It isn’t often that Republican Rep. Bob Thorpe of Flagstaff finds himself agreeing with the American Civil Liberties Union.
But when it comes to cracking down on law enforcement agencies’ abuse of civil asset forfeiture laws, the conservative Republican finds himself squarely in line with the ACLU’s thinking. And that’s a little unsettling for Thorpe. The laws allow police and prosecutors to seize property of people accused of certain crimes and use the proceeds to benefit their departments.
“It’s kind of scary but they and I may be on the same page on this one,” Thorpe quipped.
Thorpe said comedian John Oliver first put the issue of civil forfeiture on his radar. Last October, Oliver ripped on civil forfeiture laws in a 16-minute segment on his HBO news comedy show “Last Week Tonight with John Oliver.”
The segment included stories from people who had their cash or other property seized by police for suspected involvement in a crime, although they were never actually charged or convicted of any crime.
After watching the segment and reading several other news investigations on the issue, Thorpe started preparing a bill to rein in the practice for the next legislative session.
The move comes as the ACLU of Arizona is launching a broad challenge to the civil asset forfeiture system with a suit against Pinal County Sheriff Paul Babeu and Pinal County Attorney Lando Voyles.
The complaint alleges civil forfeiture laws are unconstitutional on their face. It seeks a permanent injunction against Pinal County from employing forfeiture laws as long as the county’s law enforcement receives a direct financial benefit, among other demands.
The complaint was filed on behalf of a woman who loaned her truck to her son, who then put stolen parts on it and was caught by Pinal County Sheriffs. The ACLU attorneys argue that because the woman had no knowledge of her son’s actions or the stolen parts, she was entitled to get it back.
The ACLU suit states that civil asset forfeiture funds have been used for items such as Voyles’ personal home security system, personnel costs at the county attorney’s office including retirement contributions of employees, and even to support charities that Voyles backs.
In their suit, ACLU attorneys allege Pinal County police officers and prosecutors have become dependent on money raised from civil asset forfeiture, which creates “perverse incentives for law enforcement” to seize all sorts of property.
While the ACLU is focusing its attack in the courts, Thorpe is going on the offensive with legislation.
The bill Thorpe is planning would require property seized in connection with a crime to be returned within a reasonable period of time unless a court orders property to be held longer.
If a person is found guilty of a crime and their property seized permanently, the property would then be turned over to the state, instead of local law enforcement. The assets, however, would be put into a pot to be distributed equally to all law enforcement agencies in the state.
“The reason I want to do that is not because I’m looking for a windfall for the state, but I want to take away that incentive for police to see this as a piggy bank,” he said.
His legislation is rooted in the Fifth Amendment, which states no person shall be “deprived of live liberty or property, without due process of law.”
“Basically (with civil forfeiture), your property is guilty even if you’re not… And it’s extremely difficult to prove it innocent and actually get your property returned,” he said.
Thorpe predicted that police and prosecutors will vehemently oppose the legislation and that he is sticking his neck out on this issue. He said Republican Sen. John Kavanagh of Fountain Hills had already considered a bill to curb civil forfeiture abuses, and the senator warned him that the bill would be an uphill battle against police.
“But I’m not concerned about that. I feel that it’s an important enough issue that I want to do my best to get a bill passed,” he said.
Jim Mann, executive director of the Arizona Fraternal Order of Police, said Thorpe is probably right that he’ll have a fight on his hands if he wants to curtail civil asset forfeiture laws.
Mann said the laws are designed to ensure that criminal enterprises cannot keep the illegal fruits of their labor, and help law enforcement agencies cover the costs of investigation into and prosecution of criminal enterprises.
“Any time criminals are paying for their own prosecution, that’s a good thing,” he said.
Mann said he understands that there have been questions about the process and whether people whose property is seized have enough recourse under the law, but he thinks once lawmakers hear law enforcement agencies’ point of view, they’ll understand why the laws are necessary.
“I would welcome the opportunity to talk to folks about what really happens with the task forces that go after the big criminal enterprises. It may be a good opportunity to do that education with members of the Legislature,” he said.
Alessandra Soler, executive director of the ACLU Arizona, commended Thorpe for taking the first step in attempting to tighten the civil asset forfeiture laws.
But she said his initial draft proposal would still fall short of the ACLU’s aims because it allows government to seize property from people who have never been convicted of a crime.
She pointed to a law New Mexico approved this year that requires a person to be arrested for a crime before civil forfeiture laws apply and convicted of the offense by a criminal court. It also requires the state to establish by clear and convincing evidence that the property is subject to forfeiture.
Soler praised Thorpe’s attempt to ensure that those people who have their property seized have access to due process under the law. But she said due process needs to be clearly defined.
“The problem is whose version of due process are we talking about? The county attorneys in Pinal have their own version of due process that kind of turns the concept of innocent until proven guilty on its head,” she said.S