Arizona AG: Return to looser civil forfeiture law

State  lawmakers made a mistake in 2021 when they revamped the civil forfeiture law that provided what some had said was an easy — and potentially unethical — source of money for police and prosecutors, Mayes said Thursday.

Under the new law, property ranging from cash and homes to cars and cell phones can be seized and sold off — with the proceeds going to law enforcement — only after the owner actually has been convicted of a crime.

But Mayes wants to return to the days when the only requirement was that prosecutors convince a judge in a civil proceeding through "clear and convincing evidence'' that the property is tied to some sort of criminal activity. That is a lower burden of proof than "beyond a reasonable doubt,'' the standard to convict someone of a crime.

Her comments came as the Democratic attorney general held a news conference to announce how many more cases of Medicaid fraud had been prosecuted since she took office in 2023 than had been pursued when Republican Mark Brnovich ran the agency.

Mayes, however, lashed out at lawmakers who "significantly curtailed the ability to seize assets in criminal cases'' like Medicaid fraud.

"So, in the real world, that means that criminals get to use the money they stole to pay for their legal defense and attorneys' fees,'' she said. And Mayes said the Republican-controlled Legislature — and Doug Ducey who was governor at the time — "kneecapped'' the ability of prosecutors to go after those assets.

Mayes specifically singled out Republican Warren Petersen, who is running to unseat her in November, as promoting the 2021 legislation, as at fault for the change.

But Petersen, who was not Senate president at the time, was only a cosponsor of the measure. It actually had been crafted by then-Rep. Travis Grantham, a Gilbert Republican.

The legislation was approved on a near-unanimous bipartisan margin. The only votes against it came from two House Democrats and a Senate Republican.

Mayes bristled at questions about whether allowing assets to be seized before there is a trial amounts to an assumption that people are guilty simply because prosecutors say so.

"Well, obviously, you agree with Warren Petersen and the criminals that they should have access to all of their ill-gotten gains,'' she responded. "But it's also not fair to the state and the people of Arizona that these people have access to assets, massive amounts of assets by the way, that we are seizing to hire high-priced defense attorneys and then go against us.''

What the 2021 law also means, Mayes said, is that prosecutors cannot sell off the assets based on the ruling in a civil case but instead have to hold onto them for years and years.

"And as that is happening, those assets lose value,'' she said.

Nicholas Klingerman, Mayes' chief criminal deputy, said there's nothing wrong with the old system.

"You would have due process in court to defend against the forfeiture,'' he said. "Adding the criminal conviction just delays that ultimate forfeiture.''

Mayes brushed aside the overwhelming approval of the 2021 law, including its support by virtually all members of her own party. She said things have changed.

"I think we have now years of experience after the passage of that bill that demonstrate it is doing nothing but help criminals in the state of Arizona,'' Mayes said.

She also said that she has talked with some lawmakers about repealing the 2021 law. But the attorney general also said that, despite having taken office in 2023, she has yet to actually work with any legislator to craft a repeal.

Mayes said that her position aligns with other prosecutors.

That is borne out by the fact that multiple prosecutors, city and county officials and police department all urged lawmakers to kill the 2021 measure.

Gilbert Police Chief Mike Soelberg, testifying in 2021 before the House Committee on Criminal Justice Reform on behalf of the Arizona Association of Chiefs of Police, said ending civil forfeiture would hamper prosecution of criminals.

"This is an invitation to criminal enterprises and trans-national criminal operations to operate in the state of Arizona,'' Soelberg said then. "Depriving criminals and criminal organizations of their ill-gotten gains is a mechanism to disrupt and dismantle and deter those who prey on individuals for financial gain.''

But lawmakers instead sided with what Mayes called "kind of a weird coalition of the far right and the far left,'' people who she said do not like the racketeering laws, which had been the main use of civil forfeiture.

On one side of that pro-repeal was the Arizona Attorneys for Criminal Justice, which represents attorneys who defend people in criminal cases. The American Friends Service Committee also signed it in support.

But there was also backing from the Goldwater Institute and the Institute for Justice, both of which have taken positions against what they see as government overreach.

Mayes pointed out that the restrictions in the 2021 law do not apply to federal prosecutors who remain free to pursue asset seizures before a criminal trial or conviction.

Ducey acknowledged that in signing the measure. He pointed out that the Arizona Constitution, unlike its federal counterpart, which protects against unreasonable search and seizure, has a specific right to privacy.

"I have a constitutional responsibility to provide a balance between those rights and ensuring that law enforcement has the tools necessary to protect our state,'' Ducey wrote in explaining his decision to sign the bill, saying the measure "provides this balance.''

Grantham, in pushing the 2021 law, said the existing system was unfair and subject to abuse.

"Some of these departments have began to this type of seizures and this type of practice to fund their agencies,'' he told colleagues during legislative hearings. "To me it's terrifying to think that, here we are, the ones that should be appropriating money to these folks to do their job, to do the good job of law enforcement, and we've created a system that incentivizes them, oftentimes, with regards to when they may take property from somebody, sell it and get to keep the proceeds.''

Grantham said he does not doubt that police and prosecutors do use the law to go after major criminals.

But he said that of the nearly $27 million seized in 2019 — the most recent data at that time — more than half of that was made up of items worth less than $1,000.

"They took cash, cars, guns, cell phones, three glass pie dishes, an $18 Best Buy gift card,'' he told colleagues.

"Some poor sap pulled over for whatever reason and has committed a crime and the next thing you know their $1,000 van is taken from them or the trailer they're towing or whatever items they have in their possession,'' he said. And Grantham said it even can occur just because someone was a witness to a crime, "which, believe it or not, happens.''

"While it definitely captures some bad people, it destroys a lot of good people,'' he said. "And I've always been of the opinion that in our country, if we're going to do something that hurts one innocent person just because it gets 10 bad ones, we're doing it wrong.''

Separately on Thursday, Mayes criticized legislative Republicans whose proposed $17.9 billion budget is balanced, at least in part, by cutting the budgets of most state agencies by 5%, a cut she said equaled about $1 million. She pointed out that lawmakers created exceptions for what they called law enforcement agencies: the Department of Public Safety, the Department of Child Services and the Department of Corrections, Rehabilitation and Reentry.

"We are the premier law enforcement agency in the state of Arizona,'' she said.

"We are the ones going after the Mexican drug cartels,'' Mayes continued. "My team is the one going after major fraud in the state of Arizona.''

There was no immediate comment from legislative leaders who are currently negotiating with Gov. Katie Hobbs to come up with a final budget for the new fiscal year that begins July 1.