Police normally target lawbreakers, but innocence did not help Terry and Ria Platt when the Navajo County Drug Task Force seized their 2012 Volkswagen Jetta on Interstate 40 near Holbrook.
Officers found a small amount of personal use marijuana in the vehicle, along with cash and drug paraphernalia, but the Platts had nothing to do with that. They had loaned the vehicle to their adult son, who acknowledged ownership of the contraband. The parents were more than 1,000 miles away at their home in Prosser, Wash., at the time of the incident.
Unfortunately for them, Arizona law allows local and state agencies to seize and keep assets without worrying about formalities like criminal convictions. Property owners can lose cash, cars and other valuables without ever facing charges or arrest through a process called civil forfeiture.
Policing for Profit, a nationwide report released Dec. 14 from the nonprofit Institute for Justice, finds particular problems with civil forfeiture in Arizona. The Platts learned about the moneymaking scheme the hard way.
The retired couple could not afford an attorney, so they did their best to navigate Arizona’s confusing laws on their own. They read the fine print, filed a petition to get their car back within the allotted 30-day window, and submitted 29 pages of supporting documents.
They met every legal requirement, but they did not include the words “under penalty of perjury” with their signatures. As a result of the missing four words, prosecutors moved to prevent the Platts from ever receiving a court hearing.
Arizona law gives prosecutors wide latitude to make such decisions, which is not surprising considering who wrote the relevant statutes. County attorneys and an assistant state attorney general drafted the one-sided legislation, sponsored by the Arizona Prosecuting Attorneys’ Advisory Council, and pushed it through the state Legislature in 1986.
Since then, police and prosecutors have resisted reform. Most recently in March, they fought to kill Senate Bill 1556, which would have demanded a criminal conviction before the government could take title to someone’s property.
Unable to wait for the chance of legislative reform, the Platts partnered with the Institute for Justice and sued Navajo County in 2016. Police and prosecutors responded by returning the vehicle. Now, the Platts are asking the 9th U.S. Circuit Court of Appeals to overthrow the rules that allow forfeiture without a hearing.
Procedural barriers to the courtroom represent just one problem in Arizona. The Institute for Justice report, the largest collection of forfeiture data ever assembled, uses 17 million data points to rank state and federal forfeiture laws. Specifically, the report examines the standard of proof the government must meet to forfeit assets, the protections provided to innocent property owners, and the share of revenue that flows to law enforcement.
New Mexico, which abolished civil forfeiture and passed other reforms in 2015, received the only A on the nationwide report card. Arizona earned a D minus, the same grade the state received in 2015—the last time the Institute for Justice collected data.
Overall, Arizona agencies claimed $26.7 million in 2019 and $643 million since 2000 through forfeiture. At least 93% of the time, these cases proceeded in civil rather than criminal court, which meant lower standards of proof for the government.
The process works like a one-two punch. Police seize assets during traffic stops or other public interactions, and then prosecutors play keep-away in litigation. Given the small amounts at issue in most forfeitures—typically less than it takes to hire an attorney—the costs to mount a defense are generally not worth it.
Not surprisingly, 81% of property owners in Arizona never fight back following seizure. Once the process ends, state law allows police and prosecutors to keep 100% of what they take for themselves. The result is a direct financial incentive for aggressive use of forfeiture against even the innocent.
Fixing the rigged system will require bold action. Arizona lawmakers could start by reviving and passing SB-1556 in 2021. Adopting New Mexico’s model legislation would be even better.
Police who patrol Arizona communities should focus on criminals, not cash. Current laws encourage the reverse, making everyone a potential ATM for cash-strapped agencies.
Daryl James is a writer at the nonprofit Institute for Justice in Arlington, Va.