Arizona Lawmakers to Cops: You Should Convict People Before You Take Their Stuff

Civil forfeiture reform failed last year. But now more legislators are on board.

Arizona is poised to require police to actually convict somebody of a crime before seizing the defendant's property.

On Wednesday, Arizona's House of Representatives passed H.B. 2810 by a vote of 57–2. The bill mostly eliminates civil asset forfeiture, mandating that police and prosecutors convict defendants before asking a court to take their money or other property.

Civil asset forfeiture has been sold to the public as a way of separating wealthy criminals from their ill-gotten gains and using that money to help fight crime. But the reality is very different. The "civil" component of asset forfeiture allows law enforcement to force people to surrender their assets to them, often without ever having to prove they committed a crime. Sometimes they have been able to take somebody's property without even charging them. In many states the property goes directly to law enforcement agencies, creating a twisted incentive for police to pad their budgets by forcing forfeitures whenever possible, even with little or no evidence of wrongdoing.

The Institute for Justice, which tracks the use of civil asset forfeiture across the country, has given Arizona a D- for its forfeiture program, noting that because all of the proceeds go to law enforcement, it's prone to police profiteering.

"The median cash forfeiture in Arizona was $1,000," says Paul Avelar, managing attorney for the Institute for Justice's Arizona office. "When half of your cash forfeitures are less than $1,000, it is not a tool that is 'targeting' cartels. And this is such a low figure that most people will, rightly, realize the costs of fighting back are prohibitive. But lots of small forfeitures can mean big money: Agencies took in $24 million in fiscal year 2019 alone."

For the past several years, criminal justice reformers have been working in various states to change forfeiture laws. Arizona passed reforms in 2017 to require a higher evidentiary threshold for a forfeiture and to keep law enforcement officials from evading state restrictions by partnering with the Department of Justice and funneling the money through the feds (a workaround that happens regularly in many states).

But even those reforms allowed law enforcement to seize property without having to convict people of a crime. In 2020, a Republican state senator attempted to change the law to require a conviction first. His bill sailed through the state Senate than hit a bizarre snag in the House of Representatives: Democratic lawmakers opposed it, even though the targets of civil asset forfeiture abuse are often poor people and immigrants who lack the resources to fight back. Some of them said outright that police agencies needed the revenue amid the budget crisis caused by COVID-19 disruptions.

Now that states are getting more of a handle on COVID-19, lawmakers seemed more willing to consider the bill. H.B. 2810 is also sponsored by a Republican—Travis Grantham—but the Democrats are not resisting it this time. (Well, most of them aren't. Both "no" votes were Democrats: Reps. Jennifer Pawlik and Judy Schwiebert.)

The bill now goes to the Senate, which approved last year's incarnation of the legislation.