It’s time to eliminate civil asset forfeiture

The following op-ed was published this weekend in the Deseret News.

Police and prosecutors have historically defended civil asset forfeiture—the taking of one’s property by the government without having to convict the property owner of committing a crime—by arguing that it’s necessary to disrupt cartels and large criminal enterprises. The data, however, reveal a different story.

Newly released data for 2018 forfeiture cases in Utah show that only 0.8% of cases involved cash in excess of $50,000—a reasonable threshold for large criminal activity. Even lowering that threshold to $10,000 means only 8.8% cases are above the amount.

In other words, forfeiture is typically utilized in Utah for low-dollar cases — and 98% of all forfeitures in Utah last year involved seizing cash. The median amount taken? A mere $1,731.

The simple economics of this situation highlight the problem: no one in their right mind would hire an attorney for several thousand dollars, or more, in order to try and reclaim such a small sum. It’s little wonder, then, that 64% of cases involved a default judgment, where the person didn’t even attempt to fight back.

To be clear, many of these cases do in fact involve criminals who should not keep their ill-gotten gains. 89% of cases had a criminal charge associated with the seizure, and 60% resulted in conviction. But that still leaves a profound number of Utahns in 2018—and every year—who are presumed innocent, yet their property is accused of guilt and taken from them.

86% of Utahns already agree that civil asset forfeiture should not occur. The Legislature has flirted with minor reforms in recent years, but it’s time to follow other states that have recently led the way, and eliminate civil asset forfeiture entirely.

This does not mean eliminating forfeiture—not at all. Criminal asset forfeiture would remain an option for any prosecutor to pursue, and since so many cases already involve an associated criminal charge, it’s not too much to ask that the forfeiture case be tied together with the criminal case. 

For years, prosecutors and police have unfortunately pushed back against reforming civil asset forfeiture. But it’s time to resolve things in a way where all sides can accomplish their goal and be satisfied.

Law enforcement wants criminals to be dispossessed of their instrumentalities and proceeds of crime. This is a praiseworthy goal—and it’s one that can be realized through criminal asset forfeiture. If Bob steals from a store and later sells these items, Bob can be convicted of burglary and the money he received from the sales can be forfeited, all in the same case. No civil asset forfeiture is needed.

And the conviction requirement can be waived in cases where there is no one to prosecute—say, for example, an alleged drug mule driving along I-80 who disclaims interest in the money that’s seized and claims it’s not his. If a person flees Utah or doesn’t assert any connection to the seized property, that property can be forfeited without a criminal conviction. 

But requiring the conviction as a general rule balances the other side of the equation: property rights and due process. Indeed, law enforcement has been quick to state in legislative hearings that they do not want to take property from innocent people. However, unless and until property owners are proven guilty and convicted, they are indeed presumed innocent. Utah’s forfeiture law should reflect that, so the aspirations expressed by law enforcement are realized.

In short, eliminating civil forfeiture, and utilizing criminal forfeiture instead, helps balance the interests of the public and law enforcement by letting innocent people keep their property and only taking it when the government has met its burden to convict the person of a crime.

Recent cases in the Utah Supreme Court and U.S. Supreme Court dealing with civil asset forfeiture have been unanimously decided against the government, and in favor of stronger protections for property owners. And several states have recently reformed their laws to eliminate civil asset forfeiture or require a criminal conviction as a prerequisite.

It is time for the beehive state to join them and resolve the issue once and for all. To both protect innocent Utahns and allow law enforcement to fight crime, civil asset forfeiture should be eliminated in favor of using criminal asset forfeiture instead.