet Law, a law firm in New Albany, Indiana, has faithfully served the people and communities of Indiana for several years in a variety of legal areas. We have the experience and resources to help. To ask a question or to set up a consultation, contact us online or call us at 812.725.8224.