Reason has been reporting for years efforts in states across the country to try to rein in police and prosecutor abuse of civil asset forfeiture—the ability for authorities to take property and cash of people suspected of criminal behavior, often without ever having to charge, let alone convict them.
California has been a challenge. Not only do state regulations allow law enforcement agencies to seize and keep money and property without actually convicting people; in addition, restrictions the state has put on police (like restricting how much they can keep for themselves) can be bypassed by participating in the federal asset forfeiture program. As California cities dealt with drops in revenue during the recession over the past decade, that's exactly what governments did—participation in the federal program skyrocketed.
Last legislative year, Democratic state Sen. Holly Mitchell led an effort to reform California's laws to require convictions in order for law enforcement agencies to keep what they seized. Her bill, SB443 passed easily in the Senate, but then law enforcement groups mobilized and killed it in the state Assembly.
The bill is back this session and a newly announced compromise has law enforcement officials finally dropping their objections. It appears to be a pretty good compromise when you look at the worst of the law enforcement abuses. Police say they use civil asset forfeiture to target big drug dealers, but the reality is that many asset forfeitures are for smaller amounts in the thousands, often from poor people who cannot afford the costs to fight back. This compromise will require that police will have to get convictions for underlying crimes and prove that the property was connected to crime—but only for total assets that are valued at less than $40,000.
For assets over $40,000 the looser evidentiary standard of "clear and convincing evidence" applies and criminal conviction will not be required. This still seems clear a violation of the property rights and due process of people who pass the threshold, but it is nevertheless still an improvement on what currently exists.
As for the ability for law enforcement agencies to bypass the state and go to the feds, the same rules apply. In order to seize property under $40,000, even when participating in a joint investigation with a federal agency, an underlying criminal conviction will be required. It does not forbid law enforcement agencies from participating in joint operations with federal law enforcement or even using the federal "equitable sharing" asset forfeiture program; it requires that there be an underlying conviction before they can receive payment from the federal program for property valued at less than $40,000.
The new law also requires regular reporting of disbursements of assets seized via forfeiture and requires municipalities to maintain the funds in a separate account maintained by somebody like a controller or treasurer to distribute to law enforcement agencies.
Charles Stewart, Sen. Holly Mitchell's director of communications, told Reason that the compromise puts asset forfeiture in California back in line with what people think it is supposed to be used for—going after organized crime or major criminals.
"Our focus is to protect ordinary citizens who get caught up, and there's no evidence they're involved in some sort of crime," he said.
As the Los Angeles Times notes, they're hoping to have the law up for a vote in the Assembly (where it failed last time) and then back to the Senate again, in coming days.
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