By Jenna Bentley and Paul Avelar
In America, you are innocent until proven guilty, and you have the right to due process of law before the government takes your property. But in Arizona, these constitutional guarantees are turned upside-down by civil asset forfeiture, which allows law enforcement to take private property from a person without them ever being charged with, much less convicted of, any crime. Now, Arizona has an opportunity to reform this devastating law while continuing to ensure public safety.
Luis Garcia of Mesa is just one example of an innocent Arizonan who suffered the consequences of the state’s unjust civil forfeiture laws. One day, Scottsdale police raided Luis’s home and took $5,300 that he had collected for a charity youth soccer tournament. Even though neither Luis nor the cash were suspected in connection to any wrongdoing, police used civil forfeiture to confiscate the money based on an investigation into Luis’s adult son. Almost a year later, police still had not given the money back. In the meantime, Luis took out two title loans on his cars so the charity tournament could go on. Unfortunately, by the time the money was returned, Luis had lost both his vehicles to the title loans.
While many states are reforming their forfeiture laws to better protect the public and prevent the kind of injustice that Luis suffered, Arizona still has some of the worst forfeiture laws in the nation, scoring a D- in the Institute for Justice’s most recent study of forfeiture laws nationwide. Here’s why: Arizona law says that when government wants to forfeit some’s home, car, cash, or other property, an owner has to prove their own innocence in order to keep their property. Worse yet, the agencies involved get to keep everything they forfeit, giving them an incentive to forfeit everything for their own profit. They then spend this money on their own salaries and equipment.
Originally, forfeiture was created in the name of going after organized crime and drug cartels, but that is not how it is being used. In the last two years, more than half of all cash forfeitures were for less than $1,000. These small amounts show that law enforcement is not targeting “cartels.” And these small amounts mean even innocent people cannot afford to fight back.
Arizona House Bill 2810 adopts a number of commonsense reforms to protect due process rights that have already been adopted in other states. It requires that police obtain a conviction prior to a person’s property being forfeited. It shifts the burden to law enforcement to show that an owner is not innocent. It ensures everyone can get a timely judicial hearing to get their property back. And it prohibits “waivers” that law enforcement use to coerce people in to giving up their rights.
Given forfeiture’s threat to due process and property rights, there has been bipartisan support for reform in Arizona for two years. Opposition comes from some members of law enforcement, the very people that profit from these laws. They claim that requiring a criminal conviction prior to taking a person’s property will prevent them from fighting cartels. Recently, some called for an amendment to remove the requirement of a criminal conviction in cases of currency transfer, limiting the need of conviction only to real property. But under that formulation of the law, an innocent person like Luis would still suffer.
Forfeiture has nothing do with fighting crime. As of this year, 17 states now require a conviction before law enforcement can take your property under civil asset forfeiture, and that number is likely to grow in the next few years. After New Mexico abolished civil forfeiture six years ago—all forfeitures require a criminal conviction—there was no increase in crime. What’s more, studies show that increased use of forfeitures does not help police solve more crimes or reduce drug use. Perversely, increases in forfeiture proceeds are associated with fewer violent crimes solved. The promise of revenue may entice police to spend fewer resources on violent crimes, and more on crimes more likely to lead to forfeiture.
HB 2810 still allows law enforcement to stop cartels while also protecting private property and due process rights. We urge the Arizona House and Governor to support HB 2810 in its current form and to give Arizonans the protections they deserve, while still allowing police to stop cartels.
Paul Avelar is the Managing Attorney of the Institute for Justice Arizona Office. Jenna Bentley is the Director of Government Affairs for the Goldwater Institute.