Commentary: Civil forfeiture is a useful tool in fighting crime

Over the past year, a great deal of unwarranted criticism has been hurled at the government’s lawful ability to forfeit the tools and ill-gotten gains of criminals. Although forfeiture’s critics are entitled to their own opinions, they are not entitled to their own facts.

Forfeiture is the legal means the government uses to separate criminals from the tools of their trade and the proceeds from their crimes. In cases involving victims, property forfeited from criminals generally goes directly to compensating those victims. In relatively few cases, civil forfeiture is used instead of criminal forfeiture to target property that is proven to be linked to criminal activity even though the criminals themselves may escape prosecution. But the vast majority of forfeitures in Utah “follow the crime” — that is, the property is forfeited as the criminal is convicted.

Critics of forfeiture claim that law enforcement officers can seize property with just a “mere suspicion” that it is linked to crime. This is inaccurate and misleading. Judges use the “probable cause” standard in the federal courts, and in Utah, before ordering the seizure of property. This is the same standard they use to issues search and arrest warrants.

Other forfeiture critics claim that loose federal forfeiture laws stack the deck against private property owners. This too is untrue. Civil forfeiture is used in a relatively small number of cases. For example, it is used when a defendant passes away or to otherwise recover property from criminals who remain outside the jurisdiction of our courts. Anybody can make a claim to property that is the subject of civil forfeiture simply by identifying themselves and stating their interest. Often, that is enough for the government to return the property; but in a dispute, courts make the final decision.

And, contrary to the misinformation being pushed by critics, the government bears the burden of proof, by a preponderance of the evidence, that the property was used to commit or constituted the proceeds of a crime. Only if the government meets this burden must property claimants present evidence that they are innocent owners. Honest claimants are entitled to attorneys’ fees if they prevail.

Sadly, some forfeiture critics erroneously claim that local law enforcement is profiting hand-over-fist from a process called “equitable sharing,” in which local law enforcement keeps some of the proceeds from forfeited property when a case is handled jointly with federal authorities. Although equitable sharing can certainly provide a needed boost to local agencies’ budgets, it is hardly a federal gravy train. My office’s figures show about $700,000 in equitable sharing was dispersed to many local agencies in FY 2016 — a helpful amount that can provide for needed resources, but not officer salaries, bonuses, or non-law-enforcement expenses.

Although stories of forfeiture abuse by a few corrupt officials exist, those stories are also outliers. Eliminating an essential law enforcement tool like forfeiture because of a few bad actors nationwide would be like banning skiing at Utah resorts because a tiny fraction of skiers die each year in America.

Honest debate over law enforcement practices like forfeiture is healthy and necessary in our democracy. But “honest” is a key word. Half-truths and hyperbole do a disservice to our brave men and women in law enforcement, prevent meaningful reform where necessary, and can lead to rash, harmful decisions by even well-intentioned policy-makers. The deputies, troopers, and officers who put their lives on the line to protect us deserve our support; the least we can do is get the facts straight when we discuss issues important to their fight.

U.S. Attorney John W. Huber speaks outside the federal courthouse Wednesday, Sept. 20, 2017, in Salt Lake City. (AP Photo/Rick Bowmer)

John W. Huber is U.S. Attorney for the District of Utah