Civil asset forfeiture called assault on private property rights

Posted on January 04, 2005 | Type: In the News
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Arizona has used a legal tactic known as civil asset forfeiture to confiscate about $65 million worth of private property over the past four years.

And the state's laws allow police to seize property allegedly connected to a crime without ever filing criminal charges against the property owner.

So whether you are a business owner, a partner in a business, a homeowner or the parent of a child accused of wrongdoing, your assets could be seized even if you are not personally involved in the alleged act.

So says a recent study by the Goldwater Institute, a Phoenix-based conservative think tank, which says the state's civil asset forfeiture laws are unjust and should be repealed.

"Civil asset forfeiture is one of the most serious assaults on private property rights in Arizona today," said Tim Keller, executive director of the Institute for Justice, who co-wrote the report with Jennifer Wright, an Arizona State University law student.

The intent of forfeiture laws is to deprive criminals of ill-gotten gain. However, the Goldwater study - "Policing and Prosecuting for Profit: Arizona's Civil Asset Forfeiture Laws Violate Basic Due Process Protections" - argues that law enforcement agencies are encouraged to confiscate property because they get to keep the proceeds.

"In many cases, forfeitures constitute a sizable percentage of agency budgets," the report said.

According to the study, about $2.7 million in forfeiture revenue was generated in Pima County during fiscal 2000. By FY 2003, that amount had nearly doubled to $5.1 million.

"It is precisely because law enforcement agencies want to purchase weapons or hire additional officers - and because more forfeiture means more money -that an improper incentive is created to forfeit more and to do so in a manner that is not necessarily fair," the report said.

Keller said the state's civil asset forfeiture laws are stacked against those whose property has been seized.

"The person who has had property taken must go to court and prove by a preponderance of the evidence that the property was not subject to forfeiture. That is absolutely backwards," he said. "The government should have to prove beyond a reasonable doubt that the property was used to directly facilitate a crime or was purchased with criminal profits."

Keller said those challenging a forfeiture unsuccessfully are required to pay court costs and fees incurred by prosecutors. And even when property is judged to have been seized improperly, the person whose property was taken cannot recover attorney's fees from the state, he said.

Keller believes civil asset forfeiture laws should be abolished and only criminal forfeiture laws should be retained.

"Under criminal forfeiture laws there is a requirement that a person be found guilty of a crime before property is forfeited," he said.

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