What we found is that millions of dollars flow in and out of forfeiture accounts annually. Over the four-year period examined, law enforcement officials collected nearly $65 million in forfeiture revenue. And they spent just about $11 million of that on employee compensation - on both regular salaries and overtime expenses.

    It should shock the conscience that Arizona law allows forfeiture revenue to pay law enforcement salaries. Officials thereby benefit to a large degree from forfeited property.

    While nobody is accusing anyone of embezzlement or personal enrichment, there is an inherent institutional bias in any scheme that allows the seizing agency to profit as a result of forfeiture actions. And the more property agencies forfeit, the more money they have available to buy the things they perceive their agencies need.

    Four years ago, Pima County's Counter Narcotics Alliance spent no forfeited funds. But by 2003 the Counter Narcotics Alliance was spending over $1 million in forfeited funds to cover almost all of its budgeted expenditures for overtime wages and travel. During that same period, Pima County's annual forfeiture revenue doubled from $2.5 million to $5 million.

    It is difficult to avoid the conclusion that the Counter Narcotics Alliance's increased dependence on forfeiture revenue to meet its budgeted needs contributed to such a dramatic increase in Pima County's forfeiture revenue.

    Inevitably, giving the law enforcement bureaucracy a financial incentive to seize property all too often results in the abuse of individual rights. 
 

    INNOCENT OWNERS FACE A STACKED DECK 

    Prosecutors are not required to establish the identity of any wrongdoer, or that any wrongdoer has an interest in the property to be forfeited. Innocent property owners caught up in forfeiture proceedings face a stacked deck. The burden is on the person who claims their property is exempt from forfeiture to prove ALL of the following:  

    1.) The ownership interest in the property was acquired before the conduct giving rise to the forfeiture;

    2.) The owner did not empower any person whose act or omission gave rise to the forfeiture, and that they were not married to any such person or, if married to such person, that the property was held as separate property; and

    3.) That the owner did not know and could not reasonably have known of the conduct giving rise to the forfeiture or that it was likely to occur.

    Any claimant who fails to establish that his or her entire interest is exempt shall pay the state's costs and expenses, including reasonable attorneys' fees. But the law does not allow successful claimants to be awarded attorneys' fees.

    And because Arizona does not recognize spouses or business partners as owners for purposes of claiming an exemption from forfeiture, Arizonans are at risk of suffering the same humiliation and loss as Michigan's Tina Bennis.

    In Ms. Bennis' case, the U.S. Supreme Court upheld the government's forfeiture of her jointly owned car after her husband, unbeknownst to her, used it to engage the services of a prostitute. 

  

LAW ENFORCEMENT SHOULD NOT HAVE TO RAISE ITS OWN FUNDS FOR THE PURCHASE OF EQUIPMENT

    Law enforcement is certainly a legitimate government expense. Properly funding and equipping police and prosecutors must be a legislative priority. But we should not ask law enforcement to raise its own funds for the purchase of equipment by seizing and forfeiting Arizonans' property.

    Law enforcement officers naturally want to buy items, such as Chandler's $120,000 purchase of combat helmets and face shields, Mesa's $65,000 acquisition of a jail van and Tempe's $220,000 procurement of new wiretap equipment. It is because forfeitures mean higher budgets to purchase these things that an improper incentive arises to forfeit more and not necessarily forfeit fairly.

    The U.S. Supreme Court has warned that serious concerns are raised when a government official's judgment is "distorted by the prospect of institutional gain as a result of zealous enforcement efforts."

    Law enforcement deserves nothing less than to have its primary responsibility of enforcing the law fairly and impartially restored by removing the profit motive built into Arizona's civil forfeiture scheme.

    If Arizona's policy-makers are not up to the task, it will be on the shoulders of a courageous individual to stand side by side with the Institute for Justice in a lawsuit aimed at having these perverse financial incentives declared unconstitutional.

* Written by Tim Keller for the 12-5-04 East Valley Tribune's "Perspective Section" page 108.