May 21, 2020
By Jenna Bentley
Currently, it’s legal for the state of Arizona to take property away from citizens without a criminal conviction. But now, the Grand Canyon State is on the verge of passing an important law to protect Arizonans’ property and due process rights.
Yesterday, the state’s House Judiciary Committee passed SB 1556, which would reform civil asset forfeiture laws to bolster protection of Arizonans’ rights. Civil asset forfeiture was originally sold as a tool to go after large drug organizations. But how forfeiture was actually being used was shrouded in mystery because law enforcement had no obligation to disclose that information. In 2017, the Arizona Legislature unanimously passed reporting requirements—and those reports showed the need for further reforms.
Arizona law allows enforcement agencies to seize and forfeit property if they believe that the property was used in a crime, was going to be used in a crime, or is criminal proceeds. There is no requirement that the person who owns the property has to have been convicted of a crime for their property to be forfeited to the government forever. They do not need to even be in possession of the property when a crime does occur for it to be taken.
Even when a person who has had their property seized or forfeited is found to be innocent, under the current civil asset forfeiture laws there is no guarantee their property will be returned to them. In most cases, it never is.
People do not have the ability to challenge the seizure of their property or have their property returned before the end of the full litigation process. While the 2017 reforms took steps to make it easier for people to challenge the forfeiture, but that process is expensive, time-consuming, and (even if you have legal training) very complicated. In Arizona, 84% of seizures are for property valued under $10,000, which means in many instances, the fight to get your property back will cost more than the property is worth.
Fortunately, SB 1556 seeks to ensure Arizonans’ rights are protected by:
- Requiring a criminal conviction before a forfeiture can occur;
- Creating a post-seizure hearing process to allow property owners to challenge the seizure of their property unless the individual is charged with a crime and the property is to be used as evidence; and
- Protecting innocent third parties by shifting the burden of proof from the owner to the law enforcement agency to prove that the owner had knowledge of the criminal activity.
These simple reforms are needed now more than ever in the wake of the COVID-19 crisis and looming economic recession. Because funds from assets seized under civil asset forfeiture can be used by agencies, we have seen a perverse incentive to rely on these funds for operating costs—especially during times of economic downturns.
After passing unanimously from the Senate earlier this session, this critical and commonsense reform now awaits a floor vote from the House before being sent to Governor Doug Ducey’s desk for signature. SB 1556 is a simple fix and is a concept that has received bipartisan support in Arizona and nationally. We urge Arizona House members to vote yes to ensure that Arizonans receive the protections they deserve.
Jenna Bentley is the Director of Government Affairs at the Goldwater Institute.