After Terry Abbott was accused of selling drug to an informant, Indiana police took almost $10,000 from him.
Civil forfeiture allows police to seize those funds before being charged with a crime. Abbott tried to fight that decision in court. But he lost his attorney—as the money he would use to pay for that counsel had been taken by the state.
He was forced to be his own representative for many years.
The Indiana Supreme Court on Tuesday decided that’s in keeping with the law—ruling that defendants have no right to use their seized funds to finance legal representation.
Justice Steven H. David stated that, “we don’t believe the legislature meant this language to give court equitable authority to ordonn the seized properties released to the defendant in defense of the forfeiture actions.” He also noted that the applicable statute tied the court’s hands.
The American criminal justice system holds that all defendants are innocent until proven guilty. However, civil forfeiture does not constitute a criminal offense. Instead, it is a civil action that takes place in civil court. Defendants aren’t necessarily entitled to a legal representative. A state is only required to provide one in extraordinary cases, the court decided.
Abbott didn’t qualify. In cases such as his, the government can put defendants under a gag order by seizing assets they might use to defend against such seizures. It can be difficult to fight for your money back once the government takes all your cash.
“One of many problems with civil forfeiture nationally is that the government can seize your cash and cars as well as your home. However, unlike in a case for a crime, you don’t have the right or the authority to appoint counsel,” states Sam Gedge who is an attorney for the Institute for Justice. You can’t afford a lawyer if you need to protect your money, your cars, or homes from civil forfeiture proceedings. This is not surprising for many people targeted by civil forfeiture cases.
The federal and state governments can take you away for almost all that you are worth. Indianaans may already know this. After Tyson Timbs was arrested for drug crimes, Indiana took Tyson Timbs Land Rover from him. This set off a nearly decade long legal battle between Timbs as well as the state. In 2020, the State was required to turn over the vehicle. Prosecutors continued fighting, insisting before the Indiana Supreme Court 2021 that the vehicle should be returned. Please enter no proportionality—no limit—on what the government can seize in cases like Timbs’. Last summer, the winning argument of Timbs was rejected by the highest court in state.
However, civil forfeiture has not stopped and continues to be a source for funding police. Local and state departments are allowed to keep most of the money that they have taken. Just last year, the Indiana Senate passed a bill to allow cops to seize assets from people suspected of committing “unlawful assembly,” a charge so vague that whether or not someone committed it is somewhat in the eye of the beholder—who, in this case, would be an arresting officer.
Federal civil forfeiture can also be used, but it poses many of the same issues. After informing Carl Nelson that he was being investigated for fraud, the FBI took almost $1 million. Two years later no criminal charges were filed against Nelson and some of the money was returned by the government. Nelson was forced to fight back against the government’s actions, much like Abbott. He had previously been temporarily bankrupted. Amy Nelson, Nelson’s wife, said to me that if you don’t have the money to feed and defend yourself it can become complicated.
What about the Hoosier State? Gedge says, “The Indiana Legislature has the ball.”