This op-ed was published today in the Daily Herald.
In Colonial America, British officials were able to freely search through people’s homes, boats and businesses, seizing property from innocent colonists. They were quick to take advantage of the writs of assistance that granted them power to search for smuggled goods within private property — writs they wrote themselves. Furious with these excessive and unwelcome searches and seizures, the Founding Fathers wisely aimed to protect individual rights against government intrusion in the Constitution.
One of these rights is the presumption of innocence — a fundamental principle since the days of English common law. It purportedly prevents actions like flippant searches and seizures without evidence of one’s guilt. And while the American criminal justice system tries to protect this presumption of innocence for people, their property can still be treated as guilty unless it is proven innocent.
This process is known as civil asset forfeiture, and it allows law enforcement to take and keep a person’s property without convicting them with — let alone charging them of — a crime. The property they take, whether it be cash, cars or even houses, are inanimate objects not afforded the same rights as criminally accused people — but they are still treated as if they were involved in a crime. Forfeiture cases will typically be titled The State of Utah v. Fifty Dollars or The State of Utah v. 2007 Black Mazda.
Because prosecutors might never criminally charge the owner of the property, they can simply seize it and permanently take ownership without any criminal charges so much as being filed. The only thing that needs to be present is suspicion that the items were somehow related to a crime.
A recent poll found that an astounding 84 percent of Americans oppose civil asset forfeiture — including politicians from both major political parties. Despite this opposition, the practice remains pervasive throughout the country. This is not surprising considering the billions of dollars the government takes through forfeiture every year, providing a substantial financial incentive for government agencies to violate a person’s right to own property.
Carole Hinders was the proud owner of Mrs. Lady’s Mexican Food restaurant in a small town in Iowa. Her restaurant only accepted cash as payment, which resulted in Carole taking multiple trips to the bank with large cash deposits. The IRS thought the cash was illicitly obtained and seized her entire bank account in 2012, totaling nearly $33,000. Carole was never charged with a crime, so she fought back with the help of Institute for Justice, a public interest “law firm for liberty.” After over a year and a half of fighting her own government, she got her money back.
But not everyone is as lucky as Carole nor receives the help of a pro bono law firm. And with the average amount in Utah forfeitures standing at just over $1,000, there’s a financial disincentive to fight; nobody is likely to spend thousands of dollars in attorney fees to recover such a small amount.
Many states, including Utah, have taken steps to protect people’s property rights by restricting or repealing civil asset forfeiture. According to the Institute for Justice, fourteen states require criminal convictions before property can be seized in most circumstances — preserving the principle of presumed innocence. This isn’t the case for Utah.
Several years ago, a working group of prosecutors conspired to deceive the Utah Legislature into gutting forfeiture laws to make their job easier. In passing these bills, the Legislature unknowingly overturned several important restrictions on asset forfeiture that were enacted by voters in a 2000 citizen’s initiative. Libertas Institute exposed this deceitful plot and has been working to fix and improve the law ever since.
Property should not be permanently taken from Utahns who haven’t been charged with — let alone convicted of — a crime. Current asset forfeiture laws in the state allow for this to happen, creating an easy incentive for abuse by law enforcement and prosecutors who are able to keep a large amount of what they take. This law needs to be reformed to ensure that property is only taken when it has been proven to be connected to a crime for which a person was convicted. People who are presumed innocent should not have their hard-earned property taken on a mere accusation.
Today’s anniversary of the Constitution’s adoption is a reminder to always be on close guard to watch for government’s violation of our rights and work diligently to better protect them. In order to “secure the blessings of liberty to ourselves and our posterity,” it is necessary to stand up for individual rights now to prevent their later erosion.
Our right to own and keep our property is under threat here in Utah — eroded by a persistent effort by government officials to ensure civil asset forfeiture can continue. It’s time that the Constitution-loving people of Utah put an end to this practice.