Governor Herbert has stated, “Taxpayers and citizens have a right to know where every tax dollar goes and how it is spent, and state government has a responsibility to be accountable and open to constituents.” He continued: “On balance, we have made great strides toward more openness and transparency in government. That’s evident by enhanced web reporting and the installation of a government records ombudsman. But we will not back off our commitment to do better.”
We believe that the government can do better.
Serving as the people’s representatives, Utah lawmakers can only respond to any problems that may exist to the extent that they understand these problems. This understanding requires information—how the process currently works, how it’s being abused, how it’s falling short, etc. If this information is not available, then legislators cannot realize and respond to problematic areas in public policy.
This bill proposal does not seek to restrain officers in their work. Instead, we believe it is necessary to better inform lawmakers, and the public at large, regarding how police officers are using their authority to enforce the law. We agree with Governor Herbert that the government, including law enforcement, must “be accountable and open.” This bill proposal facilitates that objective.
We sincerely hope that such transparency will reveal no problems. Of course, whether problems exist or not is a secondary concern—transparency in the enforcement of the law is a needed step to help ensure the public can have an informed trust of the police.
According to one estimate, roughly 40,000 SWAT or tactical raids are conducted around the country each year—over 100 per day. In most cases, officers detain the suspects and seize the desired evidence without harm to themselves or those present in the home they entered. But in too many cases, something goes wrong and somebody—in many cases an innocent person—gets hurt, or worse, killed. Utah is not an exception to this trend.
This violent enforcement of the law, primarily relating to drug enforcement, suggests a weakening—if not abandonment—of the restraint that the American legal system was designed to ensure when dealing with warrants.
Prior to the Revolutionary War, agents of the British government used “writs of assistance” to authorize general searches and seizures. This broad targeting of innocent people, and the taking and destruction of their property, played a large role in the brewing opposition to the Crown. As James Otis argued, these writs were “a power that places the liberty of every man in the hands of every petty officer.”
Due to their experience with this abuse of authority, the framers of the Constitution passed the 4th amendment which required a warrant signed by an impartial judge, based upon probable cause, that was specific to a person or property. Accordingly, today we expect judges to serve as a check on the authority of law enforcement officials to ensure that the rights of each citizen are considered and protected.
But what happens if judges don’t “check” this authority when necessary? Are a citizen’s rights fully regarded when the judge and law enforcement officer have a “history” together and therefore are somewhat predisposed to collaborate? How can we be sure that judges around the state are upholding our rights and granting the authority to forcibly enter a person’s home based on a consistent state-wide standard?
To ensure that punishments meted out by judges around the state are equitable, the Utah legislature establishes sentencing guidelines; it would clearly be problematic for a judge to punish a convict with 40 years in prison while another judge imposes a sentence of only one year on another person for the same crime. As with sentencing, we believe it is necessary for the legislature to establish reasonable guidelines for judges when being asked to sign off on a request to forcibly enter a person’s home.
We wish to minimize the risk both to citizens and law enforcement officials, and believe that better judicial oversight—to ensure that forcible entry is occurring only when absolutely necessary, and when the circumstances truly justify its use—will facilitate this important objective.
A 2000 citizen initiative that passed by 69% of the vote in Utah introduced substantial restrictions on asset forfeiture—the process whereby the government seizes a citizen’s property—but several key provisions were overturned unanimously by the legislature in 2013 after lawmakers were told that the bill was a simple “re-codification.”
The initiative was created in large measure to prevent law enforcement agencies from directly profiting from the property they seized, as this financial opportunity created an incentive to seize property. The legislature amended the law in 2004 introducing some minor changes, including allowing proceeds from seized property to be funneled back to the agencies through the Commission on Criminal and Juvenile Justice instead of being deposited in the Uniform School Fund.
In the 2013 legislative session, HB384 gutted many of the important protections introduced through the 2000 initiative, and left in place by the 2004 amendments. Sponsored by Representative Dee and Senator Bramble, the bill was pitched to colleagues as a simple “re-codification” of existing law—a “clean up bill” with little to no substantive changes being made. In the rush of the last days of the session, with likely few (if any) legislators reading over 50 pages comprised heavily of new text, and with the assurance of the bill being a re-codification, both chambers unanimously approved the bill.
As noted in our analysis, HB384 actually altered forfeiture law in an alarming way—a fact that many legislators may be concerned about when they realize what they were led to vote for, and that many citizens may be enraged about when they realize that the will of the people, as expressed in the 2000 initiative, has effectively been overturned.