Civil Asset Forfeiture

Reformers Again Attempt to Curtail Legal Theft by Police in California

Legislation reintroduced to require a conviction for asset forfeiture.


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California looked as though it was going to seriously restrain the ability for police and prosecutors to abuse civil asset forfeiture last fall, but legislators ultimately failed at the end. The influence of police and prosecutor lobbying was too strong. Legislation that would have required police to actually attain convictions for crimes before attempting to seize and keep somebody's money or property passed in the state Senate, but failed in the Assembly.

The bill, SB 443, is back for another push for passage. Sponsored by Democratic state Sen. Holly Mitchell, the legislation would require convictions before permanently seizing somebody's property and would increase the evidentiary threshold required to connect the property with the underlying crime.

The previous iteration of the bill forbid law enforcement from bypassing state-level restrictions by participating in the Department of Justice's "Equitable Sharing" forfeiture process unless a person was convicted of a crime. This was an important component of the bill, because the DOJ's rules are laxer and allow police to keep more of what they seize than California's laws permit. Because of the looser rules, use of the DOJ's forfeiture process has skyrocketed in California, particularly in smaller municipalities, while seizures under the state's rules have remained flat. During the recession, as municipal budgets suffered revenue losses in California, law enforcement agencies increasingly turned to asset forfeiture to fill gaps.

The conviction requirement remains in this version of the bill, but a section has been added to allow police to seek seizure without a conviction if the defendant doesn't show up for court, flees to evade prosecution, or is deceased. One of the objections by law enforcement and prosecutors attempting to defend civil forfeiture is that they sometimes aren't able to get a defendant in the courtroom to tie him or her to the assets. This would seem to help address those concerns. Nevertheless, according to the Los Angeles Times, police and prosecutors are still unhappy:

Law enforcement groups say the practice is an essential tool in combating drug trafficking. When police arrest low-level cartel members with large sums of money in their cars, the driver isn't the primary target, Totten said.

"In many, many narcotics trafficking cases, we're not able to actually identify some of the higher-ups in the organization whose money we're seizing," he said. "That's just the nature of illicit drug trafficking."

Law enforcement loves to present the idea that they're seizing large sums of drug cartel money in their asset forfeitures, but the reality is that the vast majority of assets grabbed in any given seizure in California are worth less than $5,000, according to a report put together by the Drug Policy Alliance. The people often affected by asset forfeiture were poor and often spoke little English, and were unable to understand the process (and could not afford) to fight to keep their property.

Mitchell has support in her efforts from Republican Assembly member David Hadley, who points out that all the police really want here is to protect their revenue:

David Hadley, a Republican assemblyman from Manhattan Beach and a coauthor of Mitchell's bill, said law enforcement is fighting hard against changes to the civil forfeiture process because of the hit to their budgets. It's on the Legislature, he said, to boost funding for public safety so that police don't have to rely on taking people's property to pay for what they need.

"When you get outside of [the Capitol] you get a general consensus that something like this in its broad form should not be happening in the United States," Hadley said.

Yes, polls show that citizens, once they understand how civil asset forfeiture works, are overwhelmingly opposed to the process. That it's hard to get reform passed in states like California shows how overwhelmingly government employees have captured the legislative branch.