Indiana Attorney General on Asset Forfeiture Abuse: Not My Problem.

Wednesday, August 18th, 2010

In my Monday column on how prosecutors and police in Indiana get around the state’s requirement that all asset forfeiture proceeds go to a fund for the state’s public schools, I noted that Indianapolis attorney and college instructor Paul Ogden found that over the last two years, just five of the state’s 92 counties had paid any money into the fund at all. The Indianapolis Star found the same thing in a report this weekend.

So not only are some Indiana counties contracting forfeiture cases to private attorneys on a contingency basis—which forfeiture experts I consulted say is a violation of the U.S. Constitution’s Due Process clause—more than 90 percent of the state’s counties are ignoring the schools fund requirement altogether.

So what does the attorney general have to say? When I contacted the office of Indiana Attorney General Greg Zoeller for my February article on forfeiture, I received no response. But Ogden notes that Zoeller’s office office did issue this dismissive, almost sarcastic response to an inquiry from Joel Schumm, a professor at the Indiana University School of Law-Indianapolis.

“The 92 county prosecutors are the attorney general’s clients, and we provide them legal advice upon request. We do not serve as the accountant for other units of government.”

Ogden responds:

Excuse me? Where in the law does it say that the AG has to be invited to offer legal advice to public officials? Further, is the Department of Education not a client of the Attorney General? Is the Treasurer’s Office, which is responsible for the Common School Fund, also not a client of the AG? And what about the Indiana General Assembly? Does our legislature not have a right to trust that the AG is going to insist that public officials follow the laws it passes?

Contrary to the claim of the spokesperson, the Indiana Attorney General does not have a responsibility to aid county prosecutors in the violation of the civil forfeiture law, a violation that is reslulting in the diversion of millions of dollars in forfeiture funds away from Hoosier children and to their own coffers.

I wonder what Zoeller would do if a local prosecutor decided to stop enforcing the state’s drug laws?

The attorney general is also the state’s highest-ranking law enforcement official. He’s required to enforce the law even when the people who are violating it happen to be other prosecutors, even when the violations of the law are widespread, even if the violations aren’t necessarily for personal gain, and even if this is just the way it’s always been done.

It would be one thing for Zoeller’s office to say it has a different interpretation of the law—perhaps explaining why Zoeller believes the various ways around the schools fund requirement are legally permissible. But the statement above nearly mocks concerns about how forfeiture proceeds are being used, and dismisses the diversion of millions of dollars in forfeiture proceeds as something akin to a bookkeeping decision. It’s pretty arrogant, even for a politician.

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18 Responses to “Indiana Attorney General on Asset Forfeiture Abuse: Not My Problem.”

  1. #1 |  J sub D | 

    You expect the AG to demand compliance with the law from his drinking buddies? He’s got a VFW poker raid (or some such silliness) to prosecute for chrissakes.

  2. #2 |  Cynical in CA | 

    One thing I’ve noticed about humans is they tend to try to get away with whatever they think they can get away with.

    Oh, we all like to think we’re above that, but a little introspection should reveal the near-universal truth of the above statement.

    For those of you perfect law-abiders? Well, you simply think you can’t get away with anything, or it just isn’t worth the risk, or blind obedience to the law just comes naturally to you — what a noble trait.

    Now, imagine you are a public official, mighty or low. There are literally no checks on your power. What would you do? Is it any surprise scandals like asset forfeiture exist?

    Unless and until the individuals of this land decide they have had all they can swallow and in great enough numbers, it will be business as usual forever.

  3. #3 |  Helmut O' Hooligan | 

    “I wonder what Zoeller would do if a local prosecutor decided to stop enforcing the state’s drug laws?”

    Probably charge him with official misconduct (or whatever the relevant charge would be in Indiana) and then try to have the “scofflaw” prosecutor disbarred in Indiana. Just a guess.

  4. #4 |  Cyto | 

    This brings up an interesting side issue. When the government clearly fails to follow the law – in this case it is a statute, but we have also seen many cases where the Federal government oversteps its constitutional authority – who can stop them? In theory a court challenge is the first line of defense, but we often see the courts denying challenges to new laws based on “standing”. I seem to remember a case a couple of years ago where the only people the courts deemed to have standing were the members of the legislature that passed the law.

    I cannot imagine a reading of the constitution that allows for most of the actions of the Feds in the last 18 months – TARP (created then redirected for a different purpose), the takeover of multiple major manufacturers, abrogation of bankruptcy law (and concomitant theft of 30 billion dollars from creditors of GM), takeover of the healthcare industry (slow and stealthy as it may be), etc. Nobody apparently has any standing to challenge any of these actions. And if they did? The horse has left the barn – good luck putting any of this right should the courts dare to find that the constitution is more than a T-shirt slogan for hippie protesters.

