A very worthy civil forfeiture law
This has been a really weird legislative session.
On the one hand, there is the farce of an election “audit” Senate Republicans are conducting, or more precisely have contracted out to Trump conspiracy advocates to conduct. This has been offering up a daily dose of incompetence and malice.
On the other hand, back at the Legislature, there has been some interesting and important work being done, and often with surprisingly strong bipartisan support.
None is more surprising, and heartening, than the complete overhaul of the civil forfeiture laws recently passed and signed into law by Gov. Doug Ducey (House Bill 2810).
When racketeering and comparable laws were passed in the ’70s and ’80s, they were ostensibly a tool to combat organized crime organizations, such as the mafia.
Capturing connected crooks and putting them in jail, went the argument, was a whack-a-mole exercise. New recruits simply took the place of these put in the hoosegow, and those in the hoosegow wouldn’t be in there for long.
Instead, law enforcement had to be able to go after the crime syndicates’ resources. Hence the major expansion of the civil forfeiture process. If money or property could be argued to be tied to a suite of crimes, law enforcement could seize and keep it.
An actual criminal conviction didn’t need to be obtained. Indeed, there didn’t even have to be criminal charges filed.
It was a civil proceeding, and the process was stacked in favor of law enforcement claiming the assets. As a practical matter, those contesting the forfeiture had the burden of proving that the asset had no connection to criminal activity, or that the rightful owner had no knowledge, or any way of knowing, that they were being so used.
From the beginning, civil forfeiture was a massive violation of constitutional due process and property rights. But it was supposedly the tool to combat organized crime, so judges largely turned a blind eye.
Most states, including Arizona, allowed law enforcement to keep and use the proceeds from civil asset forfeitures. It became a funding source. And its use soon expanded well beyond large criminal organizations to any street crime to which it could arguably be applied.
According to research by the Institute
for Justice, half of forfeitures in Arizona are of currency, with a median value of $1,000. That’s not striking any kind of a blow against large criminal enterprises. The stories of innocent asset owners of modest means being caught up in a civil forfeiture nightmare finally reached political critical mass.
The Arizona reform, shepherded through by prime sponsor Rep. Travis Grantham (R-Gilbert), is comprehensive and fundamental.
The headline reform was to require a criminal conviction or plea before law enforcement can complete a civil asset forfeiture seizure.
Of equal consequence, however, are procedural reforms making it substantially easier for asset owners not involved in the alleged crime to get their property back more promptly. The burden will now rest, appropriately, on law enforcement to prove that the owner was complicit in the criminal activity or had direct knowledge of it.
In a last ditch effort to secure a veto, Maricopa County Attorney Allister Adel repeated the wheeze that this was a tool used to go after “drug cartels, human smuggling operations, and other organized criminal syndicates.” So thoroughly has actual experience discredited this pretense that there were only three dissenting votes against the bill in the entire Legislature.
Then, Adel went on to say something incredibly disingenuous. The bill, she told the governor, was “drafted by special interest lobbyists with little understanding of this area of the law.”
“Special interest” is usually a term denoting deep-pockets with a direct pecuniary interest in the outcome. In this case, the “special interests” are two libertarian-oriented nonprofits, the Institute for Justice and the Goldwater Institute.
Far from lacking an understanding of civil forfeiture, the Institute for Justice has done more to document its results throughout the country than anyone else. And both outfits offer pro bono representation to innocent victims seeking to recover seized property.
Goldwater is handling a case involving someone who let his girlfriend borrow his truck. While using it, she sold $25 worth of marijuana and got caught. Pima County law enforcement officials seized the truck and his tools that were in it, and are refusing to return them — even though they decided not to prosecute the girlfriend.
There is much about Arizona politics that is deeply distressing at the moment. That, in the midst of the miasma, there could be such strong, bipartisan action on so important and fundamental a matter, offers a ray of hope.