INDIANAPOLIS -- So that law enforcement is adequately funded to investigate, arrest and prosecute well-funded criminal drug networks, Attorney General Greg Zoeller is working with state legislators to draft and pass a bill to reform Indiana's civil forfeiture law.
"I am committed to advocating for all law enforcement to ensure that they have the resources necessary to conduct extensive undercover investigations so the offenders who are part of the growing problem of drug and gang networks can be successfully prosecuted. Because the funds that law enforcement receives from civil forfeitures have been questioned for the past year, I am working with legislators to rewrite the statute and end any uncertainty about these funds," Zoeller said Tuesday.
Zoeller is recommending that members of the Indiana General Assembly in the 2011 session pass legislation that would do the following:
* Avoid disputes over calculating the exact costs of investigative work by establishing a formula for how civil forfeitures will be apportioned. Law enforcement agencies, county prosecutors and the Common School Fund each would receive a percentage determined by the Legislature. Zoeller said the percentage amounts are open to discussion but each of the three entities should receive a consistent, flat rate in all civil forfeiture cases.
* More strictly regulate the use of outside counsel attorneys hired on a contingency basis who file civil forfeiture actions on the prosecutor's behalf. Out of a concern that a few attorneys receive large windfalls, Indiana needs stronger controls governing the circumstances when prosecutors can hire outside counsels and setting limits on the contingency fees they can receive in civil forfeitures, Zoeller said.
Zoeller's recommendation comes as the Indiana Attorney General's Office is defending 78 county prosecutors, including Putnam County's Tim Bookwalter, in a lawsuit alleging improper disposition of forfeiture proceeds that was recently unsealed in Marion County Superior Court.
Under state law, the Attorney General represents county prosecutors sued in civil actions in connection with their jobs.
At issue in this new lawsuit is the method of calculating the portion of civil forfeiture proceeds -- seized from drug dealers and other criminals --that must be remitted to the Indiana Common School Fund. Current law allows police and prosecutors to seize the proceeds of the crime from the offender and file a forfeiture action in order to use those proceeds to fund law enforcement efforts.
The plaintiff claims the law requires a greater portion of such proceeds to be remitted to the Common School Fund. That account is used to loan schools funds for technology and construction projects.
For the past year, questions have been raised among policymakers and in the news media whether the current forfeiture law is too vague. Seeking clarification, the Indiana Prosecuting Attorneys Council (IPAC) requested an official legal opinion from the Attorney General's Office about the legal distinction between criminal forfeitures and civil forfeitures. That opinion was issued May 12 and published on the Attorney General's website.
But different county prosecuting attorneys have various interpretations for calculating law enforcement costs that may be funded by forfeiture proceeds, with some routing all seized assets back into law enforcement while others prepare meticulous billings and send the Common School Fund any overage.
"Under the current law, prosecutors have a great deal of autonomy to decide how to direct any civil forfeiture funds they recover from drug offenders they sue," Zoeller said. "There needs to be clarity of intent from the Indiana General Assembly as to whether assets seized and forfeited from criminal defendants should be directed to law enforcement to fund drug interdiction and enforcement efforts, or to the Common School Fund. The place to have that debate is in the legislative branch which has the ability to change the statute -- not in court, through a lawsuit."
Criminal drug-trafficking organizations -- particularly international drug cartels -- have grown increasingly sophisticated and lethal, Zoeller noted. And at the same time, the methods of and equipment used in police undercover investigations have greatly evolved.
In recent days, Zoeller, state legislators and IPAC have discussed proposals for legislation that Zoeller hopes will pass in the 2011 session of the Legislature and resolve the larger issues over forfeiture.
"Law enforcement deserves adequate funding to confront growing threats to public safety," Zoeller said. "I have pledged that I will zealously represent prosecutors and will advocate for law enforcement agencies in Indiana during times of necessary budget cuts. There is no more important role of government than ensuring public safety. I urge all legislators to support our criminal justice system as they clarify the ambiguities of the current process."