Attorney General Kris Mayes wants state lawmakers to once again allow prosecutors to seize the assets of those they accuse of criminal conduct -- even before there has been a trial, much less a conviction.
Mayes said Thursday that 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.
Under the new law, property ranging from cash and homes to cars and cellphones 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 press 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 co-sponsor of the measure. It actually had been crafted by then-Rep. Travis Grantham, a Gilbert Republican.
More to the point, 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 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,'' he said. "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 Arizona Attorneys for Criminal Justice, which represents attorneys who defend people in criminal cases. The American Friends Service Committee also signed in in support.
But there also was 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.
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