A Rebuttal to the Attorney General’s Office on Asset Forfeiture

In reaction to our policy analysis highlighting several controversial changes made to forfeiture law in Utah, the Attorney General’s office has issued a response effectively arguing that we are making a big deal out of nothing. They are wrong, as this rebuttal will make clear.

Below we include their statements in whole and provide a rebuttal to each.

I. HB 384 Provides State Court Oversight

HB 384 retained the same criteria to be met before property can be turned over for federal forfeiture. Subsection 24-4-114(1)(a) provides that seizing agencies or prosecuting attorneys may not transfer property for forfeiture to any federal agency unless:
the conduct giving rise to the investigation or seizure is interstate in nature and sufficiently complex to justify the transfer;
the property may only be forfeited under federal law; or
pursuing forfeiture under state law would unreasonably burden prosecuting attorneys or state law enforcement agencies.

Under HB 384, a claimant still has an opportunity for state court oversight of this determination. Subsection 24-4-114(1)(b) provides that in making a determination about whether property should be turned over for federal forfeiture, “a court may conduct an in camera inspection of evidence provided by the prosecuting attorney or seizing agency.” In addition, Section 24-3-104 provides procedure whereby a property owner may petition the court for the return of the property seized as evidence.

The criteria under HB384 has substantially changed; the claim by the AG’s office that said criteria has been “retained” is incorrect.

Prior to the 2013 amendments, a transfer for forfeiture to a federal agency would be denied “if such transfer would circumvent the protections of the Utah Constitution” or state law as enacted by the 2000 initiative.

In addition, the procedures were dramatically altered by HB384. Previously, an agency seeking to move a matter to federal jurisdiction was required to provide notice to a potential claimant, thus affording an opportunity for that individual to be heard in court. That requirement has been eliminated.

Most importantly, prior to HB384 the decision regarding a transfer was firmly placed with the State District Court judge. Under the new law, an agency or prosecutor can simply make the decision themselves.

We argue that it is disingenuous to suggest that these provisions have not been substantially changed. We suspect that the changes were intentionally done to allow for more cases to be placed under federal control where the standards are lower and where law enforcement agencies are more easily able to take and profit from a citizen’s property.

II. HB 384 Protects Innocent Owners

HB 384 maintained all of the protections for innocent owners that were contained in the previous statute, including language which indicated that property used to facilitate criminal activity may only be forfeited if it is proportional. However, the State no longer has the responsibility of tracking down individuals who attempt to deflect or avoid criminal liability and prosecution by knowingly providing false information about their involvement in criminal activity or their residence. Under HB 384, notice of the forfeiture is sent to the address that is provided by the individual from whom property is seized. When individuals provide false information to law enforcement in the course of a criminal investigation and disclaim any knowledge of property, the State is no longer required to continue to seek out and notify the individual about the disposition of the property.

It is not true that HB384 “maintained all of the protections for innocent owners” that existed in the previous statute. Our analysis highlighted an alarming provision (to which the Attorney General’s office did not respond) effectively denying a right to due process prior to seizure for any property owner that signs a waiver. As our analysis indicates, this is a widespread trend rife with abuse.

As our report states:

In Utah and other states, a dangerous practice has emerged wherein a suspect in custody is offered release and the potential for never being charged in exchange for signing away all claims to their property. One of the risks of such a practice is that rather than investigating criminal conduct, it is much easier to get the money while ignoring the alleged criminal activity behind it. While such a practice is an effective means of obtaining more funding, it also creates a disincentive to investigate and ferret out the underlying criminal conduct.
…
Now, officers may effectively extort a detained individual, telling them that they won’t be arrested if they sign a document renouncing their claim to the seized property. Individuals who sign this document, whether due to intimidation or ignorance, lose any legal standing to file claim or otherwise assert their fifth amendment rights to due process prior to seizure of their property.

Under HB384, law enforcement officers are able to seize a person’s property quickly and without expense. From what we have learned, it appears that officers are sometimes releasing suspects as long as they sign the disclaimer form, with the implication that those who do not sign the form will be arrested and prosecuted. Forcing a citizen to waive their rights to due process as a quid pro quo of release is unconstitutional and bad policy.

Contrary to the AG office’s claim that the changes were made because of individuals providing false information, we argue that this change was made to provide law enforcement agencies with the means of acquiring property quickly without having to provide due process to the citizen.

