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Asset Forfeiture

31 December 2003 Published in Legislative Work

Despite the Fifth Amendment’s assertion that no person "be deprived of . . . property, without due process of law," the Supreme Court ruled in 1974 that property could be seized and sold by the government without any arrest, conviction, or due process. Under the idea that property itself can be guilty, police may now take property without a conviction or an arrest, leaving the individual to prove the property has no connection to a crime.

Civil forfeiture became a popular tool in the unsuccessful war against drugs. The scheme inherently violates fundamental constitutional rights, including the right not to be deprived of property without due process of law and the right to be free from punishment that is disproportionate to the offense. The ACLU advocates for the abandonment of civil forfeiture, but also supports meaningful reform efforts, which would mitigate its harshness and incorporate equitable provisions and principles of due process.

The ACLU of Utah became engaged with the issue of asset forfeiture in 1999 when it began tracking legislation attempting to bring reforms to Utah’s controlled substance asset forfeiture provisions. The proposed legislation added an innocent property owner exception, so that law enforcement agents would be prohibited from seizing property used for illegal purposes without the property owner’s knowledge or consent. It also required that seized assets go directly to the General Fund of the state, rather than remain with the law enforcement agency involved. The bill died in committee.

During the fall of 1999, the ACLU of Utah worked with a broad coalition of legal and community advocacy groups to help craft and support Initiative B - Utah Uniform Forfeiture Procedures Act (UUFPA). This Act, passed by 69% of Utah’s voters in November 2000, included reforms suggested by the failed bill.

UUFPA protects innocent property owners by prohibiting forfeiture unless the government proves that the owner actually committed or consented to the crime. It provides property owners with an attorney if they are unable to afford one. And, while the court decides whether the property should be forfeited, the law allows people to keep their property if its loss creates an undue hardship and is necessary for such activities as running a family business, caring for children, or housing an elderly or disabled relative.

In addition, the law requires law enforcement agencies to track and audit forfeited property. UUFPA does away with incentives to abuse the forfeiture process by prohibiting law enforcement from keeping cash or incentives from the sale of forfeited property. Instead, the proceeds are supposed to be turned over to a special education fund, although a recent audit by the state of Utah showed that the majority of forfeitures in 2002 were not.

Before UUFPA, asset forfeiture laws allowed civil forfeiture actions to go forward without a criminal conviction. Because the proceeding was a civil matter, the person was not provided with the constitutional protections available to criminal defendants, such as the right to notice, a hearing, or an attorney.

Protection of Private Lawfully Obtained Property- SB 175 revises current Utah law initiated through the passage UUFPA and is scheduled to become law immediately unless Governor Walker vetoes it.

The bill is a step backward from some of the reforms begun by UUFPA. This bill removes the provision allowing legal forfeiture of assets only if a person is found guilty. While it does give the asset owner some avenues for compensation upon acquittal, it allows the property to be forfeited, returning to owners only a portion of the proceeds instead of their original property. This allows police the possibility of profiting from seized property, giving them a financial incentive to reduce or eliminate criminal charges in exchange for the accused not contesting the forfeiture of seized property.

Other arguments against this bill include:

  • Hardship release of property is prohibited if the property was misused prior to seizure, regardless of the owner’s involvement with or knowledge of the misuse.
  • Increased delay for a hardship release from 10 to 20 days, which can hurt small businesses.
  • Property may be sold prior to proof in a court of law that the property is subject to forfeiture.
  • The punishment may exceed the crime, because the forfeiture may be disproportional to the misuse of the property.

Nationally, there have been many instances when individuals have been the victims of an overzealous use of our civil forfeiture laws. If a person is carrying a large amount of cash, for example, it is assumed to be drug money and is therefore subject to forfeiture. In other cases, people lose their homes because, unbeknownst to them, their child, a visitor, or a renter is charged with drug dealing. Under civil asset forfeiture laws, the fundamental principle “innocent until proven guilty” is turned on its head, and property owners must hire an attorney to get their property back – even if they are never convicted of a crime. In contrast, those convicted under criminal statutes are afforded full constitutional and procedural protections. SB 175’s passage is a disappointing step backward in forfeiture laws.