Policing and prosecuting for profit contradicts reasonable notions of justice and fairness, yet it’s allowed in most U.S. states. Using a process known as civil asset forfeiture, law enforcement agencies seize private property that they claim was somehow involved in a crime. And they may keep it — even if the owner is never criminally charged. This abusive practice has become a key source of funding for some police and sheriff’s departments.
Many of the constitutional rights to which Americans are entitled in criminal proceedings do not apply in civil forfeiture cases. The standard of proof is far lower than “beyond a reasonable doubt.” The government need not prove guilt, and in fact people who try to get their property back must prove their innocence — if they can afford to. They have no right to counsel, which means they have to pay a lawyer out of their own pocket.
The asset forfeiture system is so egregious that a wave of reform has swept the nation in recent years. In California, the government now at least has to prove that the owners knew their property was involved in a crime, even if they aren’t the ones who committed it.
But there’s still a perverse incentive to seize property. California police agencies get to keep 65% of everything they grab if they win a civil forfeiture action in court. Prosecutorial offices get 10%. An additional 1% goes to a fund controlled by the state prosecutors association.
It’s a recipe for abuse, and in some states it’s far worse.
Consider Indiana. It’s the only state in the U.S. that allows elected prosecutors to contract out civil asset forfeiture cases to private lawyers. The contractors get a substantial cut of whatever they win, and nothing if they lose, so they have every incentive to grab as much property as possible. But unlike government prosecutors, they are unhindered by a responsibility to seek justice. Their only task is to win.
It should go without saying that financial gain should play no part in a district attorney’s decision to prosecute a case or a police agency’s decision to enforce the law.
Other states that once had Indiana-style private-prosecuting-for-profit schemes gave them up long ago. In 2012, for example, a Georgia appeals court called that state’s contracting-out practices “repugnant,” and the Legislature outlawed them.
But it’s different in Indiana, where well-connected private attorney Joshua Taylor holds the local prosecutor’s forfeiture contracts in 20 of the state’s 92 counties. In 2021, Taylor went after $6,096 belonging to then-21-year-old Amya Sparger-Withers, who was at the time facing marijuana charges. Unlike many forfeiture targets, though, Sparger-Withers fought back. With the help of the Institute for Justice, a libertarian-oriented public interest law firm, she filed a class-action lawsuit challenging the state’s for-profit prosecution system.
She lost in federal trial court but is now appealing to the 7th U.S. Circuit Court of Appeals.
The case has support from a broad spectrum of the legal community who are righteously outraged at this government overreach (masquerading as a lawsuit by a private lawyer) against a legally innocent citizen.
Progressive district attorneys have also signed on to a brief filed by Fair and Just Prosecution, including Los Angeles County Dist. Atty. George Gascón, Contra Costa County Dist. Atty. Diana Becton and more than 50 other current and former prosecutors and law enforcement leaders. They support the long-established principle that prosecutors are more than just lawyers whose clients happen to be the government, and must meet higher standards of justice.
The fight to defend that principle against ominous pushback from the conservative legal and policing establishment is a strong undercurrent in Sparger-Withers’ case.
That pushback can be seen in the impeachment of Philadelphia Dist. Atty. Larry Krasner by the Pennsylvania Legislature in 2022 and the Florida governor’s removal of Hillsborough County state attorney Andrew Warren — and numerous other efforts — for seeking what the elected prosecutors considered the most just result in cases, instead of doing all they can to secure convictions and the toughest possible sentences.
The same type of pushback is evident in the Indiana federal judge’s opinion in Sparger-Withers’ case. He remarked with obvious disdain about “many a sermon on prosecutors’ noble disinterestedness.” He asserted that historically “there was no belief that the prosecutor had any special duty to justice in the abstract, apart from his role as one side’s advocate in an adversary system.”
But he also noted that the Supreme Court wrote in a 1935 opinion that the proper goal of prosecutors “is not that [they] shall win a case but that justice shall be done.” It’s an ancient principle with deep roots.
The American system of justice is a remarkable achievement, although not flawless. Although laden with injustices it is embedded in a larger system of democratic representation and civil rights that ensures an ongoing process of reform. Sparger-Withers’ suit is in that reform tradition.
Arguments before the 7th Circuit are expected later this year, and they will be closely watched. At stake are due process for Indianans and the rights of all Americans to a legal system in which elected prosecutors are expected to seek justice rather than profit for their agencies or their cronies in private law practice.
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