By: Mike Maharrey
PHOENIX, Ariz. (Nov. 21, 2019) – A bill prefiled in the Arizona House would reform the state’s asset forfeiture laws to prohibit the state from taking a person’s property without a criminal conviction in most situations. The proposed legislation would build on important reforms signed into law in 2017.
Rep. John Fillmore (R-Apache Junction) prefiled House Bill 2032 (HB2032) on Nov. 19. Under the proposed law, Arizona prosecutors would not be able to proceed with the asset forfeiture process without a criminal conviction.
An AZCIR analysis in 2017 found that Arizona agencies seized nearly $200 million in property between 2011 and 2015 from people who may never have been charged or convicted of a crime.
In 2017, Gov. Doug Ducey signed a bill into law that enacted modest reforms to the state’s forfeiture laws and closed a loophole that enabled prosecutors to circumvent state laws by passing cases off to the feds. HB2032 would build on the foundation set in that law and further reform the state’s asset forfeiture process.
In 2017, the legislature increased the evidentiary standard necessary for the state to win a forfeiture case. It also took a big step toward closing a loophole that allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. This is particularly important in light of a policy directive issued in July 2017 by then-Attorney General Jeff Sessions for the Department of Justice (DOJ).
FEDERAL LOOPHOLE
A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. The DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.
Law enforcement agencies can circumvent more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.
Until recently, California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.
According to an Institute for Justice report, Arizona has been one of the worst offenders of this program:
Arizona law enforcement’s use of the Department of Justice’s equitable sharing program results in a ranking of 32nd nationally. In calendar years 2000 to 2013, Arizona law enforcement agencies received nearly $70 million in DOJ equitable sharing proceeds, averaging just under $5 million per year.
The 2017 reforms effectively close this loophole. The law reads in part:
The seizing agency or the attorney for the state may not enter into any agreement to transfer or refer seized property to a federal agency for the purpose of forfeiture if the property was seized pursuant to an investigation that either:
1. Did not involve a federal agency.
2. Involves a violation of a state law and no violation of a federal law is alleged.
Property that is seized in a joint investigation may not be transferred or referred to a federal agency for the purpose of forfeiture unless the gross estimated value of the seized property is more than seventy‑five thousand dollars.
Reporting in some areas has revealed that 85 percent of seizures received by law enforcement agencies through the federal equitable sharing program did not meet a $50,000 threshold. Supporters view the aw’s higher requirement as significant.
“While we’d like to see Arizona and every other state completely opt-out of this federal program, an 80-85 percent reduction in seizures through this federal scheme is a huge step forward to nullify it in practice and effect,” Tenth Amendment Center executive director Michael Boldin said.
Requiring a criminal conviction is the next logical step. With the federal loophole closed, the passage of HB2032 would make it virtually impossible for police to take a person’s assets without first establishing their guilt.
OPPOSITION
HB2032 will likely face stiff opposition from law enforcement lobbyists. This was the case for the more modest reforms. Activists obtained letters sent to representatives from at least three police departments opposing the 2017 bill. (click here to read the documents)
Grassroots activists in the state, including Arizona Tenth Amendment Center volunteers Joel Alcott and Michael Gibbs, put in long hours opposing law enforcement lobbying efforts and nursing the 2017 reforms through the process. Boldin called the grassroots efforts “a difference-maker.”
“The law enforcement lobby in Arizona is extremely powerful. I believe the volunteers and activists on the ground in Arizona were the difference between this billing passing and failing. There were a couple of times it looked dead. I can’t praise them enough for what they pulled off. It goes to show just how effective grassroots activism is at the state level.”
WHAT’S NEXT
HB2032 will be officially introduced and referred to a committee when the Arizona legislature convenes for its 2020 session in January.
Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center.He proudly resides in the original home of the Principles of ’98 – Kentucky.See his blog archive here and his article archive here.He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE