Asset forfeiture, or legal looting

This wasn't supposed to happen here

[Reprinted from Issues & Views January 5, 2004]

Asset forfeiture, the policy that gives law enforcement officials incentives to abuse the rights of citizens by confiscating property [see "Empowered to steal"] continues on in 2004, but not totally unabated.

While law enforcement officials in Scotland County, Missouri, salivate over the prospect of getting their hands on the property of accused drug dealers Jerry and Brenda Cochenour -- three automobiles, $34,000 bank account and 242 acres of land -- officials in Ogden, Utah, scheme to overturn the people's choice.

Last year, in Utah, citizens decided they had watched enough legal confiscation of property, especially when said property was seized from people not even convicted of crimes. So, voters passed "Initiative B," which puts restrictions on the taking of property from suspected lawbreakers. Initiative B adds layers of due process in criminal and civil prosecutions.

Now, the state's Deputy Attorney General Kirk Torgensen is going to the legislature to get Initiative B overturned on the grounds that Utah legal agencies are losing revenues and that the Initiative is preventing law enforcement from "winning the drug war." Previously, Utah received an 80% share of any loot seized by federal agents in the state. Now those proceeds go elsewhere. People like Torgensen are smarting, especially over the recent arrest of a suspect that has the potential of rendering $500,000 in seized property. The police are eager to have a share of the bounty.

The Associated Press (12/5/03) reports that Torgensen, police chiefs and other officials have been touring the state to test the waters for a new proposed bill that would do away with Initiative B. Picking up on the popular platitude of the day, Torgensen claims that the war on drugs is a "battle between good and evil," calling those who voted for the Initiative "perpetrators of a fraud."

In disagreement is Bert Smith, a major proponent of Initiative B, who says of Torgensen, "This guy's the fraud if he doesn't believe in the Constitution. [Initiative B] stands for nothing more than due process of law." Torgensen's claim that Initiative B is impeding the war on drugs Smith calls "a total lie." He says, "They can have all the money they can get out of a convicted drug dealer through due process, upon conviction."

The Institute for Justice, the public interest law firm that assists citizens in cases of forfeiture abuse, put Utah's law enforcement officials on notice that they would be expected to abide by the conditions of Initiative B.

IJ's Scott Bullock maintains, "The Institute for Justice has long argued that when law enforcement officials are entitled to keep forfeiture proceeds for their own use, it corrupts their priorities and creates a perverse incentive to take property away from its rightful owners. Giving law enforcement officials a direct financial stake in the outcome of forfeiture proceeds is not only terrible public policy, it violates the Constitution as well. In the first decision of its kind, a New Jersey court in 2002, in a lawsuit brought by IJ, held that the state's civil forfeiture law, which, like Utah's old law, permitted law enforcement officials to profit from the law's operation, violated the due process rights of the state's citizens."

Deputy Attorney General Torgensen promises that his proposed bill will be minus some of the old abuses, like sweeps of innocent property owners who have nothing to do with a suspected drug dealer, yet find that their possessions have suddenly turned into legal loot. And like safeguards for a high standard of evidence before completing forfeiture proceedings.

The manner in which seized property is discussed by these officials is kind of chilling. In reference to the prospective $500,000, Torgensen is quoted by the AP as saying, "In our draft bill, that would be Mike's $500,000." He is referring to Mike Ashment, commander of the local Narcotics Strike Force, whose agents arrested the suspected drug dealer. As it now stands, the seizure will go to the federal government. It's something like watching a battle between competing opponents over turf and who gets to stake the first claim. It's not surprising that these bureaucrats cannot wait for due process or for the time it takes for an actual conviction to be processed.

At the moment, things are not looking up for Torgensen and the police, and they have been advised by their supporters to delay the presentation of their bill in this year's legislative session. As this is an election year, they have decided that it might not be an appropriate time to "go against the voters' wishes," or to attempt to undermine a measure that passed with almost 70% of the vote. In the meantime, Torgensen plans to keep up the statewide touring, while making his case to civic groups, and he is prepared to wait for the 2005 legislative session, if necessary.

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