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Summary: The confiscation lobby is determined to destroy your property rights. Knowing why can help you see through their charades and stop them.

How much money are your rights worth? That is the question Utah Attorney General Mark Shurtleff is implicitly asking the citizens of Utah. General Shurtleff continues his crusade to obtain $6,000,000 from the United States Attorney General by attacking your rights to a fair trial and to own property.

In 2000, 69% of Utah voters approved Initiative B, designed to end the perverse incentives that enabled Utah law enforcement agencies to pad their budgets with confiscated property. Initiative B requires that proceeds from confiscated property go to the Uniform School Fund instead of police agency coffers, and also put important due process protections in place to protect innocent property owners.

Most importantly, Initiative B greatly restrains the ability of Utah's police to subvert Utah's Constitution and laws by restricting the transfer of property they seize to the federal government. Under federal forfeiture laws, guilt is presumed and innocence must be proved. Using an administrative (bureaucratic) procedure, the federal government can forfeit the seized property and return 80% of the proceeds from it to the seizing agency.

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Federal operatives have made it clear that unless Initiative B is gutted, police agencies will not receive millions of dollars now being held in reserve. These operatives insist that Initiative B be essentially repealed. They specifically wish to nullify the requirement that a state court approve any transfer of seized property to the federal government. This ensures that state constitutional and statutory protections are upheld for innocent owners. They also abhor the requirement that forfeiture proceeds obtained through federal "equitable sharing" be deposited with the State Treasurer, rather than to police budgets.

Rather than resist the federal government's political extortion, General Shurtleff has succumbed to the trappings of money and power — and your rights are the casualty!

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SB 31, General Shurtleff's attempt to repeal Initiative B, allowed police to bypass all state courts and protections and go straight to federal bureaucrats with your seized property. It also allowed police and Utah courts to receive proceeds from those corrupt federal transactions. Monies to police agencies would be funneled through Shurtleff's office, giving him the power to dole out these profits as he saw politically fit. SB 31 was, of course, extremely unpopular (See our quicksheet on SB31).

In General Shurtleff's own words:

"Now people said that we were misguided with Senate Bill 31. It was a work in progress. We were trying to take amendments; we were amending the thing until the last minute. John Valentine was trying to throw in things so that we may have missed something and that it was more than a burden than a protection of innocent property owners. And I kept saying, 'Let's fix that.' But I'm not out to try and gut anything or to throw away the will of the people. I'm just trying to do my job." (Interview on Jim Dexter Show, KTKK AM 630, August 5, 2003)

General Shurtleff's claim of not trying to "gut anything" are undermined by the secretive process used to generate SB 31, as well as its horrific content. The bill was hidden from public view until the last possible moment in the legislative session. Qualified proponents of forfeiture reform were excluded from the bill drafting process.

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Why does General Shurtleff try to destroy Initiative B? Simply follow the money…

A caller recently confronted General Shurtleff on talk radio, stating that, "The whole idea of forfeitures is to make money for police departments." Shurtleff responded:

"Wrong… I flat out disagree with you. That is not the purpose of forfeitures — to make money for police departments… The purpose of forfeiture and the purpose for every law enforcement I've spoken with is to take the proceeds of crime; take away the profit out of crime. That's the purpose and the basis for it." (Interview on Jim Dexter Show, KTKK AM 630, August 5, 2003)

That same day, on a different radio program, General Shurtleff stated this to the question of whether we really need the federal government coming in to prosecute Utah cases:

"We don't have funding enough… The problem is our task forces, they don't have the funding. They are not being funded appropriately by the legislature or county. The money has to come from the feds and we need that additional assistance." (Interview on Sheriff Richard Mack Show, KTKK AM 630, August 5, 2003)

Which is it? Is the goal of forfeiture to attack crime or to make money? Salt Lake County Attorney David Yocom seems to clearly understand the answer:

"Our agencies have nothing to gain by doing forfeitures [with the passage of Initiative B]. In fact there is a disincentive for doing them when you consider costs we will suffer and can no longer recoup under the law." ("Law makes forfeitures a hot potato," Kirsten Stewart, Salt Lake Tribune, July 4, 2003)

Yocom is not alone in his assessment: "Clark Harms, deputy Salt Lake County attorney, said an added benefit to Valentine's bill is it will help cash-strapped law enforcement agencies hire more officers." ("Seizure Law Put in Play," Kirsten Stewart, Salt Lake Tribune, February 11, 2003)

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General Shurtleff admitted the potentially unconstitutional nature of civil forfeiture, and included the following on his 2000 campaign literature:

"Forfeiture is an important crime fighting tool, but must only occur within Constitutional limits. While I oppose civil forfeiture, I support criminal forfeiture, once an individual has been found guilty."

Once in office, Shurtleff shamelessly reneged on his campaign statement. When confronted recently on talk radio, he stated:

"People have jumped on me and said, 'Well you said during your campaign you supported only criminal asset forfeiture.' And my position has always been: In a pure philosophical sense, a pure constitutionally philosophical sense, that's what makes the most sense is to go strictly with the criminal asset forfeiture. But in the real world, I think a lot of people recognize… that we're going to include civil asset forfeiture." (Interview on Sheriff Richard Mack Show, KTKK AM 630, August 5, 2003)

Purely philosophically speaking? Was Plato on the ballot for Attorney General? General Shurtleff's chief deputy Kirk Torgensen may provide a better understanding of Shurtleff's position. He wrote in a July 6, 2003 letter to the Salt Lake Tribune:

"Forfeiture has been part of the law for centuries. There is nothing about it which is unconstitutional or lacking in due process."

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General Shurtleff has been working with the very people who flagrantly violated Initiative B and withheld over half a million in confiscated proceeds from the Utah State Treasurer. Salt Lake County District Attorney Clark Harms, for example, told the Deseret News in November 2002:

"The current law inflicts such strict liability on law enforcement in seizure cases that agencies have found it wiser to simply stop."

Harms made this statement while, according to the Utah State Auditor, his boss and Salt Lake County District Attorney, David Yocom, was keeping confiscated proceeds from the Utah State Treasurer. Harms' department was not stopping forfeitures, it was hiding the proceeds! (Read more on State Auditor's findings.)

Harms presented alongside General Shurtleff's chief deputy Kirk Torgensen at the legislative hearing on forfeiture later that month. Along with Shurtleff, Harms and Torgensen have been key players in the effort to gut Initiative B.

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Officer arrests criminal. Criminal gets due process. Guilty criminal forfeits property. Proceeds go to victims. Legislature separately funds the police.

Does property forfeiture have a place in fighting crime? Perhaps, but only after the property owner has received due process. If we wish to retain our rights and also fight crime, then we need to look at sound, constitutional solutions such as legislative appropriations and judicial reform.

Forfeited property should not go to law enforcement, as this will destroy their objectivity and weaken the trust that should exist between police and citizens. The proceeds of forfeiture rightfully should be allocated to crime victim reparations (though Initiative B sends these proceeds to the Uniform School Trust Fund).

Law enforcement is not above the need for traditional checks and balances — core principles of American government. Other state agencies resolve budget shortfalls in two ways: They either petition the legislature for an increase or they tighten their belts. Property forfeiture is a harmful budgetary approach that can only undermine freedom, community, and property rights.

Your right to own property is sacred, and must not be tampered with by General Shurtleff or any other politician.  Do not relinquish your ability to hold accountable General Shurtleff and others who are willing to use your rights as political fodder. Our state requires leaders who validate their philosophical claims by correct, constitutional actions.

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