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The Indianapolis Star today ran an excellent op-ed arguing for more substantive forfeiture reform in Indiana:

A system that encourages a deputy prosecutor to simultaneously profit from prosecutions as a private attorney is anything but fair either to defendants or the cause of public safety.

That’s the reality Hoosiers are stuck with, and the 120-day suspension meted out to former Delaware County Prosecutor Mark R. McKinney doesn’t address what’s fundamentally wrong.

The Indiana Supreme Court’s disciplinary commission found McKinney in blatant conflict of interest for contracting to collect assets from defendants as a private attorney, at 25 percent commission, while employed as a deputy prosecutor.

He’s not the first to be cited for working both sides of the street in this fashion. But the problem runs much deeper than a handful of flagrant abuses.

Indiana’s law, which allows authorities to seize money, cars and other property from arrested persons whether or not they wind up convicted or even charged, invites the abridgement of civil liberties because the assets fund the drug war.

The law also says the money from forfeitures is to benefit the Common School Fund. But as a Star investigation has revealed, all but a few prosecutors in the state have kept virtually all the money, claiming their expenses consume it. In Marion County last year, the total was $1.3 million.

The Supreme Court questioned the practice in a non-binding opinion in April, but Attorney General Greg Zoeller insists on defending the prosecutors against a citizen lawsuit. He says they’re within the law, like it or not.

The law needs changing. A rather weak effort was made in this year’s legislative session, giving the prosecutors 85 percent of the take and the schools 15, while leaving the incentive system intact. Gov. Mitch Daniels vetoed the measure, calling it unconstitutional not to send all forfeiture money to the school fund.

Next year, absent a specific directive by the courts, the General Assembly must go back to the basics.

Other states take the handling of forfeiture money out of the hands of prosecutors, letting city and county councils allocate it. Most states forbid the use of outside vendors as collection agents.

In Indiana, such changes would test political courage. Prosecutors are a persuasive lobby, and taxpayers naturally like the idea that “criminals” themselves are paying for law enforcement. It’s time to face the truth that criminal guilt isn’t a given under prosecution-for-profit, a practice that has its own sins to answer for.


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