Arizona's reform of forfeiture law was long overdue

This month, Gov. Doug Ducey signed into law a significant retooling of Arizona’s civil-forfeiture system, noting “reforms have been needed in this area for some time.” He’s right: In Arizona and across the U.S., lax civil-forfeiture laws have invited abuse and corruption. It is time to rein in the practice.

Civil forfeiture allows law enforcement to seize property they suspect was involved in criminal activity, resulting in a civil case against property, not people — meaning prosecutors never need to charge or convict someone of a crime.

Arizona law required only that property be shown to be forfeitable by a mere “preponderance of the evidence.” Owners, meanwhile, bear the burden of proving their own innocence.

In doing so, innocent property owners are forced to determine whether challenging a forfeiture is worth the expense. Lawyers are often more expensive than the value of what was taken, and Arizona law contained a rare provision threatening to slap property owners with the government’s legal fees if they challenged a forfeiture and failed.

While state law did all that was possible to discourage innocent people from fighting for their property, it simultaneously encouraged law-enforcement officials to seize and forfeit property — even in dubious cases — by providing the very agencies that take property with the unfettered ability to spend the resulting proceedings.

In a recent poll, 87 percent of Arizona voters signaled support for sweeping reforms to civil-forfeiture laws. It is hardly surprising that the bill won praise from a coalition of bipartisan organizations and nearly unanimous support in the Legislature.

Still, some groups opposed it. Arizona’s prosecutors, in particular, lobbied hard for a veto, and it is easy to see why: The new law strips law-enforcement agencies of the unaccountable control of forfeiture funds that they’ve long enjoyed. County boards of supervisors now have the final say in how these millions are spent.

Some prosecutors chafed at the notion of checks on their unbridled spending authority. Deputy Pima County Attorney Kathleen Mayer bemoaned “conflicts between a county attorney and the board of supervisors” that may prompt the board to veto “a perfectly legal request.” What Mayer derides as a hindrance, most simply call oversight.

Maricopa County Attorney Bill Montgomery took a different tack, claiming only “narrow minds” and “pretend conservative organizations” could support civil-forfeiture reform. The Heritage Foundation has been called many things in its 44 years, but a “pretend conservative organization” is not one of them.

There is nothing conservative in the idea that government agents should be able to forcibly seize property; forfeit it based on little, if any, evidence of wrongdoing; and then spend the resulting proceeds without transparency or accountability. Gov. Ducey and the Arizona Legislature deserve credit for cutting through these spurious arguments.

In addition to checks on forfeiture’s financial incentives, the new law raises the standard of proof in these cases to “clear and convincing evidence,” mandates stiff reporting requirements meant to bring transparency, and bars Arizona officials from transferring seized property valued at less than $75,000 to federal agencies for forfeiture under lax federal laws.

This “equitable sharing loophole” is a common tactic among agencies looking to circumvent state laws that protect property rights or restrict their ability to raise and spend revenues.

The point of forfeiture reform is not to prevent the arrest of criminals or hinder the seizure of property tied to illicit acts. It’s to afford legal protections to innocent people swept up in a forfeiture case — and hopefully keep them out of the forfeiture system altogether.

Jason Snead is a policy analyst in the Meese Center for Legal and Judicial Studies, Institute for Constitutional Government at the Heritage Foundation. Email him at Jason.Snead@ heritage.org; Twitter, @jasonwsnead.