Civil Forfeiture Reform in Arizona Finally Becomes Reality

May 10, 2021

Civil forfeiture laws are powerful tools that allow states and the federal government to seize assets, both tainted, and untainted, without any kind of an adversarial hearing. Civil forfeiture defendants do not have the same protections that are afforded in a criminal case. They do not have the right to counsel, the presumption of innocence, nor must the state prove its claims beyond a reasonable doubt. Most defendants, whose bank accounts are frozen, cannot afford to hire an attorney. If they are fortunate enough to be able to retain an attorney, most lawyers, including criminal defense lawyers, are not skilled in civil forfeiture. Nine times out of ten, defendants forfeit their assets, either because they are unfamiliar with the stringent rules associated with filing a claim, or they enter “cash for freedom” agreements to avoid being prosecuted.

Until just a few days ago, arizona was one of the few states in the union that allowed the seizure of “substitute assets”—in other words, assets which are not the “fruits of the crime.” between 2012 and 2017, law enforcement in arizona seized over $200 million in assets from people who were never even charged with crimes. [1] police could seize assets simply through a sworn affidavit, and defendants had no right to an adversary hearing on probable cause. That all changed, however, on may 5, 2021, when governor doug ducey signed into law hb 2810, which made sweeping changes to arizona’s forfeiture laws. Here are some of the highlights:

· property can only be forfeited after its owner has been convicted of a crime;

·. Property seized must be returned within ten days unless: a) the owner has been charged with a crime; b) the property seized is sought to be used as evidence; or c) it is illegal for the owner to possess the property in the first place;

· a person whose property has been seized may file a motion requesting a hearing, and is entitled to such a hearing within 30 days of filing such motion;

· the state has to prove by clear and convincing evidence that the property is subject to forfeiture;

·. The presence of possession of cash, without other indicia of another crime, is insufficient probable cause for seizure of the cash;

The law becomes effective 90 days after the current legislative session closes. There is likely to be substantial litigation regarding whether the law is retroactive and applies to pending cases. It is unknown if prosecuting agencies will honor the spirit of the law, but it is highly doubtful. These assets have funded salaries and other law enforcement amenities for years. It is expected that they will go down “swinging.”

There are some who have suggested that civil forfeiture laws are altogether unconstitutional. See https://harvardlawreview.Org/2018/06/how-crime-pays-the-unconstitutionality-of-modern-civil-asset-forfeiture-as-a-tool-of-criminal-law-enforcement/. In 2017, justice clarence thomas wrote a scathing concurrence in a civil forfeiture matter when the supreme court declined to hear the case of lisa olivia leonard, who had over $200,000 in cash confiscated from a traffic stop in texas. Leonard v. Texas, 137 s.Ct. 847 (march 6, 2017, j. Thomas, concurring). “this system,” thomas wrote, “where police can seize property with limited judicial oversight and retain it for their own use— has led to egregious and well-chronicled abuses,” citing various examples and the eye-opening article written by sarah stillman. Id. At 848 citing stillman, taken, the new yorker, aug. 12 & 19, 2013, pp. 54–56.

Thomas further criticized how “forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings,” who in turn are “more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.” thomas notes that leonard’s petition, “asks an important question: whether modern civil forfeiture statutes can be squared with the due process clause and our nation’s history.” id. At 847. Because leonard raised the due process issue for the first time in her petition, however, certiorari was denied. Id.

Some defend asset forfeiture as an important tool for law enforcement. With abuses making headlines, states have begun to enact increased forfeiture protections. At least fifteen jurisdictions now require a criminal conviction before a civil forfeiture proceeding. Three have eliminated civil forfeiture altogether. Regardless of what the future holds, hb 2810 makes important reforms to arizona’s forfeiture laws to protect innocent property owners from government abuse. Cinco de mayo was a historic day for criminal justice reform in arizona.

[1] most forfeitures in arizona are never contested. See for example attorney general seizure report, third quarter 2018, http://www.Azcjc.Gov/fy18-seizure-and-forfeiture-report-3rd-qtr (showing that all attorney general forfeiture matters during this period were either not contested, or were resolved via a plea agreement.)