Policing and Prosecuting for Profit: Arizona's Civil Asset Forfeiture Laws Violate Basic Due Process Protections

Posted on November 15, 2004 | Type: Policy Report | Author: Timothy Keller
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EXECUTIVE SUMMARY

In 2002, New Jersey's Carol Thomas made headlines after her teenage son used her 1990 Ford Thunderbird to sell marijuana to an undercover police officer. He was arrested, pled guilty and faced his punishment. However, that did not end the case. The government also seized Thomas' car, despite the fact that no drugs were found in the car, she was the sole owner, and she had no knowledge of her son's use of the car to sell illegal drugs. The government's action was pursuant to a legal doctrine-civil asset forfeiture-that allows police and prosecutors to seize and forfeit property without ever filing criminal charges against the property owner.

The purported intent of asset forfeiture laws is to deprive criminals of their ill-gotten property and cash and then use those proceeds to enforce the very laws the wrongdoers violated. Yet civil forfeiture laws are one of the most serious assaults on private property rights in the nation today because many forfeiture schemes give police and prosecutors a direct financial stake in the outcome of forfeiture proceedings by allowing them to keep the money and property confiscated from individuals. Arizona's forfeiture law is just such a scheme. It threatens to divert law enforcement priorities away from the fair administration of justice and toward the pursuit of property and profit in violation of both state and federal constitutional due process provisions, which guarantee that those responsible for enforcing the law must administer justice in an impartial manner.

Over the past four years, civil forfeitures generated $64.5 million in revenue for state and local law enforcement agencies and, in many cases, forfeitures constitute a sizable percentage of agency budgets. For example, in fiscal year 20031 forfeiture revenues constituted 39 percent of Pima County's Counter Narcotics Alliance's2 budget-up from zero percent in 2000. Pinal County's forfeiture spending leapt from less than $500,000 to close to $1.5 million-a 200 percent increase in one fiscal year.

While law enforcement is a legitimate government expense, and properly funding police should be a legislative priority, law enforcement agencies should not rely on forfeiture funds to increase their budgets. 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.

Due process prohibits statutory schemes that create actual bias, the potential for bias, or even the appearance of bias in the administration of justice. Policymakers should repeal Arizona's civil asset forfeiture scheme to protect private property rights.

Read Policing and Prosecuting for Profit here.

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