Utah lawmakers quietly roll back asset forfeiture reforms

January 8, 2014
The Utah State Capitol (L) (AP Photos/Douglas C. Pizac) The Utah State Capitol building (L) (AP Photos/Douglas C. Pizac)

One of my last projects for my previous employer was a six-part series on an emerging police reform movement in Utah. While I was in Salt Lake City to report the series, I talked to several state legislators who expressed interest in reining in police excesses in the state, though none of them were ready to let me quote them by name.

But perhaps Utah isn’t ready for reform after all. Last month, the state’s legislature quietly changed some reforms to the state’s civil asset forfeiture laws that Utah voters approved via referendum back in 2000. The changes will make it much easier for Utah police and prosecutors to take property away from the state’s citizens, often without ever charging them with a crime.

First, a little history: The concept of civil asset forfeiture rests on the legal fiction that a piece of property can be guilty of a crime. Regular forfeiture dates back to English Common Law. The idea was to prevent criminals from benefiting from ill-gotten gains. But traditionally, forfeiture required a conviction, and was limited to property a criminal directly obtained through the commission of his crimes. The ramping of the drug war in the 1980s introduced the concept of civil asset forfeiture: The government could now seize and keep property merely by insinuating it was associated with a crime. It was then incumbent on the property owner to prove that he earned the property legitimately. That can be a difficult task. Most of us don’t keep every pay stub, or have receipts for everything we own. Moreover, police and prosecutors no longer needed to even charge the owner with a crime, much less win a conviction in court. (In fact, in most forfeitures today, the property owner is never charged with a crime.) Worse yet, the proceeds from these seizures would then go back to the police who confiscated the property—and in some cases, the prosecutor offices as well. The federal government led the way with a number of onerous forfeiture laws in the 1980s, and most states followed the lead by passing similar laws of their own.

After a series of (entirely predictable) high-profile abuses began to come to light in the 1990s, momentum began to build to reform the laws. Congress passed some mild reforms about 15 years ago. Many states followed, including Utah. The 2000 voter initiative in Utah did a couple of important things. First, it required local authorities to pay the court costs of any property owner who successfully challenged a forfeiture in court. This was important because in many cases, the value of the property seized can be less than the cost of trying to win it back. Though forfeiture is often justified by citing the need to strip big-time drug dealers of their assets, that isn’t how it works in practice. An Institute for Justice (IJ) look at forfeiture in Georgia, for example, found that the median value of property seized in that state was just $647.

Another reform in the 2000 ballot measure required prosecutors to file promptly in forfeiture cases to prevent property from getting tied up in the system for months on end. (Property owners who miss filing deadlines typically lose their chance to win back what was taken from them.) Like many states, Utah also passed reforms requiring forfeited property to go to a schools fund or a general fund instead of back to the law enforcement agencies that seized it. The idea here is to remove the “policing for profit” incentive that can lead to corruption and unjust forfeitures.

But as the outrage died down, the reforms came under attack by police and prosecutors. In some states, like Indiana, prosecutors have simply ignored the rule, and found loopholes allowing them to keep the money for their own offices and for police departments. (Indiana prosecutors also have a particularly nasty tradition of contracting forfeiture cases out to private firms, who then get a cut of whatever they win in court.) In other states, like Utah, police agencies have entered into the Justice Department’s “equitable sharing” program. When a police agency hits on a case with forfeiture potential, they simply call up the DEA, ATF, or some other federal law enforcement agency. That agency then assigns an agent to play a cursory role in the investigation. The case is now federal, government by federal law. And under federal law, the feds take the forfeiture money, skim 20 percent or so off the top, then return the rest to the local police agency. It’s a handy end-around the will and intent of the state legislatures.

The Utah voter-backed initiative in 2000 included a provision that barred state police agencies from using equitable sharing to subvert the intent of the initiative — which was to put an end to the perverse incentives created when you allow police agencies to profit from forfeitures. But the Utah legislature unhooked that provision just four years later. As IJ”s Nick Sibilia writes at Forbes.com, the 2004 law had an immediate impact:

The year before it passed in FY 2000, Utah received $226,524 from the federal Asset Forfeiture Fund (AFF).  In FY 2002, that number plunged to $3,357.  The very next year, it was $0.

But after SB 175 rolled back Initiative B in 2004, equitable sharing proceeds soared. In FY 2008, the most recently available year, Utah police received over $1.5 million.

That brings us to today. The Libertas Institute—a libertarian think tank in Utah—now reports that Utah lawmakers recently quietly and unanimously passed a bill that will gut the provision to reimburse property owners who successfully win in court, and to require prosecutors to file forfeiture cases in a timely manner. Libertas also argues that it will make it easier yet for the state’s police agencies to participate in the equitable sharing program. (You can read the Utah Office of Attorney General’s response to the Libertas report here. Libertas then rebutted that response here.)

While the ballot measure instituting the reforms passed after much public discussion and debate, the changes gutting those reforms passed unanimously after only four minutes of discussion.  The changes could make things very difficult for innocent property owners. Prosecutors could now keep property tied up for months on end, unless the police have seized cash or property worth $10,000 or more, it will cost more to hire an attorney to get the property back than the property is worth.

One of the more popular application of forfeiture laws today is on the highways. Drug task forces pull over suspicious looking vehicles, bring in drug dogs (which often are no more accurate than a coin flip), seize any cash they find, then offer a devil’s bargain:  You can fight for your cash, at which point they’ll arrest you and charge you with a crime. Even if you’re innocent and the charges are dropped later, you’ll need to find an attorney. They’ll probably impound your car. You’ll spend a weekend in jail. And you’ll have an arrest record. The alternative: Sign your cash over to the cops. Give it up, and they’ll let you drive away.

The people hurt worst by these changes in Utah won’t be the drug kingpins. They’ll be innocent property owners who tend to carry a lot of cash—think immigrants who send remittances back home—and have the misfortune of driving on the wrong highway at the wrong time.

That these reforms were rolled back is bad enough. That the rollbacks were done with no public debate, and in direct contravention of the will of Utah voters (who passed the reforms with a 69 percent majority in 2000) is unconscionable. Asset forfeiture is one of the few drug war excesses that tends to get even law-and-order conservatives animated. In fact, most of the reforms in the early 2000s came after agitation from the right. (The federal law was reformed largely due to the efforts of the late Rep. Henry Hyde (R-Ill.).) In my series on Utah for the Huffington Post, I noted that some people may be surprised that a movement for reforming police militarization was emerging in one of the more conservative states in the country. But it may be even more surprising that the legislature of the same conservative state would quietly pass a bill as hostile to the rights of property owners as this one seems to be.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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