HB22: Reforming Civil Asset Forfeiture, Protecting Property Owners

This bill passed the House 56-17 but was tabled in a Senate committee.

Libertas Institute supports this bill.

Utah recently received a “D-” from the Institute for Justice for its forfeiture laws, and the potential for abuse that they enable, whereby police officers and prosecutors can collude to legally steal an innocent person’s property. House Bill 22, sponsored by Representative Brian Greene, aims to earn Utah an “A” in the next report by enacting many substantive restrictions on this legal authority.

Utah has had a tumultuous history with civil asset forfeiture years, including the orchestrated deception of prosecutors in the Attorney General conspiring to (successfully) deceive the legislature into reforming forfeiture law to enable easier theft of property. Libertas Institute’s efforts have, fortunately, brought transparency to these actions along with support to restore the changes and increase transparency. Rep. Greene’s bill continues this momentum to enacting stricter controls on forfeiture to minimize abuse.

Specifically, the bill would accomplish the following:

• Any revenue obtained through civil asset forfeiture—after deducting attorney’s fees related to the forfeiture—will be required to be deposited into the state’s education fund. This is the approach taken under the 2000 citizen’s initiative that restricted forfeiture, but was later turned into a money laundering scheme whereby the money would be sent to the Commission on Criminal and Juvenile Justice, who would then disburse the money as grants back to police agencies. This profit motive leads to widespread abuse of forfeiture; after the 2000 initiative redirected money, forfeitures essentially stopped. This amendment makes clear that forfeiture can continue, but police budgets will not benefit from the action. Revenue obtained from criminal forfeiture may still be used by, and distributed to, police agencies.
• Unlike a few other states that have recently abolished civil asset forfeiture completely—an action that may, in some cases, lead to criminal charges being filed against individuals who otherwise would escape the criminal justice system—this bill leaves the civil process intact while requiring “a direct nexus between the seized property and the conduct giving rise to the forfeiture.” If the property owner is acquitted of the related criminal conduct, the civil forfeiture is overturned and the property is returned to the owner.
• The definition of “proceeds” is tightened up to ensure that only direct proceeds of alleged criminal activity is subject to forfeiture. This will prevent prosecutors from going after property with a tenuous—or non-existent—connection to actual criminal conduct by claiming that the property is the result of indirect proceeds from the criminal activity.
• Similarly the bill amends the definition of an “innocent owner” to hold harmless a property owner who did not give permission for alleged criminal conduct involving the property, did not directly commit the offense, and did not solicit another person to engage in the conduct. Further, the legal standard is elevated to a “clear and convincing” standard, ensuring that prosecutors cannot obtain the property of owners without strong proof that they were aware of, and participated in, the alleged criminal activity.
• A cap placed on attorney’s fees is removed. Previously, state prosecutors amended the law to place a limit for fees at 20% of the value of the property. This created a strong disincentive for innocent property owners to hire an attorney and fight for their property, especially if it was only worth a few thousand dollars. Repealing this provision will allow owners to seek the return of their property, while a successful attorney representing the innocent owner will be compensated fully, and thus incentivized to assist innocent owners defend themselves.

This bill allows prosecutors to continue to seize property that is the result of crime, while holding harmless innocent owners who are not involved in crime. Around the country, and in Utah, forfeiture has been abused and innocent individuals have had their property legally stolen by the government. This bill is an important step in the right direction for protecting property rights.