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- Title
PROSECUTING CIVIL ASSET FORFEITURE ON CONTINGENCY FEES: LOOKING FOR PROFIT IN ALL THE WRONG PLACES.
- Authors
Rum, Louis S.
- Abstract
Civil asset foiture bas strayed far from its intended purpose. Designed to give law enforcement powelful tools to combat maritime offenses and criminal enterprises, fo*iture laws are now used to prey upon innocent motorists and lanful homeowners wbo are never cbaged witb crimes. Their onfy sins are tbat tbo an carginglegal tender wbile driving on bufy bigbwals or providing sbelter in their bomes to adult children and grandchildren wbo allegedj sold small amounts of low-level drugs. Civil fo*iture abuses are commonplace tbrougbout tbe countg witb some police even armed witb legal waivers for propert), owners to sign on tbe spot, permanentj banding over their casb under intimidating and coernve conditions. These widespread abuses are attributable to many factors. Backed by strong law-enforcement lobbies, civil forfeiture laws place low burdens of proofon government prosecutors while providing weak protections for proper(y owners. No state provides for a right to counsel in ivil folfeiture cases, and *fault judgments abound, resulting in bigbpmentages oftakings tbat are never tested in tbe courts. But, most signijficantl, it is dvil fo*iture's built-in profit motive tbatfuels persistent abuses as prosecutorial and police budgets benefit directb from tbe buge amount of forfeiture proceeds amassed eacb year. So long as dvil Joifeiture laws direct tbat all, or most, forfeiture proceeds jiow to prosecutors wbo make tbe decisions on wbetber to pursue Jo*iture, modest Americans will wrongfulb lose their bard-earned properD. While many states bave enacted recent reforms at tbe margins Of civil »feiture, most states still retain a strong projit motive tbat is embedded in their laws. Some states, like Indiana, bave supersiged tbis projit motive by autboriong private lanym to prosecute civil Jodeiture cases on contingeng fees, winning as mucb as tbey canfor themselves from tbe properly tbey can successfully folfeit. Wbat was once billed as a weapon needed to jight crime is now a voracious grab of properfy for budgetaty gain. Tbis Article reviews tbe ethical prohibition on tbe use of contingeng fees in criminal cases and ages tbat tbe same reasoning sbould apply to quasi-criminal cases sucb as tbe prosecution of civil folfeiture cases. In support of tbis a, Rument, tbe Article examines court data in civil fo*iture cases prosecuted gy government la~ers in Indiana's most populous county and compares it to cases prosecuted by a well-known private attornfy on bebalf of multiple Indiana counties wbo is compensated exclusive~ by contingeng fees. Tbe data, tbougb limited, raises troubling concerns. In cases prosecuted by tbe private attorng, tbe data reveals mucb bigber default rates, significantfy lower settlement rates, and a marked decrease in tbe amount of proper(y retunted to owners. Moreover, it is not onty property owners wbo lose. Tbe data suggests tbat tbe Indiana Common School Fund is also a big loser wben tbe pursuit Of profit prevails over tbe interests of.justice. Immediate action is needed to prohibit contingeng fees in tbe prosecation of Civil folfeiture cases as tbey are unethical and compromise tbe prosecutor's sworn obligation to pursue justice above all. Courts, as well, should refuse to enforee contingeng contracts presented 43 Private la~yers for prosecuting civil fo*iture cases as tbey violate public polig. Unless tbis bounfy ostem is ended, innocent proper, owners-lageb from low-income families and communities of color-will continue to lose their lawful property to tbe pursuit Of profit.
- Subjects
INDIANA; ASSET forfeiture; REGULATORY crime; LAW enforcement
- Publication
Alabama Law Review, 2021, Vol 72, Issue 3, p531
- ISSN
0002-4279
- Publication type
Article