Utah lawmen and prosecutors are, by and large, obeying the law when they seize a suspected criminal's car or cash as part of their criminal behavior, the state's legislative auditor general says.
But while Utahns civil and individual property rights are not being violated, several local law enforcement agencies are not handling their forfeitures well. And lax handling of the assets are giving critics of the process ammunition, a study of the state's asset forfeiture law by Legislative Auditor General Wayne Welsh's office shows.The report likely won't silence a growing number of critics -- many of whom cite constitutionally protected rights of disposal of property -- who say law officers use the law to take cars and other assets from law-abiding citizens innocently caught up in a criminal case or take the property of suspected criminals before they are convicted in a court of law.
In saying the law is not overtly abused, Welsh did find some agencies -- who can benefit financially from seizing cars and cash from suspected criminals -- need to follow guidelines more carefully.
If fiscal 1999, $729,000 was seized across the state, Welsh noted. While most cases just involve taking a car used in the drug trade, Sandy police once found $866,000 in cash and three refrigerators full of marijuana in a storage shed in a drug bust.
Horror stories abound over property seizures. And Rep. Bill Wright, R-Elberta, who has been a staunch defender of constitutional rights on a number of issues -- has worked on an asset forfeiture bill for several years without success.
The Utah Supreme Court ruled in 1998 that it is not "double jeopardy" for a person's property to be seized while at the same time he is charged in a criminal action.
Welsh says many claims by opponents of the current law are greatly exaggerated.
But there are concerns, mostly dealing with how property was handled after it was seized, not whether it was legally seized in the first place.
For example, Welsh said some law enforcement agencies charge a vehicle impound fee after a court has denied a forfeiture request on the car. So the owner still has a large impound fee to pay.
And while Welsh's auditors could ultimately account for all the property seized in the 65 cases, they noted that officials in one law enforcement agency (not named in the public report) had spent some of the cash they seized before it was legally forfeited to them.
Another agency lost some items from its evidence room, lost seized cash and retained seized property even though forfeiture against the property was not filed in court by the required 90-day deadline.
Welsh recommends that each county attorney in the state appoint one deputy attorney to oversee all of the county's forfeiture work.
Also, no law officers should individually be allowed to buy from the county property that their agency seized.
Finally, all seized property must securely be stored, and contraband (like drugs) and hazardous materials should quickly be destroyed if they aren't needed as evidence.
State law says that before a court can forfeiture property to a law enforcement agency, the agency must prove that it really needs the asset. That requirement is rarely followed, Welsh said.
The law is confusing in another way. Critics of the system have claimed -- wrongly -- that all forfeitures must be deposited with the state's Division of Finance. That is not a requirement, although lawmakers may want to make it one, Welsh said.
Since a number of court-ordered forfeitures are directly spent by the law agencies, without the asset ever coming to the state, critics have claimed law officers are taking property just to help their own agency budgets.
State law says forfeitures can only come in narcotic cases. Yet it appears some cases may push that rule. And forfeitures can not be used to pay informants. Yet that aspect may have been bent, also.
Mostly, said Walsh, the rules need to be clearly defined and followed by a number of law agencies.
"Agencies often don't treat proceeds from asset forfeitures as restricted accounts" and may mingle agency funds together, Welsh reported.
To stop huge amounts of forfeiture assets building up in agency, Welsh recommends that some kind of cap be placed on the assets, some time frame imposed in which the money must be spent.
Lastly, since some law agencies haven't managed their forfeitures well once they got a hold of them, Welsh says some outside group -- like the state's Commission on Criminal and Juvenile Justice -- be given the power to oversee the whole process.