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Indiana’s practice of allowing private prosecutors to collect a contingency fee on forfeiture proceeds is not a violation of due process, a federal judge has ruled.
Judge James Sweeney of the Indiana Southern District Court made that determination Wednesday in Amya Sparger-Withers v. Joshua N. Taylor, et al., 1:21-cv-2824.
The complaint, filed in November 2021, challenged Indiana Code § 34-24-1-8, which allows elected prosecutors to contract with private attorneys to prosecute civil forfeiture actions on a contingency-fee basis that allows the private lawyer to keep a statutorily-set percentage of the proceeds from a successful forfeiture.
The Virginia-based Institute for Justice, representing a class of plaintiffs subject to forfeiture actions, argued that practice violates the 14th Amendment.
But Sweeney disagreed.
The plaintiffs relied on Marshall v. Jerrico, Inc., 446 U.S. 238 (1980), which upheld a provision of the Fair Labor Standards Act that allowed civil penalties assessed by the Department of Labor to be paid back to the Department of Labor.
But the Marshall court also identified “outer bounds” on acceptable prosecutorial behavior — bounds that, according to the plaintiffs, made I.C. 34-24-1-8 unconstitutional.
However, according to Sweeney, the court in Marshall “was not announcing new rules.”
“The Court makes that clear when it returns, in summation, to its original proposition: ‘the strict requirements of neutrality cannot be the same for administrative prosecutors as for judges’ because impartial judges, not impartial prosecutors, are the guarantors of a fair adversarial proceeding,” he wrote.
Sweeney also looked to Medina v. California, 505 U.S. 437 (1992), which holds that a state law is not to be struck down unless it “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
Sweeney undertook a review of historical prosecutorial practices in the United States, noting that for a period of about 100 years, “states provided for law enforcement by informers working for reward.”
“Rewards were a common incentive for successful prosecutions,” the judge wrote. “And there was no belief that the prosecutor (or informant) in a criminal case had any special duty to justice in the abstract, apart from his role as one side’s advocate in an adversary system.
“… Even the Supreme Court in Berger — whose observation that a public prosecutor’s interest ‘is not that it shall win a case, but that justice shall be done’ gives the text for many a sermon on prosecutors’ noble disinterestedness — concluded that ‘[i]t is as much [the prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one,’” Sweeney continued, citing Berger v. United States, 295 U.S. 78, 88 (1935). “So, to argue that a prosecutor becomes too zealous when motivated by a contingent fee is to deny the basic premise of the adversary system. There is no correct level of motivation (are prosecutors supposed to be all equally blasé?) just as there is no correct level of skill — the idea is that each side will put its best foot forward and the neutral tribunal will find the truth.
“Because IFJ cannot show that Indiana’s use of contingency-fee private prosecutions ‘offends some principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,’” Sweeney concluded, “its case fails and the law stands.”
In a news release issued Thursday, the plaintiffs vowed to appeal.
“Yesterday’s decision breaks not just with the reasoning of courts across the nation, but with the views of the U.S. Department of Justice,” Sam Gedge, a senior attorney for the Institute for Justice, said in a statement. “Every forfeiture defendant has the right to a prosecutor who is financially disinterested and whose incentive is to do justice, not turn a profit. We look forward to the court of appeals reviewing the case.”
“In America, prosecutors cannot have a personal financial stake in the cases they prosecute,” IJ attorney Mike Greenberg added in a separate statement. “As law-enforcement agencies nationwide recognize, for-profit prosecutions distort prosecutorial incentives and delegitimize the justice system.”
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