SALT LAKE CITY, Utah (March 17, 2021) – Yesterday, Gov. Spencer Cox signed a bill into law that reforms the state’s asset forfeiture laws and opts the state out of the federal “equitable sharing” program.
Sen. Todd Weiler (R) introduced Senate Bill 98 (SB98) on Jan. 19. The new law makes several positive changes to Utah’s asset forfeiture process and clarifies ambiguity in the current law. It also includes important provisions that will opt Utah out of a federal asset forfeiture program in most cases. 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) that remains in effect today.
In 2000, Utah voters overwhelmingly passed “Initiative B” to limit the ability of the state government to take property. According to the Libertas Institute, “Law enforcement officials then immediately sought to undermine the law and re-introduce the ability to obtain a part of the resulting proceeds from the confiscated property.”
“In 2013, law enforcement crafted legislation that gutted several private property and due process protections in forfeiture law and then stood by silently—and knowingly—while the legislature was misled into believing that the lengthy change to forfeiture law was only technical and superficial, as opposed to substantive.”
SB98 makes numerous changes that will clarify current law and make changes to several provisions in order to restore the intent of the voters who passed Initiative B. As Libertas puts it, the legislation “Cleans up and clarifies forfeiture law in response to the Court’s criticism that the existing statute was ‘not a model of clarity.’”
“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 new 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 often bypass 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.
SB98 closes the loophole in Utah by prohibiting a peace officer, agency, or prosecuting attorney from directly or indirectly transferring or releasing property seized under the law to a federal agency or to a governmental entity not created or subject to the laws of this state. The language does allow the transfer of cases to the federal government under a few specifically defined situations, but will ban the process in the vast majority of cases.
As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.
We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.
While some people believe the Supreme Court “ended asset forfeiture, its opinion in Timbs v. Indiana ended nothing. Without further action, civil asset forfeiture remains. Additionally, as law professor Ilya Somin noted, the Court left an important issue unresolved. What exactly counts as “excessive” in the civil forfeiture context?
“That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal.”
Going forward, opponents of civil asset forfeiture could wait and see how lower federal courts will address this “over the next few years,” or they can do what a number of states have already taken steps to do, end the practice on a state level, and opt out of the federal equitable sharing program as well.
SB98 will go into effect as law on May 5, 2021.