What We Don’t Know About Forfeiture Could Speak Volumes

If your child came home from school and showed you a report card with all A’s and B’s, you’d be proud. But what if that report card didn’t show two courses they dropped weeks into the semester that will drag down their GPA? A partial report card doesn’t give a parent the information they need and the same holds true for government reports.

For most of U.S. history, civil forfeiture was a rarely used legal procedure. The concept of charging property with a crime rather than a person has its origins in maritime law, when the government needed a legal process to confiscate goods that might have been owned by someone overseas.

When it started to be used in the war on drugs in the 1980s, things quickly started to go off the rails. Rather than use the criminal law process to take proceeds of a crime, federal and state governments began using a separate civil procedure. In fact, property owners could lose their cash, cars, and even homes without ever being charged with a crime.

As horror stories of innocent people losing their property mounted, states woke up to the potential problems. Many passed laws requiring centralized reporting of civil forfeiture cases to make it easy for lawmakers to understand how forfeiture works in their state. Indiana passed a law requiring prosecutors to report key details on all forfeiture cases.

But a new study from the Institute for Justice, Bad Data, shows that Indiana lawmakers are getting a far from complete report card when it comes to forfeiture. It may be sending them the wrong signals.

Thousands of Unreported Cases

IJ researchers crawled through Indiana’s court cases to identify all forfeiture cases between 2016 and 2023. They then compared those cases to what was in the forfeiture database. What they found were nearly 2,000 missing cases. The amount of currency underreported added up to $10 million and 144 vehicle forfeitures were also unreported.

This massive underreporting is partly a function of the peculiar way that many Indiana counties prosecute forfeitures. In almost half of Indiana counties forfeiture cases are brought by private prosecutors rather than government attorneys. The private prosecutors then get to keep up to one-third of the proceeds of any successful forfeiture.

In these counties, more than half of all forfeiture cases went unreported. For counties that exclusively used government attorneys, only 14% of cases were unreported.

On top of just not filing reports, what is filed is often misreported. IJ analyzed a random sample of reports comparing them to the actual court records of the associated cases. About two-thirds of reported cases had at least one error on key details. This included how much property was forfeited or whether the case was settled.

A Distorted Picture

This nonreporting and misreporting seriously distorts the picture one could get of how forfeiture runs in Indiana. According to the reports, only 0.2% of owners contest forfeiture. But IJ’s sample showed owners contesting more than one-third of cases. The reports also show only 4% of cases settling. However, the sample showed nearly 30% of cases were settled and most of the owners got back some or all of what was seized.

This could indicate both that prosecutors aren’t bringing the airtight cases implied by the reporting and that prosecutors’ cases often fall apart when property owners fight back. It’s concerning because property owners are not entitled to an attorney in Indiana forfeiture proceedings. The median amount of cash seized in uncontested cases is $1,263. At this amount, property owners may just be making an economical decision to walk away rather than pay an attorney more than the amount seized. Two-thirds of cases in IJ’s sample were not contested.

Still, sometimes even uncontested cases ended with a judge opposing the forfeiture. For years, Marion County police have been intercepting packages at the Indianapolis FedEx processing center, the second largest in the country. When they find large amounts of cash, they attempt to forfeit the package, treating the cash as inherently criminal.

In one such case in IJ’s sample, the judge ordered the money sent on to the receiver writing: “Not a single event in the [probable cause] affidavit is a crime as detailed.” In multiple other cases in the sample, cash seized at the processing facility was returned to property owners after they contested the forfeiture.

Why Correct Reporting Matters

Police and prosecutors like to say that civil forfeiture is a crime-fighting tool, but there is no reason why taking proceeds of a crime cannot be done in a criminal case. People charged with crimes are entitled to an attorney and must be convicted beyond a reasonable doubt.

In Indiana, prosecutors only need to prove their case by a “preponderance of the evidence” that the property is connected to a crime. Prosecutors win by showing there is a greater than 50% chance the charges are true.

With these odds and the private prosecution system many Indiana counties use, there is a strong incentive to try to bring as many forfeiture cases as possible rather than bringing only strong cases where there was a clear crime. That’s just not the way justice should work in America.

Indiana is just one state, and only a handful of states have eliminated civil forfeiture. While the report should certainly be of interest to Indiana lawmakers, other federal and state officials should look more closely at forfeiture. Innocent Americans should not lose their cash, cars, and homes to the government. And the government must do a better job of accurately reporting their forfeiture cases.