AG'S OFFICE TARGETS FORFEITURE LAW

It hardly seems fair to attorney Janet Jenson. She fought a fair fight,
raised a lot of money in a tight economy, ran a successful citizens
initiative despite a hostile Legislature, and now faces doing it all over
again.

In 2000, Jenson and her law partner, Andy Stavros, wrote and publicized
Utah's Initiative B, limiting the scope of forfeitures of property used in
the commission of a crime. Proponents argued the forfeitures led to abuses
because the law gave law enforcement incentives to zealously seize property
to get the proceeds.

Passed by a 69 percent majority statewide, the initiative placed forfeiture
earnings in the Uniform School Fund rather than in the hands of law
enforcement. But law officials have taken offense and are fighting to change
the law again.

"The Legislature several years ago heard all these horror stories and
through an audit, found there is nothing in Utah to substantiate anything
like this," said Assistant Attorney General Kirk Torgensen.

The 1999 legislative audit indeed found no evidence of abuse, but did
recommend safeguards because of isolated problems with accounting and
management of assets.

But problems or no, the issues go beyond bad accounting practices.
Proponents believe it is a matter of fairness and of constitutional
protection.

"Our whole system of government is based on the belief that humans in their
natural state will tend toward evil and therefore there need to be checks,"
said attorney Frank Mylar, a reformer who also ran against Mark Shurtleff
for attorney general. "The biggest evils are done in the name of a good
cause."

Jenson calls the system a bounty for law enforcement.

Recent forfeiture laws are related to the war on illegal drugs. The idea is
that forfeiture punishes criminals by not letting them profit from illegal
activities. It also works as a deterrent by preventing criminals from
accumulating illegal assets to further their trade. Finally, forfeiture also
helps cover the costs of enforcement.

"Forfeiture is an absolute must for deterring criminal activity," said
Torgensen. "We teach our children that crime doesn't pay."

Shurtleff agrees, saying it's all about crime-fighting. But crime-fighting,
he notes, is also about money.

"It's expensive," said Shurtleff.

At stake also is about $5 million now sitting fallow in some federal coffer,
waiting to be retrieved if the state law is changed. That is necessary
because the federal government requires states to use money seized in joint
federal-state operations only for law-enforcement purposes.

"But there's nothing that precludes them from cooperating with the feds, and
not taking the money," said Stavros. "Let's have a debate on what's the best
way to fund law enforcement. Is this the only way to fund their operations?"

Shurtleff emphasizes the high cost of fighting crime and the justice
inherent in taking back ill-gotten gains from criminals. He would settle for
half of the $5 million, or perhaps less than half.

Prosecutors last year challenged the constitutionality of the law in federal
court, putting Shurtleff in the position of defending it as the state's
chief lawyer. While U.S. District Judge Dee Benson ruled the act
constitutional, he also felt compelled to admonish the proponents for duping
the voters. Indignant, Jenson stood up and remarked that law enforcement
should not be given incentives to take people's property. Benson apologized
from the bench.

The victory was short-lived, because legislators then began rewriting the
law.

"Last year, we were totally ambushed," said Jenson, who was allowed only a
few minutes of testimony before the legislative committee considering the
legislation.

An attempt to tweak the forfeiture law in the most recent legislative
session fell short when sponsor Sen. John Valentine, R-Orem, bowed to angry
constituents who demanded he leave the law alone.

The debate has become a battle between people's perceptions of good and
evil. Torgensen, for instance, notes that Initiative B was largely funded by
an out-of-state trio of billionaires bent on legalizing drugs. That does not
reflect the will of the people of Utah, he said.

Backers of Initiative B did raise more than $750,000. Some came from noted
Utah conservative Bert Smith of Ogden's Smith & Edwards, but most was
contributed by a trio politically known as "the funders." Currency
speculator George Soros, University of Phoenix founder John Sperling and
Peter Lewis of the automobile insurer Progressive Corp. have funded ballot
measures like Utah's around the country. Their philosophical grounding,
however, comes from a belief that the drug war is a bust and that efforts
have attacked minorities and poor people rather than drug lords.

"Shurtleff is beside himself," said Jenson, who thinks the attorney general
wants to vilify the opposition for his own ends.

Torgensen is busy working on a new revision of the law, hoping to find a
sponsor for the 2004 legislative session. Not even the growing body of
national law favoring forfeiture reform seems to deter him. Late last year
for instance, a constitutional challenge in New Jersey stopped police and
prosecutors from holding assets they seized, and put some $32 million on
hold pending a state Supreme Court review.

The debate has boiled down not so much over wresting money from criminals
but over where to redirect it. "They have the motive to keep fighting -- at
taxpayer expense," said Jenson of the Attorney General's Office. "It grinds
everyone down."

When you consider that states have been enacting and overturning forfeiture
laws since 1862, it's not surprising that the pendulum continues to swing.

"We can do this until we get it fixed," vowed Shurtleff.