It was an old slogan of the gangster-era FBI: Crime doesn’t pay. Woody Allen probably got closer to the truth: “I think crime pays. The hours are good, you travel a lot.”
How else do you explain the $2.6 million, most of it in cash, that Utah law enforcement took off suspected criminals, the vast majority of them drug dealers, in 2017 alone?
The seizure of that much property, often before a criminal conviction, raises obvious concerns about whether law enforcement is on some sort of frantic cash grab.
The reality, however, is that Utah laws protecting people from being stripped of their cash or property improperly are actually pretty rigorous and have been made considerably more so in recent years.
Since 2000, Utah has prohibited law enforcement agencies that seize money or property from keeping the proceeds — removing the incentive for police to take someone’s cash so they can buy a new copy machine or police cruiser.
Instead, the money goes into a fund administered by the Utah Commission on Criminal and Juvenile Justice, which awards it through a series of grants.
Salt Lake County District Attorney Sim Gill said his office has used such grant money to buy naloxone kits to treat people overdosing on opioids; it’s gone to drug court and veterans court; it’s gone to train law enforcement on when to use deadly force and when not to; and it’s provided services through the Rape Recovery Center.
“It was important for me to take that money and reinvest it in support services in the community,” Gill said.
Reform advocates, like the Libertas Institute, a libertarian think tank that has been instrumental in tightening Utah’s forfeiture laws, wants to see every forfeiture tied directly to a criminal conviction.
It makes sense. If prosecutors can’t show there was a crime committed, how can they prove the money or property was the ill-gotten gains of a criminal enterprise?
In the vast majority of cases — 87 percent according to the latest data — there are criminal charges filed, and that’s how it should be.
The problem arises in petty drug cases, where cops take a couple hundred bucks off someone suspected of being a part of a drug ring, say in Pioneer Park, but nobody wants to try to claim the money. Or, as is often the case, it would cost a lot more to hire an attorney to get the money back than it would be worth.
After all, the average amount seized was just over $1,000, not exactly kingpin money, and in nearly two-thirds of all of the forfeiture cases in 2017, the seizure was never contested.
Then there are a handful of criminal cases where the suspect walks. Of the 334 cases in 2017, one defendant was acquitted and another 15 cases were dismissed (74 other cases are still pending).
Again, Utah law gets it right. All 16 of those defendants are entitled by law to get every penny back, plus whatever they paid an attorney for the civil fight.
In December 2016, police stopped a black pickup truck with Missouri plates near Park City. The man said he was in town to meet a girl he’d chatted with online, but a police dog detected narcotics and officers found 68 pounds of marijuana in four secret compartments and $37,000 in cash.
Troopers impounded the truck and seized the money and the drugs. But after seeing video of the traffic stop, the county attorney’s office decided not to press criminal charges and dropped the forfeiture case, meaning he got his money (which sure looks like it was drug money) back.
Whether that feels like the right outcome or not, legally, that is how our system should work.
There is one area where Utah could do better.
Currently, federal law enforcement can demand that state entities turn over assets, either through a search warrant or seizure warrant.
But the federal system has far less protections than the state system does. For example, the feds kick back 80 percent of the value of any forfeited property to the local law enforcement agency — again, that creates a troublesome incentive.
That issue is central to a case before the Utah Supreme Court.
A man named Kyle Savely was stopped in 2016 by Utah Highway Patrol troopers who seized a gym bag with a half million dollars. Instead of going through the forfeiture process, UHP gave the money to the Drug Enforcement Administration, which said it had an ongoing investigation into Savely. So far, Savely has never been charged with a crime associated with the traffic stop or that big pile of cash.
“The cynic in me says what happened here is: It’s a lot of money, [UHP] wanted to avoid the court and alerted DEA and wanted to circumvent proceedings so they can get their 80 percent,” Justice Deno Himonas said during oral arguments on the case in April, according to a report by FOX 13.
The justices should rule before long on the Savely case. However they come down, Utah lawmakers should ensure, to the extent possible, that the protections in Utah law also apply federally.
State law already says that courts cannot authorize agencies to transfer property to federal law enforcement if it would “circumvent protections of the Utah Constitution” or state law.
Utah’s Legislature should take the next step and require that the state portion of any federal forfeiture go to the grant pool and not the local law enforcement agency.
Make no mistake: Taking someone’s cash or property is not something that should be done lightly. There have to be protections and a process for people to contest the action and a diligent eye toward avoiding abuses.
But because of the efforts in this state since 2000, Utah’s laws on asset forfeiture could be looked at as a model for other states to follow. It just needs a little tweak.
