Editorial By Columnist Robert Robb
The Arizona Republic, Nov. 21, 2004
Protecting society against criminal depredations is
among the chief duties of government. And sometimes government is granted
unusual powers to combat particularly insidious threats.
That was the case in the 1970s when the threat was organized crime, or the
Mafia, as it was commonly called.
Because of its secretiveness, discipline and hierarchical structure, the
Mafia was difficult to defeat with conventional law enforcement tools.
So, the decision was made to try, in part, to defund
it. The federal government and various states, including Arizona, passed
anti-racketeering statutes that enabled law enforcement to seize property
and assets used in certain crimes.
To seize the asset, government doesn't have to convict the owner or even
prove that the owner knew that the property was going to be used criminally.
Instead, all government has to do is establish the connection between the
property and the crime. Someone wanting it back must then prove ownership
and a lack of knowledge of how the property was going to be used.
This was an extraordinary departure from the burden being on the government
to prove individual wrongdoing before confiscating someone's property. But
the Mafia's special threat to civil order was thought to justify it.
As is so often the case, the statutes were written broadly, and this
forfeiture authority has long migrated to a wide range of criminal activity.
Very rarely is forfeiture authority used any longer against someone most
people would regard as part of an organized crime syndicate that was as
menacing, and as difficult to disrupt using conventional law enforcement
tools, as the Mafia.
The Goldwater Institute last week issued a paper and held a debate about
Arizona's forfeiture law, raising the question of whether it is time to
abolish or limit it.
The paper was written by Tim Keller, the resourceful executive director of
the Arizona chapter of the Institute for
Justice, a libertarian public-interest law firm.
The institute has filed suit against New Jersey's forfeiture law, claiming
that it violates the due process protections of the federal Constitution. In
the debate, Keller indicated that the institute was interested in filing a
similar challenge in Arizona.
So, much of the paper and the debate were devoted to whether the Arizona law
fits the U.S. Supreme Court's jurisprudence on the issue. Which in turn
rests largely on whether law enforcement officials have too much of a
direct interest in seizing assets to exercise their authority objectively.
Under Arizona law, forfeiture proceeds go into funds reserved for law
enforcement agencies. So there is an obvious self-interest, irrespective of
whether it exceeds that permitted by the court.
According to Keller's paper, nearly $19 million in forfeiture revenue was
collected last year, a 34 percent increase in just three years.
In Maricopa and Pima counties, forfeiture revenue represents a small portion
of overall law enforcement budgets, less than 1 percent and less than 2
percent respectively. In some smaller counties, however, the reliance is
much greater, as high as 35 percent in Santa Cruz.
Keller makes a major issue of the percentage of forfeiture revenue that goes
to support salaries and equipment purchases, in which law enforcement
officials have a much larger direct interest than in, say, community
prevention grants. But the period he covers, 2000 through 2003, were years
of excruciatingly tight revenues for state and local government. So, it's
unclear whether this represents policy or temporary financial necessity.
Those of us who are not U.S. Supreme Court justices should look at the issue
more broadly than whether the self-interest of law enforcement exceeds a
particular threshold.
The public policy question is
whether this is a general authority government should have.
The case that forfeiture authority is being abused - innocent parties
either not being able to get property back or doing so only after inordinate
difficulty and expense - is primarily anecdotal. A thorough evaluation
requires painstaking reviews of a large volume of cases, something that
hasn't been done in Arizona for more than a decade.
But even when forfeiture works as intended, there are often innocent
victims. A recent Arizona Court of Appeals decision involved a Pima
County cocaine convict who lost his home to forfeiture, stranding his wife
and children.
In the debate, Cameron Holmes, who practices in this area for the state
Attorney General's Office, pointed out that recoveries for crime victims
would be more difficult without forfeiture authority.
That's undoubtedly the case. But in a free society, some
things are supposed to be more difficult. And one of them is government
taking someone's property without first proving wrongdoing.