The obvious need for efficient law enforcement and its attendant societal benefits at times have an unfortunate side effect: they are cited as justifications for unjustifiable police practices.
Such is the case in Arizona with civil asset forfeiture, under which property or money or both may be confiscated by law enforcement officials from citizens without their ever having been convicted of a criminal offense — or even charged with one.
This practice flies in the face of the Fifth Amendment to the United States Constitution, which stipulates that "No person shall be . . . deprived of life, liberty, or property, without due process of law . . ."
Can it really be called "due process" when property targeted by police and prosecutors may be grabbed and its owner forced to try and gain its release through a court proceeding at his own considerable expense? Can it really be called "due process" when the legal standard allowing the government to keep such property for its own benefit is lower than that allowing it to impose a fine or incarceration?
And can it really be called "due process" when, even if the citizen prevails in winning most of his property back, if he fails to win all of it the government makes him to pay all the government’s court costs and attorney fees?
Imagine what the reaction of the citizenry would have been had such a scheme been tried in the days of the Founding Fathers. Shays’ Rebellion would have been a walk in the park by comparison.
But today Americans have become so inured to the excesses of immense and overweening government that many will be swayed by arguments for its necessity, such as those put forth in this section by state Attorney General Terry Goddard — himself a controller of one the "RICO" (Racketeer Influenced and Corrupt Organizations) funds fattened by civil forfeiture. Victims receive most of the money, he says.
And he pooh-poohs the notion that police and prosecutors’ privilege of retaining confiscated assets gives them an incentive to fatten the coffers of their agencies through forfeiture, asserting that their salaries "do not depend on their professional judgment about evidence."
Well, their salaries may not — but their budgets certainly do, as Goddard himself acknowledges. Even after victims are "made whole," forfeiture funds provide police with equipment worth millions of dollars, he notes — gear that would otherwise have to be paid for through taxes.
But taxation requires "the consent of the governed," while civil asset forfeiture requires nothing more than a hungry agency and a malleable magistrate. In the wake of an exposé series on forfeiture abuse by the Tribune’s Mark Flatten in 1993, the Arizona Legislature made a partial reform of the law. But as the Institute for Justice and the Goldwater Institute point out in the joint report mentioned in this section by Tim Keller, further reforms are needed.
And our legislators ought to make their consideration a top priority when they reconvene.