Cochise County using seized crime money for scholarships

The Cochise County Sheriff's Office is providing nine high school students with college scholarships financed by money and assets seized from people suspected of illegal activity.

The $9,000 for scholarships is paid from the county's anti-racketeering revolving fund. State law specifies that cash in this account is to be used for things like gang and substance-abuse prevention programs and law enforcement equipment.

So, how do the scholarships fit the bill?

Though federal law appears to prohibit such a use of the money, Cochise County says the spending is permissible because it plays a role in substance-abuse prevention.

Attorney Paul Avelar of the Institute for Justice, a civil liberties law firm and libertarian advocacy group, said the scholarships are a small example of the nearly free rein Arizona's 15 counties have when deciding how to spend asset forfeiture money.

Law enforcement officers have the power to seize cash, cars, and other assets from those suspected of racketeering, and the agencies get to keep a majority of that money. It is deposited into accounts that are typically managed by the county attorney.

The Arizona asset forfeiture law, which one criminal defense attorney called "the most aggressive forfeiture law in the country," has been an object of controversy since its inception for two key reasons: Individuals do not have to be charged with a crime to have their assets seized, and it encourages what justice advocates call "policing for profit," meaning that law enforcers focus on crimes where they are most likely to seize money or assets.

Arizona had more than $70 million in state asset forfeiture cash on hand as of December 2014.

Permissible uses of this money under Arizona law include programs for drug and gang education and prevention, assistance to crime victims, witness protection and any expenditure allowed by federal law, which includes most law enforcement purposes and equipment.

Federal law states that racketeering money may not be used for the "payment of education-related costs," including scholarships, financial aid and non-law enforcement classes.

But Cochise County Attorney Brian McIntyre said the scholarship is categorized as a substance-abuse prevention program because the sheriff's office requires applicants to sign an affidavit saying they will be drug free.

The scholarship program was recently renamed to honor former Sheriff Larry A. Dever, who died in 2012. It awards $1,000 to a student from each high school in the county. Winners are selected by members of the sheriff's office and the Dever family based on their academic success and dedication to a career in public service, said Carol Capas, public information officer for the sheriff's office.

It is one of many community programs that amounted to $22,000 in forfeiture money spent in the past 15 months, Capas said.

The county sponsors other substance-abuse prevention programs, including footing the bill for "Don't meth with me" t-shirts at schools. McIntyre said some students might be affected by t-shirts, while others may be inspired to stay drug-free knowing there is a scholarship.

"It's substance-abuse prevention whether it's one person or 20 by having them commit to remaining drug free," McIntyre said.

He also noted that the statute dictating how forfeiture money may be spent does not include definitions of "substance-abuse prevention" or the other permissible categories, which leaves room for the sheriff's office to make decisions about how best to prevent drug and gang violence.

Avelar agreed.

The categories that specify how the money should be spent are "incredibly broad," allowing for a gamut of expenditures, he said.

"It's very loosey-goosey on what they spend it on," Avelar said. "They have the ability spend it on a lot of things that we might not think are wise expenditures of public money."

But McIntyre said that it's essential that counties retain broad spending power over this money, because "local elected officials are in a much better position to determine what priorities need to be addressed than people outside of the county."

"And additionally, the reality is that if the local voting populous doesn't agree with the use of those funds or the priorities that have been set by these decision makers, they have the ultimate remedy to vote us out," McIntyre said.

Other law enforcement agencies have previously come under fire for their choices on how to spend asset forfeiture money. For example, Maricopa County Sheriff's Office purchased and leased high-end vehicles to drive employees to and from work. More recently, Yavapai County gave money to a nonprofit that supported a political campaign to thwart marijuana legalization.

County sheriff's offices even disagree among themselves about what is and isn't acceptable under Arizona's asset forfeiture law.

The Arizona Republic reached out to all 15 county sheriff's offices, and all but one responded. None of the responding county sheriff's offices other than Cochise use fofeiture money to provide scholarships. But most use a portion of their funds to sponsor community and educational programs.

Lt. Kurt Bagby of the La Paz County Sheriff's Office said his agency would love to offer a scholarship program, but the county's small pool of RICO money goes to enhancing narcotics investigations.

Santa Cruz County Sheriff Tony Estrada also supported Cochise County's efforts, saying "the message it sends is positive and strong."

"If you know that there are grants available for you to be able to go into higher education, you may be tempted to have a cleaner life, study more, stay away from groups that have a bad influences," Estrada said.

But Chief Deputy Jim Molesa of the Navajo County Sheriff's Office said that if a request to fund a general scholarship came across his desk, he would not recommend funding it because it doesn't seem to fit the description in Arizona law.

He said his agency has used forfeiture funds to send students to leadership programs — but they always have included a drug- or gang-prevention curriculum.

"We have to face that test each and every time we get a request for items like this," Molesa said.

Avelar said while the scholarship program may raise some eyebrows from those familiar with the law, it's "not the biggest waste of public money."

He said it boils down to the fact that Cochise County residents may want forfeiture money to be spent on scholarships. But they may not, and there's no real way for the public to know how law enforcement is deciding to spend the money, he said.

"If you read the law, you wouldn't know that they're spending this money on scholarships for kids," Avelar said.

Criminal defense attorney Larry Hammond, who has represented many clients in asset forfeiture proceedings, said that whether it's scholarships, luxury vehicles or equipment,- sheriffs and county attorneys have no business deciding how to spend public money.

Hammond said the U.S. Constitution was set up so that "the government can't go out and seize assets from people and set up their own little government, spending money in ways that Congress never approved."

Hammond said he'd like Arizona to take a page out of that book and shift all asset forfeiture funds into the state's general fund, where the Legislature could appropriate the money.

"It disturbs me that a sheriff or a prosecutor would take it unto themselves to decide how money is to be spent," Hammond said.