Legalized theft needs statewide reform

The following op-ed, written by our policy analyst Josh Daniels, was published this week in the Deseret News.

Did you know that the government can legally steal your property without charging you with — let alone convicting you of — a crime? If you didn’t, you’re in a comfortable majority; according to a new poll of 565 Utah voters, conducted last week by Public Policy Polling, 77 percent of Utah voters are unaware of this legal tool called civil asset forfeiture.

Asset forfeiture allows government agents to seize, and permanently retain, items of value they suspect were involved in criminal activity. In these cases, you are not the defendant — your property is, thus leading to court cases such as Salt Lake City v. $20,000 cash. And unlike a criminal case, where you are presumed to be innocent until proven guilty, a civil asset forfeiture case finds your property guilty at the outset. You can recover it only if you prove its innocence — its lack of involvement in the alleged criminal conduct.

Civil asset forfeiture laws in this country, originally aimed at fighting organized crime and the drug trade, routinely ensnare innocent owners who are stopped at the wrong place at the wrong time. Unfortunately, it is often the unbanked and underprivileged — those who use and carry cash and those who live or work in high crime areas — who are most susceptible to being caught up in civil forfeiture and subjected to the legal theft of their property.

Individuals with the least resources and access to justice are unable to effectively fight such seizures. If $3,000 in cash is seized by the police, to be forfeited by the prosecutor, an innocent owner is unlikely to contest the legal theft if hiring an attorney would exceed the amount they could recover. This effectively creates a threshold under which property can be taken by the government without a fight. Unsurprisingly, then, the data shows that in 2015, 74 percent of all forfeiture cases statewide were under $5,000.

While the Utah Legislature debated a proposal this year to reform civil asset forfeiture laws and build additional protections for innocent owners, the bill faced significant opposition from government agencies that conduct (and financially benefit from) forfeiture. These legislative discussions usually pit property rights advocates against the government agents who conduct civil forfeitures, while the voice of everyday Utahns is absent.

In 2000, Utahns passed a statewide ballot initiative securing significant protections for property owners against forfeiture. However, since that time, the Legislature has on several occasions eroded the legal protections enacted into law by Utah voters, making forfeitures easier for the government.

But Utahns have not forgotten their support for property rights. The poll referenced above shows that Utahns overwhelmingly oppose the government’s power to seize and keep private property under civil asset forfeiture laws. According to the poll, 86 percent of Utah voters believe that the government “should not be able seize and permanently take away property from people who have not been charged with a crime.” And yet, this is precisely what Utah’s current civil asset forfeiture laws permit. Your car, cash, computer or other property can be taken by the government even if you are completely innocent of committing any crime.

The laws of most states and the federal government, in fact, permit police to seize property in this way. While Utah’s law is in need of further reform, this is very much a national issue that deserves greater attention by elected officials, as well as those aspiring to win the presidency this fall. Sixty-six percent of polled Utah voters said they would be more likely to support a candidate for president who took a position in favor of requiring a criminal conviction before property can be seized.

This year’s failed legislative reforms, sponsored by Rep. Brian Greene, would have required the government to prove a criminal connection or “nexus” between the property and the alleged criminal conduct of an individual. In other words, it would have confined the seizure of property to cases where the alleged suspect was charged — and if found innocent, the property would be returned.

Due process exists for a very important purpose and is designed to protect us all from overreach; because people are not perfect, neither is the government. The extraordinary power for government to seize our property must be carefully limited to actual criminal activity, ensuring that innocent owners are protected throughout. We can do better. We must do better. Utahns expect and demand it.