  5. #5 |  BamBam | 

    “But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”
    Lysander Spooner

  6. #6 |  Citizen of the United States | 

    As a born and raised Hoosier, this article makes me very angry. During the last few years, Indiana has had to impose major budget cuts for its schools, due to lack of funds. It is just impressive that the police and the courts, the people who are supposed to protect our rights and freedoms, care so little about school, education, the law, etc that they are doing this, in spite of the fact that Indiana schools are having major issues. It makes me sick.

  7. #7 |  Windy | 

    Citizen, the prosecutors should be following the law, without question; but government indoctrination centers (better known as schools) do not educate, they school, train, and indoctrinate. The whole country would be better off if we were to separate schools and state.

  8. #8 |  Ben (the other one) | 

    I’m not licensed to practice law in Indiana, but this issue raises several legal questions in my mind.

    First, I’m not sure what would be the due process challenge to enforcement of forfeiture laws by a private practitioner. I think it’s a really terrible idea, but there are other areas (including the False Claims Act, which is the subject of my practice) where private individuals and attorneys are empowered to represent the government’s interests. Those have been upheld despite constitutional challenges (the most significant of which have been on executive powers grounds).

    Second, re: Cyto (#4), many states’ standing doctrines are much less stringent than in the federal courts, whose jurisdiction is limited by the U.S. Constitution to “cases and controversies.” In Indiana, as far as a quick look at Westlaw tells me, there is a recognized “public standing” doctrine which would seem to permit a private citizen to bring suit as a “relator” on behalf of the state. See State ex rel. Cittadine v. Indiana Dept. of Transp., 790 N.E.2d 978, 979-80, (Ind. 2003). The basis for such a suit could be a petition for a writ of mandamus, historically used to compel a public official (or one acting in a public official’s capacity) to take action required by law. But again, I’m not a member of the Indiana bar.

  9. #9 |  TDR | 

    @#2: Great point, Cynical. I totally agree. But doesn’t this very same dynamic undermine the prospects for the anarchy you hold so dear?

  10. #10 |  Cynical in CA | 

    That’s the logical rebuttal, TDR. However, I believe it is competition that provides the greatest check on the behavior of others.

    In a monopoly situation like the present one, there is no competition to the State — thus, The Agitator has an infinite supply of reading/writing material, I’m sure we’ve all noticed that by now.

    In anarchy, with each individual being sovereign, there is as much competition as possible. The rules would get sorted out rather quickly, and quite possibly very messily at first — I mean, there’s a lot of necessary unwinding of the damage of Statism for the last forever.

    But it has to be this way. The present situation is the result of the delegation of self-defense to an unaccountable superagency. In order to change the situation, that delegation must be withdrawn and individuals must be responsible for their own self-defense.

    That’s what we’re all arguing for here, whether one admits it or not. The kind of “eternal vigilance” of which the Founders spoke requires incessant oversight and accountability of public officials. For the average private citizen who is concerned with food, clothing, shelter and providing for the future, this is an impossibility. But anything less than individual sovereignty creates the conditions for the inevitable rampant abuse of the citizenry by public officials. The Agitator proves this daily.

    I grant that violence is a constant in human society. I believe there is no eradicating it, either under statism or anarchy — humans are a self-interested, self-absorbed lot. State violence can be imagined as rather splotchy — there are smaller patches of extreme violence (war zones, lower income neighborhoods) and large patches of relative non-violence (upper income residential areas). I agree that the system is set up so that most people are willing to take their chances under statism, as long as they are not affected personally (selfishness).

    What I see happening under anarchy is a smoothing out of the map of violence, with the kind of mega-violence committed by the State dissolving into the rest of society, which would cause a seeming uptick in the overall level of violence when viewed by presently upper income people. But over time, as individuals learn to cooperate better as true equals, the violence should tend to decrease. After all, it was the State that brought us nuclear war. A move in the opposite direction should move us away from mass destruction.

    I don’t have all the answers and I recognize the fear and uncertainty that accompany the idea of individual sovereignty or anarchy, but if one recognizes the Statist paradigm as destructive to the individual, I don’t see any way to reconcile its existence.

    For now, the healthiest strategy a society of individuals can pursue is decentralization to the smallest possible unit, whatever that may be, with each of these units competing against each other for members. Alas, the trendline is moving rapidly in the opposite direction.

