NICK SIBILLA, INSTITUTE FOR JUSTICE
Today [April 12], Arizona Governor Doug Ducey signed bipartisan legislation to meaningfully reform Arizona civil forfeiture laws. Under civil forfeiture, law enforcement agencies can seize property merely suspected of involvement in criminal activity. Unlike criminal forfeiture, civil forfeiture allows the government to permanently keep property without charging anyone with—let alone convicting them of—a crime. And Arizona law allows the seizing agencies to keep up to 100 percent of the proceeds from forfeited property.
“Arizona’s civil forfeiture maze is the greatest threat to property rights and due process today,” explained Institute for Justice Senior Attorney Paul Avelar. “HB 2477 makes incremental but important reforms to Arizona’s forfeiture laws to protect innocent property owners and ensure that government powers are not abused.”
Sponsored by Rep. Eddie Farnsworth, HB 2477 overwhelmingly passed both the Arizona House and Senate—only one law maker ever voted against the reforms. Highlighting the broad popularity of reform, HB 2477 drew support from a wide variety of groups, including the Institute for Justice, the Goldwater Institute, Arizona Free Enterprise Club, Arizona Citizens Defense League, ACLU of Arizona, Arizona Attorneys for Criminal Justice, Los Abogados, Public Integrity Alliance, the Tenth Amendment Center, National Federation of Independent Business, Right on Crime, FreedomWorks, and U.S. Justice Action Network. One recent poll showed that 87% of Arizonans also supported forfeiture reform.
The Governor’s signature comes less than two weeks after the Inspector General at the Department of Justice and the Treasury Inspector General for Tax Administration released bombshell reports criticizing the federal government’s forfeiture practices.
In order to improve the state’s forfeiture laws, HB 2477 would:
- Implement new oversight for forfeiture spending. Law enforcement agencies must submit a request for RICO funds to the county attorney, which in turn would be approved or rejected by the county board of supervisors. In Arizona, over 28 percent of all forfeiture expenditures have gone towards “administrative expenses,” which includes salaries, benefits and overtime.
- Close a forfeiture loophole in federal law by banning Arizona law enforcement from transferring or referring seized property to a federal agency, unless the property is valued at over $75,000.
- Raise the standard of proof in civil forfeiture proceedings from “preponderance of the evidence” (i.e. more likely than not) to “clear and convincing.”
- Implement new transparency requirements, obliging agencies to report the value, type and date of a property seizure, if any criminal charges were filed, and the final disposition of the seized property.
- Require checks on agency spending of forfeiture funds and require an audit for forfeiture expenditures made by the Attorney General’s office.
- Repeal Arizona’s unique “reverse” attorneys’ fee provisions and instead allow property owners, and not the government, to recoup fees if they prevail.
However, an IJ lawsuit filed against Arizona’s forfeiture system will continue. In Arizona, owners have only 30 days to either petition the prosecutor to reconsider the forfeiture or ask permission to go to court to fight back. But this process requires owners to file a sophisticated legal document—often without the benefit of a lawyer. If they miss the 30-day window or mess up the document, they lose their property forever. And most of the time, it is the prosecutor—not a judge—who decides what to give back and what to keep. From 2000 to 2014, Arizona agencies collected $412 million in forfeiture revenue, or more than $27 million each year on average.
“Arizona has some of the worst civil forfeiture laws in the nation, and we applaud the Arizona Governor and Legislature for curbing many abusive practices,” noted IJ Attorney Keith Diggs. “But we will keep fighting until Arizona’s rigged system is completely abolished, once and for all.”
Civil forfeiture has sparked a firestorm of controversy in recent years, earning criticism from figures and organizations as diverse as John Oliver, 100 different editorial boards, both the Democratic and Republican Party platforms and U.S. Supreme Court Justice Clarence Thomas. Nationwide, Arizona now joins 19 other states and Washington, D.C. that have tightened their forfeiture laws. Further legislative efforts are currently pending in about 15 states.
Nick Sibilla is a Communications Associate for the Institute for Justice and also a contributor to Forbes.com, where he covers civil forfeiture, occupational licensing, food freedom and the First Amendment. Mr. Sibilla’s work has also appeared in The Wall Street Journal, Barron’s, The Guardian, The Washington Post, Slate, Reason, FoxNews.com, National Review, and has been cited by several law review journals, the Center for American Progress, the Heritage Foundation, CNBC, The Economist, SCOTUSblog and the Council of the District of Columbia Committee on the Judiciary and Public Safety.
Used with the permission of the Institute for Justice.