State lawmakers are moving to erect new hurdles to protect individuals from having their property seized by the state.
SB1556 would end the ability of prosecutors to be able to take property simply by convincing a judge that it is connected to criminal activity. Instead, they would have to actually first convict someone of a crime.
The 6-4 vote May 20 by the House Judiciary Committee came over the objections of prosecutors who argued that it would impair their ability to protect Arizonans from criminal activity.But Sen. Eddie Farnsworth, R-Gilbert, who crafted the change, said their real objection is that the current law allows prosecutors – and the police agencies involved in the case – to keep what they seize.
Rep. Diego Rodriguez, D-Phoenix, said this is about more than prosecutors and police. Rodriguez, who is a criminal defense attorney, said that counties also fund public defenders through the cash they get. Removing the revenue stream, he said, leaves supervisors with the dilemma of whether they fund those services.
Farnsworth did not deny that limiting seizures is likely to affect county budgets. But he said that does not make it right, saying counties never should have been put in a position where their programs are financed through this method.
“The taking of property without a conviction on the criminal side is reprehensible to me,” Farnsworth said.
“It is contrary to everything we believe in this country,” he said. “It’s contrary to due process, it’s contrary to the concept of fairness.”
And if money is an issue, Farnsworth said, the Legislature can deal with that next year.
The problem, he said, is that the law has been abused.
He said it was originally designed to go after drug kingpins and organized crime, allowing police and prosecutors to deny them the assets they needed.
But Paul Avelar, an attorney with the Institute for Justice, told lawmakers that isn’t the way it is working out.
He said that the most recent figures show that 77% of all forfeiture cases were for amounts of less than $10,000. And more than half of forfeitures were accomplished without first getting a criminal conviction.
“What we’re concerned about are the people that are losing their life savings, their cars, their homes, without a criminal conviction, without ever having to be convicted or sometimes even being charged with a crime,” Avelar said.
Farnsworth said this can take many forms.
For example, he said, a woman may lend her van to her grandson. He gets stopped by police who find a small quantity of marijuana in the vehicle.
Farnsworth said the woman, who has never been charged with anything, can get the van back. But it will cost her upwards of $10,000 in legal fees for a vehicle that may not be worth that much.
Megan Kintner, who lobbies on behalf of the Arizona Association of Counties, said the prosecutors and sheriffs she represents have problems with the way the measure is worded.
For example, she said, prosecutors may be trying to build a case against a massage parlor that they believe is involved in sex trafficking. But the parlor and its property is in the name of some shell company, making it difficult to actually bring criminal charges against anyone. And that, in turns, thwarts efforts to seize the business.
Farnsworth said that’s not a realistic objection.
“Somebody has to own the property,” he said. And, if nothing else, Farnsworth said criminal charges can be brought against the company.
“There are abuses out there,” said Rep. Kirsten Engel, D-Tucson.
Engel said, though, she could not support such a change without also finding a way to ensure that counties have the money they need. She said the state is in no position to do that now, partly because it already has adopted a budget for the coming fiscal year and partly because the COVID-19 pandemic is going to slash anticipated state revenues by $1 billion or more.
But Rep. Mark Finchem, R-Oro Valley, said it isn’t the role of the Legislature to protect government agencies.
“We’re here to protect the civil rights of the people who elected us,” he said.
Rep. John Allen, R-Scottsdale, said the forfeiture laws “helped us get rid of some very awful criminal organizations.” And he said nothing in this bill changes that.
“We’re just taking away the incentives to use this as a funding tool,” Allen said.
The measure, which already has been approved by the Senate, now goes to the full House.
This is actually the second set of reforms that Farnsworth had proposed to the process.
Prior to 2017, prosecutors could seize property simply by showing there was a “preponderance of the evidence” that it has been used in a crime. That is the lowest of all judicial standards and means only that it is more likely than not the property is linked to criminal activity.
That 2017 law Farnsworth sponsored and got Gov. Doug Ducey to sign raised it to the current “clear and convincing evidence.”
It also removed some disincentive that had existed for people who contend their property was wrongfully seized from challenging the government.
Until 2017, current property owners were responsible for their own legal fees, even if they win in court.
That change also eliminated the possibility that a property owner who fights forfeiture and loses could be on the hook for the government’s costs and legal fees.