TIM KELLER

Police Should Pursue Justice, not Profit

In 2002, Carol Thomas of New Jersey made national headlines after her teenage son used her 1990 Ford Thunderbird to sell marijuana to an undercover police officer. He was arrested, pled guilty and faced his punishment. But that did not end the case. The government also confiscated Thomas’ car, despite the fact that no drugs were found in the car, she was the sole owner, and she had no knowledge of her son’s use of the car to sell illegal drugs. The government’s action was in accordance with a legal doctrine known as civil asset forfeiture, which allows police and prosecutors to confiscate property that has been used in a crime without ever filing criminal charges against the property owner. 

The Institute for Justice Arizona Chapter and the Goldwater Institute have partnered to conduct a first-of-its kind analysis of the profit incentives that drive civil asset forfeiture in Arizona. The findings show that civil asset forfeiture is one of the most serious assaults on private property rights in Arizona today. Under Arizona’s forfeiture law, prosecutors and police keep confiscated money and property, giving them a direct financial stake in the outcome of forfeiture proceedings. This financial incentive to confiscate property threatens to divert law enforcement priorities away from the administration of justice and toward the pursuit of profit.

Perverting law enforcement priorities is a violation of both the U.S. and Arizona Constitutions’ Due Process clauses, which require law enforcement officials — both prosecutors and police — to administer laws fairly and impartially.

Over the past four years, state and local law enforcement agencies have generated $64.5 million in revenue from forfeiture cases. For many agencies, asset forfeitures constitute a sizable percentage of their budgets. For example, in 2002, the Arizona Attorney General’s office obtained more than $2 million in forfeiture revenue, most of which went to pay for regular salaries, overtime pay and medical benefits.  Statewide, nearly one of every five dollars received from confiscated property — almost $11 million—went directly into the pockets of prosecutors and police in the form of employee compensation. To be sure, law enforcement officials should be paid well. But when compensation becomes dependent on forfeiture revenue, it may compromise officials and the just application of the law.

Pima County is a prime example. Between 2000 and 2003, Pima County doubled its forfeiture revenue, growing from around $2.5 million to just over $5 million. In that same time, Pima County’s Counter Narcotics Alliance went from no reliance on forfeiture dollars to over $1 million in revenue. And in just one year, Pinal County’s forfeiture spending leapt 200 percent, from less than $500,000 to close to $1.5 million.

What does all this confiscated property pay for?  Forfeited funds covered $24,000 in advertising expenses, purchased a $30,000 digital camera, and one agency spent close to $60,000 on weapons. Property seizure is an easy means of raising revenue and expanding budgets for such high-dollar items. However, the law creates an incentive for law enforcement to confiscate more, and not necessarily do so fairly. In the end, both law enforcement — and the law — get short shrift. While law enforcement is a legitimate government expense, and properly funding police should be a priority, law enforcement agencies should not rely on forfeiture funds to increase their budgets.

The U.S. and Arizona constitutions prohibit statutory schemes that create bias, the potential for bias, or even the appearance of bias in the administration of justice. Law enforcement deserves to have its primary responsibility of enforcing the law fairly restored by removing the profit motive built into Arizona’s civil asset forfeiture scheme.  Policymakers should repeal Arizona’s laws that enable law enforcement to profit from confiscated property. The encouragement to law enforcement officials to pursue profit rather than impartially pursue justice is the most pernicious and dangerous aspect of civil forfeiture laws, and it must be stopped.

Tim Keller is the executive director of the Institute for Justice Arizona Chapter, a nonprofit-public interest law firm dedicated to restoring constitutional protections of private property rights and the author of a new Goldwater Institute study Policing and Prosecuting for Profit:  Arizona’s Civil Asset Forfeiture Laws Violate Basic Due Process Protections.

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