PHOENIX, Ariz. (May 30, 2020) – The Arizona House voted down a bill to reform the state’s asset forfeiture laws and prohibit the state from taking a person’s property without a criminal conviction. The proposed legislation would have built on important reforms signed into law in 2017.
Sen. Eddie Farnsworth (R-Mesa) introduced Senate Bill 1556 (SB1556) on Feb. 4. The legislation would have reformed the state’s asset forfeiture laws to require a conviction before the prosecutors could begin forfeiture proceedings in most cases. The bill also included provisions that would increase protections for property owners involved in the forfeiture process.
Arizona has some of the most onerous civil asset forfeiture laws in the country. Although prosecutors claim that drug kingpins and white-collar criminals are their primary targets, three-quarters of forfeiture cases involve property valued at less than $10,000. Originally intended to counter organized racketeering, the process of bringing civil charges against property rather than criminal charges against humans has proven very lucrative for law enforcement. This is largely due to the ease with which seizures can be carried out since property has no civil rights and the standards for evidence are much lower in non-criminal actions. Accuse a piece of property of involvement in a crime and it can be taken, sold, and the money used for just about any purpose. Property owners are often unwilling or unable to petition for its return due to the expense and effort involved.
For years, various groups have worked to add protections against unreasonable seizures, political corruption, and prosecutorial indiscretion but have faced strong opposition from prosecutors and other law-enforcement officials. The most significant progress towards reforming forfeiture law in the state was made in 2017 when house bill 2477 was enacted into law.
Introduced by then-representative Eddie Farnsworth, HB 2477 required detailed reporting of collections, allocations, and the purpose for each use of funds taken, and placed oversight of each county’s forfeiture operations with the board of supervisors rather than prosecutors. The idea was to shed some light on the massive scale of assets being seized in the state and to remove the conflict of interest prosecutors had to enhance their budgets at the expense of private citizens. Its biggest weakness, supporters say, was that there was still no requirement for a conviction in order to seize property, so forfeitures could be processed even when the state could not prove a crime had been committed by the property owner.
This year, Senator Farnsworth introduced an even stronger reform measure in SB1556. Along with requiring a criminal conviction, the 2020 bill included provisions to eliminate administrative forfeiture thus forcing cases to be instead handled by the judicial system, and provided for a prompt, post-seizure hearing for property owners to challenge a seizure without waiting for the criminal trial or forfeiture proceeding to complete.
Farnsworth blames the failure of the bill to pass the House on Arizona Attorney General Mark Brnovich. Despite warnings three years ago to prepare for further restrictions on seizures, Brnovich and other prosecutors waited until this year to raise objections and have gone on collecting and spending in the meantime.
Ryan Anderson, a representative from Brnovich’s office, said the attorney general does not object, in principle, to linking property seizures to criminal convictions, but said that the bill had “technical problems,” as written. The AG’s office argued that Farnsworth was using the severely COVID-restricted legislative session to ram-through poorly constructed policy.
The biggest points of contention related to a provision regarding the presentation to judges of “clear and convincing evidence,” the property was tied to a crime and the ability of prosecutors to obtain liens against property the state wishes to seize. “Clear and convincing,” evidence is a higher bar than the “preponderance of evidence” standard currently required.
Anderson worries that white-collar criminals will simply dispose of their assets before law enforcement is able to get a conviction. Farnsworth counters that prosecutors merely have to place a lien on the suspect property to prevent that.
It wasn’t just prosecutors who opposed Farnsworth’s efforts. Representative David Cook, Republican from Globe, claims “The counties that I represent are not using [asset forfeiture] for a cash cow.” He pointed out that county attorneys have discretion to decide when to seize property—something that Farnsworth objects to.
Representative Bob Thorpe, a stalwart supporter of forfeiture reform efforts, surprised many by opposing Farnsworth’s bill. Thorpe was not specific in his criticism, saying only that the bill, “needs additional work.”
Support for the measure within the legislature came from both sides of the aisle, however. Representative Kirsten Engel, Democrat from Tucson, said that her colleagues understand and support the need for reform but lamented that the legislation was pushed through the house too quickly for a proper review.
“We’re not going to shove this through without checking it out,” she said.
But that’s something a COVID-driven, early sine die (adjournment) of the legislature made impossible.
The news isn’t all bad in Arizona. The 2017 reforms took a big step toward closing a loophole that allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. This is particularly important in light of a policy directive issued in July 2017 by then-Attorney General Jeff Sessions for the Department of Justice (DOJ).
A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. The DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.
Law enforcement agencies can circumvent more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.
Until recently, California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.
According to an Institute for Justice report, Arizona has been one of the worst offenders of this program:
Arizona law enforcement’s use of the Department of Justice’s equitable sharing program results in a ranking of 32nd nationally. In calendar years 2000 to 2013, Arizona law enforcement agencies received nearly $70 million in DOJ equitable sharing proceeds, averaging just under $5 million per year.
The 2017 reforms effectively closed this loophole. The law reads in part:
The seizing agency or the attorney for the state may not enter into any agreement to transfer or refer seized property to a federal agency for the purpose of forfeiture if the property was seized pursuant to an investigation that either:
1. Did not involve a federal agency.
2. Involves a violation of a state law and no violation of a federal law is alleged.
Property that is seized in a joint investigation may not be transferred or referred to a federal agency for the purpose of forfeiture unless the gross estimated value of the seized property is more than seventy‑five thousand dollars.
Reporting in some areas has revealed that 85 percent of seizures received by law enforcement agencies through the federal equitable sharing program did not meet a $50,000 threshold. Supporters view the law’s higher requirement as significant.
“While we’d like to see Arizona and every other state completely opt-out of this federal program, an 80-85 percent reduction in seizures through this federal scheme is a huge step forward to nullify it in practice and effect,” Tenth Amendment Center executive director Michael Boldin said.
Requiring a criminal conviction is the next logical step. With the federal loophole closed, the passage of SB1556 would make it virtually impossible for police to take a person’s assets without first establishing their guilt.
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