Few topics of conversation raise the ire of Americans more than that of asset forfeiture laws. They exist in both the state and federal governments, and are contrary to the spirit and founding principles of our country.
They came about to solve a problem. The problem was that big organized crime figures may get caught, tried and convicted, but so what? With enough money for the best lawyers, they would do a little time then go back to their mansions, car collections, etc. It did not seem right. So, civil statutes that would relieve them of their ill-gotten gains and turn those gains over to law enforcement were passed by enthusiastic legislators. Brilliant! Or so it seemed.
These are civil, not criminal, laws. As such, there is no grand jury indictment, innocent until proven guilty, face the accuser, or beyond a reasonable doubt standard, or any of that pesky stuff that makes it hard for the good guys. In fact, in most jurisdictions in America today, the government can take the money in your bank, your cash, your car, and even your house without ever charging you with a crime. Know that we are in America, and contemplate that.
If you think that nobody should have their assets seized before being convicted of a crime, you are not alone. According to a Cato/YouGov survey, 84 percent of Americans agree with you. Here is a real life example: police found a safe with around $200,000 and a bill of sale for a house in the car of a motorist traveling on a Texas roadway frequented by drug dealers. Apparently, this was fishy enough to seize the money and keep it. No charges were filed.
The problem with creating a pile of money for law enforcement is that it creates an incentive for abuse among prosecutors and law enforcement officers. It is a subtle shift from pursuing crime to pursuing assets. It creates an income stream that tends to get developed.
There is also a temptation to divert money away from intended uses. We need not look far for an example. Recently, Christopher Radtke of the Pima County Sheriff’s department was indicted on seven felonies related to an embezzlement scheme that involved around $500,000 from 2011 to 2016.
Fortunately, Rep. Eddie Farnsworth, R-Gilbert, is sponsoring HB 2477, a bill that will make Arizona’s law much less onerous. It does not go nearly far enough, but it does raise the evidentiary standard from “preponderance of evidence” to “clear and convincing evidence” making it a little harder for the good guys. Alas, making it harder for the good guys is one of the ways we keep them from becoming the bad guys. The rest of the bill appears to deal with keeping records, with lots of paper trails. This putting of eyes on each and every case will not only protect individuals, but may help build a case for further tightening down the road, or even repeal.
Is this sort of short-circuiting the “due process of law” that these laws provide acceptable? “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” is pretty clear. The beauty of the Constitution is that it is written in plain language for the people, not like your credit card contract, which is written for lawyers. These laws offend the Constitution of the United States.
We can give Rep. Farnsworth and the bill’s supporters credit for taking steps in the right direction, but do not let them think that it is over. It will be over when we get full repeal.
