One of the craziest stories of the recently completed 2019 Utah legislative session played out almost completely behind the scenes surrounding attempts to rein in the potential abuses of a process known as civil asset forfeiture.
It’s not a sexy name, but civil asset forfeiture is a contentious topic across the country. Critics have called it “highway robbery.”
In 2017, Utah law enforcement reported seizing $2.7 million in assets that were believed to be proceeds from criminal acts. But note that they are alleged crimes committed by suspects. Fifty-eight percent of those suspects were eventually convicted — meaning 42 percent of them were not, according to the report.
The average amount taken was about $1,000, meaning we’re not exactly talking about Mexican drug kingpin “El Chapo” here. You can see where this could be a problem.
Currently, property seized by law enforcement goes into an account controlled by the Utah Commission on Criminal and Juvenile Justice, and police can apply for a grant from the fund if they need money for equipment or operations. It’s a good model that keeps departments from setting out to confiscate property so the department can afford new gadgets or computers.
State Sen. Todd Weiler’s bill, SB109, would have made two simple improvements: First, it would have removed a requirement that law enforcement agencies contribute to the asset forfeiture fund in order to qualify for a grant. Weiler, R-Woods Cross, said forcing them to seize property to get money amounts to a “pay-to-play” incentive.
Second, it would have made it harder for local cops to hand over seized money or property from a suspect to federal partners. There’s a good reason to make that change — namely that federal law makes forfeiture much, much easier than state law, and local agencies get a percentage of the money back.
The Utah Supreme Court recently ruled agencies can’t do that after the Utah Highway Patrol tried to hand over a gym bag with $500,000 seized in a 2016 traffic stop to the Drug Enforcement Administration, which kept the money, even though the alleged perpetrator was never charged with a crime.
Weiler’s bill was an attempt to comply with the court’s ruling by requiring a judge to sign off when an agency wants to hand over seized assets — a fairly reasonable step.
What happened behind the scenes on this bill, though, was unlike anything I’ve seen in the years I’ve covered the Legislature.
Leading up to the session and over the first few weeks lawmakers were meeting, two people from the state attorney general’s office, Dan Burton and David Carlson, were assigned as sort of a “fix-it” team to try to work out some version that the office would be satisfied with.
Carlson testified against Weiler’s bill when it was before a Senate committee, pulling out a couple of pounds of brown sugar wrapped like heroin as a visual aid. Weiler was angry and the two had a heated exchange in the cafeteria before Carlson drove off.
On the interstate, Carlson suffered a massive heart attack, lost consciousness and rolled his car. He was resuscitated by West High junior Felix Ortiz. Soon after, Ortiz was honored by the Utah Legislature for saving Carlson’s life.
Despite opposition from the attorney general’s office, Weiler’s bill passed the Senate unanimously and Weiler — along with Connor Boyack, president of the Libertas Institute, a libertarian think tank and vocal opponent of asset forfeiture — struck a deal on slightly watered down language that the attorney general would not oppose.
Or that was the assumption until the bill showed up in the House Law Enforcement Committee, made up of decidedly pro-law enforcement members who were hostile to the bill, and not one but two representatives of the attorney general’s office — Scott Reed and Scott Carver— who voiced concerns.
They were joined by a chorus of local law enforcement who were triggered by Weiler’s insinuation that they were fleecing citizens and his use of the phrase “pay-to-play.”
“Pay-for-play is a myth. It doesn’t exist,” said an indignant Ogden Police Chief Randy Watt.
“With the opioid crisis, this is not the time to make it harder for police officers to do their work,” said Carroll Mays, deputy director of the Metro Narcotics Task Force. “With record numbers of Americans dying of drugs, please don’t hinder our [ability to do our job].”
Even Brian Besser, who heads the Utah DEA office, spoke about how the bill would hobble law enforcement trying to stop the scourge of drug cartels.
None actually articulated HOW the bill would have impeded their ability, other than it might take some money out of their pockets. That hardly mattered. Committee members killed the bill, like they were certainly going to do from the start.
Weiler was furious, feeling that he had been double-crossed by the attorney general’s office. Reed was banished from the Capitol for the rest of the session.
Trying to mend fences, the attorney general’s office tried to get House leaders to give the bill another hearing, but that never happened and the bill died.
But the issue won’t die.
“Next year we’re coming back harder,” Boyack said.
This year, the U.S. Supreme Court ruled in an Indiana case that forcing a suspect to surrender a $40,000 truck because he had $400 in heroin constituted an excessive fine — which is a violation of the Eighth Amendment. Add to that the recent Utah Supreme Court decision and there clearly are important issues that need to be addressed.
One of the things Reed said in his controversial testimony rang true: Since 2000, when the state passed a ballot initiative significantly restricting asset forfeiture, the Legislature has been “putting patches on patches.”
So let’s stop with the patches and start fresh.
We can find a balance that protects citizens and ensures criminals don’t profit. Weiler’s bill is a good starting point.