III. The Time Limits for Forfeiture Were Clarified by HB 384

HB 384 expanded the time for filing a civil forfeiture complaint from 60 days to 90 days in order to give law enforcement and prosecutors enough time to conduct a thorough investigation to determine if forfeiture is appropriate or if the property should be returned. Just as before, prosecutors still can file a forfeiture action in the criminal case at any time. Resolving the forfeiture matter in a civil, rather than in a criminal, case may be to the advantage of the property owner since many criminal cases can take months or years to resolve.

This response is also disingenuous. The previous law was clear: forfeiture cases had to be filed within 60 days of seizure. Failure to comply with this requirement meant that the property would be returned to the citizen. HB384 eliminated this protection.

Further, HB384 muddied the waters in a manner that leaves prosecutors free to do as they please. In addition to raising the time limit to 90 days, the new law makes it optional for prosecuting attorneys to file a complaint (they “may elect” to file). With no teeth and an optional filing, HB384 allows prosecutors to seize and hold property for months, even years, without consequence. HB384 did not “clarify” time limits—it effectively abolished them.

IV. Limitations on Attorney’s Fees Removes the Profit Motive

HB 384 caps the amount that an attorney may obtain if an attorney prevails in a forfeiture action. Previously, the statute allowed prosecutors who litigated forfeiture cases on behalf of the State to obtain attorney’s fees in an amount up to 20% of the amount forfeited. Now this same cap also applies to a claimant’s attorney. By setting a limit on attorney’s fees it will take away the incentive for attorneys who actively promote the legalization of drugs in the state of Utah from soliciting clients who are engaged in criminal activity. A cap on attorney’s fees will encourage litigants to resolve cases in the best interests of their clients rather than in the best interests of the attorneys.

It is curious to see the government pushing back against a perceived “profit motive” when the criticism of forfeiture law is that it is “policing for profit” and that law enforcement agencies are able to directly or indirectly profit from the property they are legally incentivized to seize.

The AG office’s response again fails to address the actual change that HB384 enacted. Prior to HB384, a judge could award a property owner reasonable attorneys fees if the citizen prevailed. This award only applied if the citizen prevailed, meaning that it only applied when the government had not followed the law. No profit motive existed for either party because fees were limited to what a judge determined was reasonable, and the citizen had to actually prevail.

The intent of Initiative B was to open up the forfeiture process and ensure that citizens were free to assert their right to due process before their property was taken by the government. It was also carefully drafted to discourage unjustified seizures by the state by awarding attorneys fees to a prevailing party owner. The threats to citizens that contest a forfeiture, and the reward for those that prevail, were dramatically altered by the 2013 amendments as indicated in our analysis.

Under the current law, citizens are now threatened with costs if they contest the seizure. Law enforcement officers effectively warn or threaten the citizen in writing that an owner who decides to challenge the state’s seizure might end up paying the legal fees incurred by the state in defending their action. This was not a possibility prior to HB384.

Also, the government has now limited the ability of a citizen to recover their property when it was wrongfully seized. Prior to HB384 the court could order the state to pay for the citizen’s costs in getting their property back. Now a citizen is only entitled to 20% of the amount forfeited, meaning that a property owner could be 100% in the right, but end up losing everything.

Property owners, especially the indigent, are faced with enormous barriers to obtaining representation in forfeiture cases. Were attorney fee awards to remain capped under HB384, and with the risk of having to pay for the state’s legal costs, these barriers would become nearly insurmountable—the market for forfeiture defense counsel itself would be chilled, preventing the vast majority of property owners from being able to properly defend their property.

Conclusion

The quoted text above comprises the entire response given by the Attorney General’s office. We find their response to be underwhelming and inaccurate—it’s as if they don’t even know what the law says. One theory would be that they are purposefully attempting to mislead lawmakers and the public as to what the new law allows for, but as we do not know their intent, this is only a theory.

Let us assume for a moment that their response was accurate. Even under this scenario, HB384 made key changes to the law—it was not, as its sponsors claimed, a “re-codification” of existing forfeiture law.

But this scenario is wrong, because many substantial changes were made and the Attorney General office’s attempt to excuse or explain them away leaves much to be desired. Our analysis stands, and we find it disconcerting that the state’s lawyers have done such a poor job in responding to it.

After publishing our policy analysis we were contacted by many lawmakers who were shocked and frustrated that these changes slipped through undetected. They have all been eager to support legislation rolling these changes back. Senator Howard Stephenson has opened a bill file to revert the key portions of the law that we highlighted, and we have sent proposed bill text to him based on our analysis. We look forward to the debate and encourage all legislators, whatever their position on forfeiture law, to support this bill in a good faith effort to show the public that deceptive changes to the law will not be tolerated, and that any desired changes should be proposed in the light of day, with open debate, in a future legislative session.