Government should not steal property

The following op-ed, written by our president Connor Boyack, was published today in the Deseret News.

Four years ago, prosecutors in the Utah Attorney General’s office conspired behind closed doors to deceive the Legislature into changing state law to facilitate taking property from people who have not been charged with, let alone convicted of, a crime.

And they got away with it. In the 2013 general session, prosecutors presented a 50+ page bill that its sponsor, Representative Brad Dee, falsely claimed to his colleagues to be nothing more than a technical reorganization of existing law. In fact, the bill contained numerous and substantive changes that eroded property rights and due process for those whose property had been taken by police.

Stealing from others is wrong—except, apparently, when it’s the government doing it.

The law permitting this practice is known as “civil asset forfeiture,” and differs from its criminal counterpart in that the state is not accusing a person of a crime—it’s accusing an asset, usually cash, of being somehow involved in a crime.

This leads to court cases like “The State of Utah vs. Five Hundred Dollars.” In such cases, you’re not the defendant. Instead, your property is presumed guilty unless you can prove it innocent.

A new report issued by the Utah Commission on Criminal and Juvenile Justice sheds some additional light on recent forfeiture cases. 393 such cases were tracked in the 2015 report, and a staggering 94% of them were done through this civil route, whereby it is easier for prosecutors to take the money and let the alleged criminal go free. 

One begins to question the priorities of prosecutors who appear to be more interested in cash than criminal justice.

The report also indicates that 97.5% of forfeitures—almost every single one—pertained to alleged narcotic offenses. Civil asset forfeiture has therefore become a major tool in the failed “war on drugs.”

And, contrary to what proponents of civil forfeiture claim, this tool isn’t used primarily to go after drug cartels and kingpins. The median value of property seized was $1,324; nearly three-quarters of forfeitures last year were under $5,000 in value.

And that’s precisely why the state can take the property so easily. Ask yourself: would you pay an attorney several thousands of dollars to recover 800 bucks? The answer is obviously no. That’s why, as the report notes, 61.3% of forfeiture cases were resolved through a “default judgment.” Nobody showed up to fight the forfeiture. With such a monumental disincentive, we shouldn’t be surprised.

A few months after prosecutors had deceived the legislature, Libertas Institute discovered the con and issued a public report. We proposed rolling back the changes to restore the due process protections in forfeiture law, but, sadly, we were strongly opposed by the very same prosecutors that had conspired to undermine them the previous year.

Nonetheless, and to their credit, legislators supported our proposal and restored what had been lost. The vote was unanimous—including, interestingly, Representative Brad Dee who had quarterbacked the deception bill in the previous legislative session.

But those changes didn’t go far enough. Indeed, Utah law continues to allow the government to take property from innocent people—both criminals who merely haven’t been charged and convicted, and also factually innocent people. 

That’s likely to change in January, when the legislature convenes again. Working together with legislators in both chambers and across the aisle, Libertas Institute has helped draft a bill that will put important restraints on forfeiture—most importantly, requiring prosecutors to criminally convict a person before taking ownership of their property.

This reasonable change has broad support. A poll conducted earlier this year  in Utah shows that 86% of Utah voters oppose prosecutors being able to take property from people not convicted of a crime. That high number spans both major parties and unaffiliated voters as well. Support for forfeiture reform is in the national platforms of both the Republican and Democrat parties.

Parents routinely teach their children both that stealing is bad and that they should respect the law. Civil forfeiture presents an uncomfortable conundrum for Utah families, as the law allows and enables the government to steal. 

It’s time for Utah to join several other states that have recently restricted forfeiture only to cases where the government has convicted a person of crime. Anything short of that standard is legalized theft.