Public Prosecution, Private Profit
Nationwide, civil forfeiture suffers from many structural problems. Governments do not have to prove their cases beyond a reasonable doubt. Property owners are not entitled to appointed attorneys. Police departments and other enforcement agencies get a cut of forfeiture proceeds. The list goes on.
When it comes to civil-forfeiture abuse, however, Indiana has long stood apart. Unlike every other state in the nation, Indiana farms out civil-forfeiture prosecutions to private lawyers on a contingency-fee basis. What does that mean? Simply, that many forfeiture prosecutors in Indiana have a personal financial stake in the cases they prosecute. They make money if the state wins. They don’t if the state loses.
The system is notorious. A leading forfeiture treatise, for example, describes “Indiana’s institutionalized bounty hunter system” as a “scandal.” For decades, contingency-fee forfeiture gigs have been seen as “gravy jobs” that “go to people who have connections.” Private lawyers prosecute forfeiture cases in some counties and defend them in others. In 2011, an elected prosecutor had his license suspended for having abdicated “his duties as a public official” in service of “his private interest in his continued pursuit of forfeiture property”—an incident that even made its way into a prominent legal-ethics casebook.
A couple of years ago—incredibly—the Indiana Legislature doubled down. It codified for-profit forfeiture prosecutions in official state law. The law on the books today doesn’t just bless contingency-fee forfeiture prosecutions; it requires that hired-gun prosecutors be paid on a contingency-fee basis.
The system is now in use in around 35 Indiana counties, generating $1.3 million for private attorneys in the past three fiscal years. At a structural level, the system runs on making money, not doing justice.
The Legal Challenge
The justice system embodies a formidable and terrifying exercise of state power. And the least we as citizens can expect is that prosecutors pursue justice, not personal financial gain. A financially disinterested prosecutor is a fundamental aspect of due process. But when it comes to civil forfeiture in Indiana, that principle has gone by the wayside. With personal profit on the line, private prosecutors are incentivized to make money, not steward the public trust and see that justice is done.
Perhaps the biggest beneficiary of Indiana’s for-profit forfeiture system has been the Garrison Law Firm. As early as 1990, media reports noted that “[m]ost officials credit[ed] the incredible growth spurt in forfeitures to the persistent efforts of J. Gregory Garrison,” the firm’s founder. “Who cares if I made good money,” Garrison would say, “if I made the county $300,000?” For the government too, the prosecutors’ financial self-interest is a feature, not a bug. In 2010, for example, then-Marion County Prosecutor Carl Brizzi justified farming out cases to Garrison because “he doesn’t get paid unless the state gets paid, so obviously he’s motivated to do the best job he can.”
A system that influences prosecutorial discretion in this way violates the Due Process Clause at a bedrock level. Prosecutors wield enormous power, and under our system of ordered liberty, there must be no question that they are exercising that power in the public’s interest—not for personal financial gain. A law that directly motivates prosecutors to “get paid” cannot be squared with that basic rule-of-law principle.
That is why the Institute for Justice is fighting to put a stop to Indiana’s for-profit prosecutors once and for all. Since Greg Garrison’s retirement in 2019, one of his colleagues, Joshua N. Taylor, has stepped into his shoes, taking over contingency-forfeiture contracts in no fewer than 16 Indiana counties. In a class-action lawsuit spearheaded by a defendant in one of Taylor’s many cases—22-year-old Amya Sparger-Withers—the Institute for Justice is asking the federal courts to put a stop to Indiana’s profit-fueled forfeiture cases once and for all. Amya—and every other forfeiture defendant—has the right to a prosecutor who is financially disinterested, whose structural incentive is to do justice, not turn a profit. The Constitution demands nothing less.
The Litigation Team
The litigation team is IJ Attorneys Sam Gedge and Bob Belden, Law & Liberty Fellow Mike Greenberg, and IJ Senior Attorney Anthony Sanders.
About the Institute for Justice
The Institute for Justice is the nation’s leading advocate for private property rights and the abolition of civil forfeiture. IJ is currently litigating a nationwide federal class action against the TSA and the DEA on behalf of travelers who have been unlawfully detained and had their cash seized without probable cause at airports across the country, as well as a nationwide federal class action against the United States and the FBI on behalf of hundreds of people whose property was illegally seized from privately owned safety deposit boxes. IJ recently brought a class action lawsuit against Harris County, Texas (Houston) over its civil forfeiture processes.
IJ regularly comes to the defense of Americans nationwide to fight civil forfeiture, including the owner of a small trucking business who had his cash seized at an airport in Arizona; a nurse traveling to her home in Nigeria to start a medical clinic for women and children; and a retiree traveling to purchase a home in his native Albania.
IJ also has a long history of opposing schemes where government power is used for private profit. In 2003, IJ published “Public Power, Private Gain,” a landmark survey of eminent domain abuse.