  11. #11 |  Glenn Dale | 

    Did you see that a former Texas DA has been indicted for improper use of Forfeiture Funds? http://www.cnn.com/2010/CRIME/08/18/texas.da.indicted/?hpt=Sbin

  12. #12 |  SJE | 

    “pretty arrogant, even for a politician”

    That’s because he is a PROSECUTOR

  13. #13 |  TC | 

    It is no longer NOT gone far enough to just shoot the bastards!

    It’s possible some of the other bastards will git the message!

    DO NOT ELECT LAWYERS FOR ANY POSITION THAT DOES NOT REQUIRE BAR MEMBERSHIP! ever!!

    Throw those out of office if they qualify.

    Above all; RE-ELECT NO-ONE!!!

    By never putting anybody back into public office, they will not get comfortable enough to think it’s ok to pull yer panties down and bend you over! EVER!!!

  14. #14 |  CTD | 

    In Missouri, forfeiture money is also supposed to go to “education” or somesuch. Here the local cops just call up a federal agent to go on the raid with them. This makes it a “federal” forfeiture. The feds take the money, then give a kickback to the local cops. That way they don’t have to pay “their” loot back to the taxpayers.

  15. #15 |  Cynical in CA | 

    Who was it who wrote here, “totalitarian anarchy?”

    Such shorn sheep, Americans.

  16. #16 |  Chris in Indy | 

    I live just outside of Indianapolis and know Garrison very well from his local radio show. It’s amazing the amount of hypocrisy, when, this man blasts the tyranny and spending of government, but then takes huge sums of money working on these types of cases from the state of Indiana and Marion County. Isn’t there something that perhaps the ACLU or another civil libertarian organization can do to bring legal action against these counties and lawyers who violate the law and people’s property rights?

  17. #17 |  Vote for the Worst Prosecutor of 2010 | The Agitator | 

    […] Indiana’s Attorney General and hence its highest-ranking law enforcement official, said it wasn’t his problem. It took an Indiana law firm suing the county prosecutors to finally attract Zoeller’s […]

  18. #18 |  Anthony/Lisa Hastings | 

    Forfeiture abuse Indiana, Hendricks county,
    I know first hand what happen to us, cops bust in, violate my 4th amendment constitutional rights, by showing up with 2 large trucks, and exceeding the scope of the search warrants listed items authorize by the judge to seize, Taking everything , the warrant said look for 6 or 7 things but thousands of items was taken. The Prosecutor James Bryan of Hendricks county showed up with his UDTF. They went on a shopping spree. Now, because my wife and I worked all of our life, made excellent money from working and could of proved it, but false allegations were made, and threats were made against us. I smoked weed for 30 years, and did not buy weed to sell, but I did go and get 2 OZ of weed for a girl I knew well. I called the dealer I hadn’t seen for 6 months, he met me and I did do this for her, for the exact price of the weed, I made no profit,I lost money ,with gas , but My property was then taken. I was threaten with a increased criminal penalty if convicted for exercising my rights in the related civil forfeiture case, the prosecutor filed. also he threatened to arrest my wife for maintaining a common nuisance, that would of caused her to loose a job making over 100K a year ! If we fought the forfeiture case!! The Prosecutor James Bryan, played a dual role also the attorney for the UDTF, This dual role was ruled unethical for prosecutor Mark McKinney in Delaware county by the Indiana supreme courts disciplinary commission, but not for the same crap Bryan did?? Bryan threatened to arrest my wife if she didn’t pay off our new 2005 Kia amanti for $12,436.00 and send the title to him! I have the check copy, and the BMV record showing he retitled this car to himself, The cops stole thousands of dollars worth of property, we didn’t have any rights, my wife couldn’t even communicate with me while in jail, no mail, no accepting phone calls, no visits,, or she would be arrested. Only after the forfeiture case was finished could she visit and answer my calls. What in the hell is going on,see indy.com forfeiture abuse by Heather Gillers, nov 7th 2010. Putting justice up for sale. I need help, Please help us stop this violation of our rights, making false claims, threats, extortion..theft, prosecutor and cops kept all of our stuff ($150.000.00) worth for thereself, we had proof everything was purchased with money from gainfull employment, it was all on the credit cards, and my wife earned and paid it all from her work checks..This case is the worst case of government corruption we have ever seen, and I hope some one reads this. Even the supreme court disciplinary commission dismissed it ? WTF…This guy drives our car for 2 years, while my wife works and makes payments on it. Yeah,, Thats right. email me….I would love to hear from you. hastings_anthony@yahoo.com

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