Prosecuting Civil Asset Forfeiture on Contingency Fees: Looking for Profit in All the Wrong Places

Civil asset forfeiture has strayed far from its intended purpose. Designed to give law enforcement powerful tools to combat maritime offenses and criminal enterprises, forfeiture laws are now used to prey upon innocent motorists and lawful homeowners who are never charged with crimes. Their only sins are that they are carrying legal tender while driving on busy highways or providing shelter in their homes to adult children and grandchildren who allegedly sold small amounts of low-level drugs. Civil forfeiture abuses are commonplace throughout the country with some police even armed with legal waivers for property owners to sign on the spot, permanently handing over their cash under intimidating and coercive conditions. These widespread abuses are attributable to many factors. Backed by strong law-enforcement lobbies, civil forfeiture laws place low burdens of proof on government prosecutors while providing weak protections for property owners. No state provides for a right to counsel in civil forfeiture cases, and default judgments abound, resulting in high percentages of takings that are never tested in the courts. But, most significantly, it is civil forfeiture’s built-in profit motive that fuels persistent abuses as prosecutorial and police budgets benefit directly from the huge amount of forfeiture proceeds amassed each year. So long as civil forfeiture laws direct that all, or most, forfeiture proceeds flow to prosecutors who make the decisions on whether to pursue forfeiture, modest Americans will wrongfully lose their hard-earned property. While many states have enacted recent reforms at the margins of civil forfeiture, most states still retain a strong profit motive that is embedded in their laws. Some states, like Indiana, have supersized this profit motive by authorizing private lawyers to prosecute civil forfeiture cases on contingency fees, winning as much as they can for themselves from the property they can successfully forfeit. What was once billed as a weapon needed to fight crime is now a voracious grab of property for budgetary gain. This Article reviews the ethical prohibition on the use of contingency fees in criminal cases and argues that the same reasoning should apply to quasi-criminal cases such as the prosecution of civil forfeiture cases. In support of this argument, the Article examines court data in civil forfeiture cases prosecuted by government lawyers in Indiana’s most populous county and compares it to cases prosecuted by a well-known private attorney on behalf of multiple Indiana counties who is compensated exclusively by contingency fees. The data, though limited, raises troubling concerns. In cases prosecuted by the private attorney, the data reveals much higher default rates, significantly lower settlement rates, and a marked decrease in the amount of property returned to owners. Moreover, it is not only property owners who lose. The data suggests that the Indiana Common School Fund is also a big loser when the pursuit of profit prevails over the interests of justice. Immediate action is needed to prohibit contingency fees in the prosecution of civil forfeiture cases as they are unethical and compromise the prosecutor’s sworn obligation to pursue justice above all. Courts, as well, should refuse to enforce contingency contracts presented by private lawyers for prosecuting civil forfeiture cases as they violate public policy. Unless this bounty system is ended, innocent property owners—largely from low-income families and communities of color—will continue to lose their lawful property to the pursuit of profit.