In April, when we reported the results of a Drug Policy Alliance study showing significant growth in police civil asset forfeiture in several California cities, we also noted the introduction of Senate Bill 443 in the state, intended to reform the process and hopefully cut back on some abuse.
The legislation has passed one hurdle, approved by the state's Senate easily, 38-1. It's now awaiting vote in the Assembly, which is, like the Senate, dominated by Democrats. It's easy to visualize forfeiture reform passing in California, given that it has drawn bipartisan support in other states, but California is a state where unions are typically king, and law enforcement unions have been fighting these reforms every step of the way.
Perhaps that's why SB 443 is actually a little bit milder on reforms than what has come to other states, like the major reforms that New Mexico passed. In New Mexico, the legislature took the huge move of taking the financial incentive out of police asset forfeiture by forcing all seized money and assets into the state's general fund. Law enforcement agencies will no longer be able to keep any funds or property that they seize, and not even bypassing the state to attempt to use the federal asset forfeiture "Equitable Sharing Program" will work there.
SB 443 will continue to allow California law enforcement agencies to keep a portion of the money and assets they seize from police busts. But it will require agencies to comply with the state's asset forfeiture laws and forbid them from transferring the cases to the federal government. The federal government has looser rules of evidence to seize people's assets and allows the law enforcement agencies to keep a larger portion of the money than California law allows. As the Drug Policy Alliance's April report noted, several California cities saw huge increases in participation in the federal program as law enforcement agencies sought to keep this money in house, often to account for budget cuts during the past decade. California's laws allow law enforcement agencies to keep only a maximum of 65 percent of the value of what they seize. But if the agencies go through the federal system instead, they'd be allowed to keep 80 percent. SB 443 will force California law enforcement agencies to use the state system with its lower limits.
SB 443 also demands counsel be appointed for indigent defendants in asset forfeiture cases and the recovery of attorney's fees for successful challenges. These regulations are important because, while the police like to argue that these asset forfeiture cases are against drug lords or big-time criminals, they're actually often used against the downtrodden who find the bureaucratic system impossible to navigate and cannot afford a lawyer. They often end up settling for getting just a portion of their funds back in settlements with prosecutors, even if they're never charged with crimes.
Read more from Reason on asset forfeiture (and asset forfeiture reform) here.