Police and prosecutors are abusing asset forfeiture laws as a means of enriching their agencies, paying their salaries and buying their equipment, according to a new study from the Phoenix-based Goldwater Institute.
The profit motive for seizing property from people, who typically are never convicted of a crime, is driving decisions to proceed with asset seizures in a constitutionally dubious way, according to Tim Keller, co-author of the report.
But the assistant state attorney general who helped craft Arizona’s forfeiture laws says there is no profit incentive for seizing property. Forfeiture money that is being used by police and prosecutors is just another source of revenue available to city and town councils, county supervisors and the Legislature to combat crime, said Cameron Holmes of the Arizona Attorney General’s Office. If forfeiture money dried up, police departments and prosecuting agencies would continue to be funded by other sources of revenue, he said.
Forfeiture laws allow police to seize cash and assets they believe were used to help facilitate certain crimes, most often drug offenses, or if they believe things such as cars, guns or houses were purchased with illegally obtained funds. Arizona’s law has long drawn complaints from civil libertarians — both liberal and conservative — that forfeitures allow the government to unconstitutionally seize private property and unfairly target people who were not involved in criminal conduct.
In 1993, the Tribune published a six-day series on asset forfeiture. That seven-month investigation found that, statewide, police and prosecutors raked in about $21 million annually at that time from forfeitures. A review of more than 4,000 civil and criminal cases involving nine East Valley, county and state agencies also showed that nearly three-fourths of the people who lost property in forfeiture cases were not charged with any crime related to the seizure.
The Goldwater Institute study, which relied heavily on the Tribune investigation, concluded little has changed in the last 10 years. In the past four years, forfeitures have generated about $64.5 million for state and local law enforcement agencies, according to the report.
In that same four-year period, agencies have used about $11 million on salaries and other compensation of employees, which is the most blatant example of how they are driven by profit rather than justice, according to Keller, executive director of the Arizona chapter of the Institute for Justice, a nonprofit public interest law firm.
The institute is looking for people who believe they have been unfairly targeted in a forfeiture to bring a case challenging the state law in court, Keller said.
"The fact that the Arizona scheme injects a profit incentive into the mix certainly creates the possibility of bias into the equation of whether to prosecute these cases," Keller said. He added that forfeiture would be acceptable just in the cases of those who have been convicted of crimes.
Short of repealing forfeiture laws, the best way to take away the profit motive of police and prosecutors is for the Legislature to require all revenue from seized assets, beyond the direct cost of investigating and prosecuting criminal cases, go to the general fund of the city, county or state, Keller said. That would remove the direct profit motive of agencies, which are currently allowed to keep the proceeds from their seizures, he said.
But Holmes counters that there already are safeguards to ensure seizure cases are not profit-driven. State law does not allow personnel involved in deciding whether to seize property to be paid through forfeiture money, he said. The salaries of those who do make the decisions are not tied in any way to how much is seized, he said.
When governing bodies such as city councils allocate budgets, they view revenue from seized assets as an available pot of money, Holmes said. If there was not money in the forfeiture accounts, general tax revenue would be spent, he said.
"There is no police department in America that is unfunded, even though there are many that don’t do civil forfeitures," Holmes said. "In reality, their budgets are not higher than they would have been without the forfeitures."
Keller and Holmes are scheduled to debate the findings of the report Tuesday in a forum sponsored by the Goldwater Institute. The forum, which is free and open to the public, will begin at noon at the institute, 500 E. Coronado Road, Phoenix. For further information contact the Goldwater Institute at (602) 462-5000.
Forfeiture spending by East Valley and county agencies over the last three years (2000-03).
• Maricopa County Attorney: $2,912,255
• Maricopa County Sheriff’s Office: $1,347,959
• Chandler Police Department: $1,331,255
• Mesa Police Department: $1,511,397
• Scottsdale Police Department: $1,909,453
• Tempe Police Department: $1,290,845
Source: Goldwater Institute study based on disclosure reports and other public records. Data on other East Valley agencies was not listed in the study.