March 2, 1996
To: F.E.A.R.
The Utah Legislature has made existing bad AF law worse as of 2/28/96. The governor has not yet signed and I might stand a chance of dissuading him. But the Legislature deserves to be accountable for their knowingly perfidious action. Below is a guest editorial that I will attempt to have published in the Ogden-area paper.
Arnold
March 1, 1996
With virtually no debate nor press coverage, the Utah Legislature on the final day of the 1996 session overwhelmingly passed Senate Bill 253, Asset Forfeiture in Controlled Substance Violation. From its innocuous-sounding title, few would likely realize that this bill discards traditional standards of justice in favor of near-dictatorial police power and virtual elimination of due process protection for the innocent. It perpetuates and worsens existing state law in the area of asset forfeiture.
Asset forfeiture is a clever scheme that has seen dramatically increased use over the last several years. Its underlying concept is that private property, not people, are responsible for crime. When property allegedly furthers criminal activity, title transfers at that moment from the property owner to the state. The state may then seize the property, and a simple forfeiture proceeding in civil court makes the transfer of title official.
The insidious consequences of this can be demonstrated by a couple of examples. In the first, a person traveling in his recently acquired used automobile encounters a police check point. At the check point his car fails inspection by a drug-sniffing dog. The car may have trace amounts of illicit drugs in the carpet from the activities of a previous owner, unknown to the most recent purchaser. Nonetheless, the car is seized by the state, never to be seen again by its owner, who is never charged with any criminal act.
A second scenario involves an elderly couple who own a duplex as a means of support. During a building code inspection, the inspector notices what appears to be evidence of drug paraphernalia in one of the units. A referral is made to the police, and they move in and seize the duplex.
In both situations, the only chance the owners have to regain their property is to go to civil court and prove that their property, not themselves, is innocent of any wrongdoing. The odds are greatly against them since in civil court there is no right to an attorney, their property is presumed guilty, hearsay evidence may be used against the property, the state need only prove its case by a preponderance of the evidence (the lowest proof standard), and if they prevail, attorney fees are not returned to them.
On the other hand, the police have great pecuniary interest in the outcome of a forfeiture case, since they keep the property once the proceeding has been completed. This egregious conflict of interest is worsened by specific immunity for malfeasance or nonfeasance that is granted to them in forfeiture cases.
While few private citizens would agree that justice is served by depriving the innocent of their property, the Legislature of Utah overwhelmingly disagrees. Fortunately a direct method of legislator accountability is provided within the Utah political system. The upcoming neighborhood political caucuses and subsequent county conventions provide a powerful opportunity to determine where your local politician stands on the issue of asset forfeiture. The concerned citizen should avail himself of his opportunity and right of participation in these events, and by voting where necessary to replace his legislator.
Arnold J. Gaunt
Arnold Gaunt is Utah Coordinator for Forfeiture Endangers American Rights (FEAR), a nationwide asset forfeiture reform organization.