Utah's Asset Forfeiture Assault on the First Amendment

Last year, Utah legislators passed without debate or opposition HB 384, a bill that gutted the initiative reforms that had been made to Utah's asset forfeiture laws by citizen initiative in 2000. Fortunately, our colleagues at the Libertas Institute picked up on this, and published an analysis criticizing the law:

A 2000 citizen initiative that passed by 69% of the vote in Utah introduced substantial restrictions on asset forfeiture—the process whereby the government seizes a citizen’s property—but several key provisions were overturned unanimously by the legislature in 2013 after lawmakers were told that the bill was a simple “recodification.”

The initiative was created in large measure to prevent law enforcement agencies from directly profiting from the property they seized, as this financial opportunity created an incentive to seize property. The legislature amended the law in 2004 introducing some minor changes, including allowing proceeds from seized property to be funneled back to the agencies through the Commission on Criminal and Juvenile Justice instead of being deposited in the Uniform School Fund.

In the 2013 legislative session, HB384 gutted many of the important protections introduced through the 2000 initiative, and left in place by the 2004 amendments. Sponsored by Representative Dee and Senator Bramble, the bill was pitched to colleagues as a simple “re-codification” of existing law—a “clean up bill” with little to no substantive changes being made. In the rush of the last days of the session, with likely few (if any) legislators reading over 50 pages comprised heavily of new text, and with the assurance of the bill being a re-codification, both chambers unanimously approved the bill.

The Utah Attorney General's office was quick to respond with a brief defending the changes in the law. Most notable is the bullet point justifying the new cap on attorney's fees recoverable by a person who successfully defends their property from forfeiture (emphasis mine):

HB 384 caps the amount that an attorney may obtain if an attorney prevails in a forfeiture action. Previously, the statute allowed prosecutors who litigated forfeiture cases on behalf of the State to obtain attorney’s fees in an amount up to 20% of the amount forfeited. Now this same cap also applies to a claimant’s attorney. By setting a limit on attorney’s fees it will take away the incentive for attorneys who actively promote the legalization of drugs in the state of Utah from soliciting clients who are engaged in criminal activity. A cap on attorney’s fees will encourage litigants to resolve cases in the best interests of their clients rather than in the best interests of the attorneys.

In other words, the Utah Attorney General believes that this provision exists to undermine a group of people deliberately classified by their participation in First Amendment protected activities. 

Defense attorneys serve as a vital channel for information in a democratic society. As the trained advocates who hold the government to account in the prosecution of criminal investigations and civil forfeiture, they have a unique and sometimes solitary view of the exercise of government power. To restrict their participation in the legal system is to undermine an array of fundamental rights of a civil society, and represents a nakedly authoritarian use of power. 

Drug policy reform advocates should understand the existential threat that civil forfeiture thus poses to a free speech, the fundamental tool in any reformer's toolkit.

Addendum: The Libertas Institute published a response yesterday to the AG's response, here.


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  • commented 2014-01-16 20:04:04 -0600
    What part of “The people have spoken.” do they not understand? In Arizona we passed a voter initiative to prevent the legislature from making changes to voter initiatives without a 3/4 majority. In Arizona it is next to impossible for the legislature to agree on anything much less to get 75% to overturn an initiative without upsetting a lot of voters.