Commentary: Civil forfeiture is worse than its proponents proclaim

A recent op-ed from the federal prosecutor assigned to Utah, John Huber, defends the practice of civil forfeiture from its critics, who include us (“Civil forfeiture is a useful tool in fighting crime,” Sept. 30).

But not just us — 86 percent of Utah voters and 84 percent of all Americans oppose civil asset forfeiture. For the uninitiated, this is a law that allows the government to legally take possession of your property without even having to charge you with commission of a crime, let alone secure a conviction.

Huber first aims to defend this practice by writing that forfeiture “separate[s] criminals from the tools of their trade and the proceeds from their crimes.” The problem here? Too often, there is no conviction and therefore the person is still only an alleged criminal, presumed to be innocent.

Huber’s attempt to muddy the waters here shows the underlying philosophy of forfeiture’s few champions—the presumption of guilt, rather than innocence, of the person and the property itself.

The data indicate the problem. The most recent data for forfeitures in Utah show that only 87 percent of cases involve a criminal charge, with only 58 percent resulting in a conviction. Even more troubling, 64 percent of cases involve a default judgment because the person doesn’t even fight the forfeiture at all.

Huber ignores this. “The government bears the burden of proof,” he writes, “that the property was used to commit or constituted the proceeds of a crime.” But this is only relevant in cases where the property owner actually fights back. Too often, they don’t.

And why don’t they fight? Consider this: The median value taken in forfeitures last year was a mere $1,071. Ask yourself: Would you hire an attorney for thousands of dollars to try to reclaim so little an amount? The question answers itself.

Then there are the larger cases, where it may make financial sense to fight. Even then, exchanges are offered by the prosecutor where the owner gets to keep half of the property if they agree to drop the case, letting the government keep the other half. No charges filed, no conviction, just a negotiation in which a property owner decides it’s better to lose some of the property than to spend a substantial amount of money and time fighting for years.

That isn’t justice. And it certainly isn’t the everything-is-peachy “essential law enforcement tool” Huber tries to depict. It is, rather, a law in dire need of reform.

We have worked together for years to achieve that goal, despite substantial opposition from police and prosecutors who desire an easier path by which to separate people from their property. In 2000, Utah voters overwhelmingly passed a ballot initiative designed to restrict law enforcement’s ability to forfeit property — and ever since, opponents have been seeking to undermine it.

In the past few years especially, a troubling trend has emerged as some law enforcement officials have attempted to skirt the clear requirements of Utah law. With the apparent blessing of prosecutors such as Huber, they have attempted an end run around state law by passing off seized assets to the federal government. This practice — sometimes called an adoptive forfeiture — allows the resulting bounty to be shared between the federal government and the state police agency. This type of adoptive forfeiture has been expressly outlawed by Utah voters and our Legislature.

Recently, the Utah Supreme Court unanimously ruled that law enforcement officials had violated the law by attempting to transfer Kyle Savely’s property to the federal government rather than adhering to protections in state law, which would have required his property be returned. Savely, merely driving through Utah and being pulled over for a minor moving violation, had a substantial amount of money taken and held by the government for nearly two years. He was never charged with a crime, yet found himself trying to reclaim his property from the government.

Huber suggests to readers that stories like Savely’s are to be dismissed as “abuse by a few corrupt officials” that are “outliers.” But the problem is not the random few—it’s the system itself that permits and perpetuates the taking of property without sufficient safeguards in place to protect the rights of the owner against the government.

It’s understandable that prosecutors want an easier way to do their job, but defending a highly problematic practice like civil asset forfeiture is a difficult thing to do. We instead agree with the vast majority who find this system inherently troubling — the result not of a few bad apples, but of a disease that infects the entire crop.

Jim Bradshaw

Jim Bradshaw is a criminal defense attorney with Brown Bradshaw & Moffat, who represented Kyle Savely before the Utah Supreme Court.

Connor Boyack | Libertas Institute

Connor Boyack is president of Libertas Institute, which filed an amicus brief in the case.