New Data Shows Utah Law Enforcement Overwhelmingly Prefer Civil to Criminal Forfeiture

A first-of-its-kind report by the Utah Commission on Criminal and Juvenile Justice released on July 1 found that local and state law enforcement agencies have obtained millions in funding by confiscating cash and cars. Out of nearly 400 asset forfeiture cases in Utah last year, 94 percent were handled under a process called civil forfeiture. Only six percent of forfeiture cases ended with a guilty plea or criminal verdict in a criminal forfeiture proceeding.

Unlike criminal forfeiture, civil forfeiture does not require a criminal conviction or even criminal charges to permanently confiscate someone’s property. Since the latter is litigated in civil court, the standard of proof to forfeit property is lower than the “beyond-a-reasonable-doubt” standard used to secure criminal convictions.

Almost all forfeiture cases in 2015—97.5 percent—were related to alleged drug offenses, with possession with intent to distribution and distribution offenses being the most common. Cash was overwhelmingly the most popular type of asset forfeited to law enforcement, accounting for 86.4 percent of cases. Cars and firearms rounded out the remainder, at 12.2 and 1.1 percent respectively. In 2015, all cash forfeitures amounted to more than $1.88 million. Yet half of all forfeitures were under $1,324, while amounts as low as $50 were seized.

“A person whose property is taken—without any criminal charges involved—is unlikely to spend thousands of dollars to hire an attorney and reclaim that small amount,” said Connor Boyack, president of the Libertas Institute in Utah. “This creates an incentive for police and prosecutors to take small amounts of property without a fight.”

According to the Commission’s report, in only 13 percent of cash forfeiture cases, were property owners able to recover at least a portion of what was taken from them. But the report does not indicate “how many cases included a successful criminal prosecution of the individual(s) charged.” Since 2004, law enforcement agencies have collected $13.8 million in state forfeiture funds.  Moreover, under state law, agencies may retain all forfeiture proceeds.

With this report, Utah is now just one of three states that distinguishes between civil and criminal forfeiture for its recordkeeping. In the other two, Oregon and Connecticut, 57 and 69 percent of forfeiture cases were litigated civilly, according to a report by the Institute for Justice. Similarly, on the federal level, 87 percent of forfeiture cases proceed in civil court.

Reforming forfeiture laws has been a contentious fight in Utah. In 2000, nearly 70 percent of voters backed a ballot initiative that put strict limits on retaining forfeited proceeds. As I recounted for Forbes.com in 2013,

Without the incentive to police for profit, “since the passage of the initiative, forfeitures have all but stopped,” the Deseret News reported in 2003.  Tellingly, this was also evinced by one of the prosecutors who initially refused to respect the will of the voters.  After agreeing to abide by Initiative B, Salt Lake County District Attorney David Yocum remarked “Doing forfeitures is [now] way down the line in my priorities.”

But that victory was short-lived.  In 2004, after heavy lobbying from representatives of law enforcement, the Utah legislature voted in favor of SB 175 and rolled back several reforms enacted by Initiative B.  SB 175 was the first time in decades a citizen ballot initiative had been overturned by state lawmakers.

In 2013, lawmakers “unknowingly gutted” reform, as they unanimously passed a bill that weakened many procedural safeguards. But after the Libertas Institute publicized it, many of those alterations were reversed.

More recently, in 2015, lawmakers passed a bill to require annual reports, which led to the forfeiture report released by the Utah Commission on Criminal and Juvenile Justice. Earlier this year, a bill that would have re-directed forfeiture revenue to a state school fund passed the House but died in the state Senate.

“Next year, state legislators should follow New Mexico, Nebraska and nine other states that make a conviction in criminal court a prerequisite to forfeiture,” said Lee McGrath, legislative counsel for the Institute for Justice. “No one acquitted in criminal court should lose their property through forfeiture in civil court.”

JOIN THE FIGHT!   Sign up for newsletters:

JOIN THE FIGHT!