Three steps backward, two steps forward.
Last year, the Utah legislature voted unanimously to make it easier for cops to seize innocent people’s property. Lawmakers passed HB 384, which drastically weakened legal safeguards against civil forfeiture. Unlike criminal forfeiture, civil forfeiture allows police to seize and forfeit cash, cars and homes from people, even if they were never convicted of a crime.
The Libertas Institute, a think tank based in Utah, issued a report last December that detailed how HB 384 gutted protections for innocent owners. As Libertas’ president, Connor Boyack, explained, that bill “was presented to lawmakers in the closing days of the legislative session when the frenetic pace decreases attention to detail…lawmakers were duped.”
In turn, that report inspired a bill, SB 256, which restored many of the safeguards that were undermined. Oddly enough, the Utah legislature also unanimously approved this reform bill. Gov. Gary Herbert signed it in late March.
First, SB 256 reinstates a deadline to file. After seizing property, prosecutors must file court papers within 75 days to keep it. If they don’t, the government has to return the seized property to its owner. Previously, prosecutors weren’t obligated to return seized property, even if they missed the filing deadlines.
In addition, SB 256 brings back a ban on transferring property to the feds if the transfer is intended to circumvent the Utah Constitution. Through “equitable sharing,” local law enforcement can collaborate with a federal agency to bypass state law. Instead of trying to forfeit the property under state law (which may have more protections for property owners), equitable sharing lets local and state law enforcement agencies forfeit the property under federal law instead.
They’re even rewarded for doing an end run around state law: By participating in equitable sharing, law enforcement can earn up to 80 percent of what the forfeited property is worth. In fiscal year 2008 (the most recent available year), Utah police received over $1.5 million in equitable sharing proceeds.
Utah’s latest forfeiture reform law restores language declaring, “the court may not authorize the transfer of property to the federal government if the transfer would circumvent the protections of the Utah Constitution.”
While most of HB 384 has been roll backed, one key provision regarding attorney fees was not. Courts must once again award victorious property owners attorney fees if they win a case. (Under HB 384, it was optional.) But the size of these attorney fees awards is still capped at 20 percent of the value of the taken property. In many civil forfeiture cases, going to court can cost more than what the property itself is worth. That keeps property owners from flexing their rights.
Restoring Utah’s forfeiture laws to what they were before they were gutted is certainly good news. Yet even before HB 384, Utah lawmakers had already weakened the state’s forfeiture laws back in 2004, by partially overturning a ballot initiative that passed with almost 70 percent of the vote.
But it’s also a welcome contrast to other states where forfeiture reform bills have either died or face an uphill battle, like in Georgia, Maryland and Michigan. To better protect property rights and civil liberties, Utah lawmakers should build on the forfeiture rollback and end civil forfeiture.
— Nick Sibilla
Nick Sibilla is a writer at the Institute for Justice