PHOENIX — Gov. Doug Ducey is cutting off what some say has been an easy — and unethical — source of money for police and prosecutors.
The governor has signed legislation saying that property ranging from cash and homes to cars and cellphones can be seized and sold off only after the owner actually has been convicted of a crime.
That is a far cry from the law until now which requires only that they convince a judge in a civil proceeding that the property is tied to criminal activity. And that has a lower burden of proof than “beyond a reasonable doubt,’’ the standard to convict someone of a crime.
Ducey said that’s not right. More to the point, he said it’s probably unconstitutional.
He pointed out that the Arizona Constitution, unlike its federal counterpart which protects against unreasonable search and seizure, has a specific right to privacy.
“I have a constitutional responsibility to provide a balance between those rights and ensuring that law enforcement has the tools necessary to protect our state,’’ Ducey wrote in explaining his decision to sign the bill. “HB 2810 provides this balance.’’
The decision to sign the measure came over the objections from prosecutors and police who insisted that it will hamper their efforts to go after criminal enterprises, particularly those which smuggle drugs into Arizona and cash to Mexico.
In a letter to the governor, Yavapai County Attorney Sheila Polk and Sheriff David Rhodes say these organizations set up their operations so that it is virtually impossible to link cash seized to the drugs that are separately transported.
“As written, HB 2810 is a free pass to transnational multi-billion dollar smuggling organizations to prey on American citizens by simply keeping the money away from crime,’’ they wrote. “Sadly, it is a tremendous win for smuggling organizations, dramatically limiting law enforcement’s ability to prevent criminals from obtaining their ultimate prize — money.’’
Gilbert Police Chief Mike Soelberg, testifying before the House Committee on Criminal Justice Reform on behalf of the Arizona Association of Chiefs of Police, echoed similar sentiments.
“This is an invitation to criminal enterprises and trans-national criminal operations to operate in the state of Arizona,’’ he said. “Depriving criminals and criminal organizations of their ill-gotten gains is a mechanism to disrupt and dismantle and deter those who prey on individuals for financial gain.’’
There also were concerns that criminal operations would dispose of their assets in the time it takes to get a criminal case into court and get a conviction.
Ducey, however, pointed out that the measure does allow police to hang on to property even before a conviction if it is evidence of a crime. They just can’t sell it unless and until there’s a conviction.
And then there’s the financial side to all of this.
The law was used to seize close to $27 million in cash and property in 2019, according to Rep. Travis Grantham, R-Gilbert, who sponsored the legislation. And he said police and prosecutors love the law because they use the proceeds to supplement their own budgets.
“Some of these departments have began to this type of seizures and this type of practice to fund their agencies,’’ he told colleagues during legislative hearings. “To me it’s terrifying to think that, here we are, the ones that should be appropriating money to these folks to do their job, to do the good job of law enforcement, and we’ve created a system that incentives them, oftentimes, with regards to when they may take property from somebody, sell it and get to keep the proceeds.’’
Grantham said he does not doubt that police and prosecutors do use the law to go after major criminals.
But he said that of the nearly $27 million seized in 2019, more than half of that was made up of items worth less than $1,000.
“They took cash, cars, guns, cell phones, three glass pie dishes, an $18 Best Buy gift card,’’ he told colleagues during a hearing on the legislation.
“Some poor sap pulled over for whatever reason and has committed a crime and the next thing you know their $1,000 van is taken from them or the trailer they’re towing or whatever items they have in their possession,’’ he said. And Grantham said it even can occur just because someone was a witness to a crime, “which, believe it or not, happens.’’
“While it definitely captures some bad people, it destroys a lot of good people,’’ he said. “And I’ve always been of the opinion that in our country, if we’re going to do something that hurts one innocent person just because it gets 10 bad ones, we’re doing it wrong.’’
Adding insult to injury, he said, is that the system is set up to make it next to impossible for people to get their property back.
“Individuals have to prove that their property wasn’t involved in a crime,’’ Grantham said.
“And I think we all know, it’s very difficult to prove a negative, in our business especially,’’ he continued. “Well, that’s not how the system is supposed to work.’’
On top of that, Grantham said the process of going to court often involves having to hire an attorney.
”Oftentimes, the cost of hiring that lawyer may exceed the value of the property,’’ he said. “And you might be taking something from somebody that’s their only means of transportation or communication.’’
Polk and Rhodes, in their letter to Ducey, said they offered to put some limits into the existing laws. That included adding a provision requiring a minimum $10,000 threshold for the state to seize and forfeit currency.
Grantham, however, said that misses the point: It still would have allowed someone’s property to be taken without having to go to court and get a criminal conviction.
”That’s great for somebody whose asset is worth less than $10,000,’’ he said. But that still leaves the door open to seizure of cars and homes and cash.
”Their offerings, while they sound maybe reasonable on the surface ... they wanted no conviction requirement,’’ Grantham said. “And that was the heart and the meat of the bill.’’
This isn’t the first whack Ducey and lawmakers have taken at the forfeiture process.
A 2017 measure signed by the governor said prosecutors must provide “clear and convincing evidence’’ to a judge that property they want to seize is connected to criminal activity before they can seize it. That means either it was used as part of a crime or that it was acquired with proceeds from criminal activity.
Prior to that the law allowed seizure based on “preponderance of the evidence.’’ That is the lowest of all standards and means only that it is more likely than not the property is linked to a crime.
That 2017 law came about only after inquiries into whether officials in Pinal County had misused seizure profits and a guilty plea from a former top Pima County officials to misusing seized funds.