SACRAMENTO, Calif. (Sept. 14, 2016) – The California Senate recently gave final approval to a bill that not only bolsters restrictions on state officials from seizing property without due process, but also throws a wrench into federal efforts to do the same. It was approved by Governor Jerry Brown shortly afterward.
Sen. Holly Mitchell (D-Los Angeles) introduced Senate Bill 443 (SB443) last year. The legislation sets additional restrictions on the state to prevent abuses from civil asset forfeiture, a controversial practice that observers such as the Institute for Justice (IJ) have called “legal plunder.”
SB443 passed in the state Senate last summer by a resounding 38-1 vote. But the Assembly failed to pass the bill by a 44-24 vote. Assemblyperson Chris Holden made a motion to reconsider that passed. SB443 was then placed in the inactive file and finally brought up for a vote in the full Assembly where it passed 69-7 after supporters reached a compromise with law enforcement interests.
The Senate promptly concurred with the Assembly amendments. It was approved by Gov. Brown and will become the binding law in the state of California.
ADDRESSING FEDERAL LOOPHOLE
California previously had some of the strongest state-level restrictions on the practice, but law enforcement around the state would often bypass the restrictions by partnering with a federal asset forfeiture program known as “equitable sharing.”
Under these arrangements, state officials hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds—even when state law bans or limits the profit incentive. Equitable sharing payments to states nearly doubled from 2000 to 2008, from a little more than $200 million to $400 million.
SB443 contains provisions to prevent prosecutors from bypassing the more stringent state asset forfeiture laws by passing cases off to the federal government under its Equitable Sharing forfeiture program. The following language shuts the loophole in most situations:
"State or local law enforcement authorities shall not refer or otherwise transfer property seized under state law to a federal agency seeking the adoption by the federal agency of the seized property."
SB443 makes it clear that state and local law enforcement agencies won’t receive federal equitable sharing money related to the seizure of assets unless it is expressly permitted under state law or if the seizure is over $40,000:
"A state or local law enforcement agency participating in a joint investigation with a federal agency shall not receive an equitable share from the federal agency of all or a portion of the forfeited property…unless a defendant is convicted in an underlying or related criminal action of an offense for which the property is subject to forfeiture…"
Boats, vehicles, and homes will still require a conviction regardless of value.
These provisions make this bill a substantial step forward because the federal government encourages and promotes this lucrative practice in many ways.
The version originally past by the Senate prohibited equitable sharing and a conviction in all cases. Mitchell said the compromise allowing forfeiture of cash over $40,000 without a conviction was necessary to move the bill. Police were concerned that a blanket requirement for a criminal conviction for seizure of high cash amounts would hinder their ability to go after large criminal syndicates. With the changes, law enforcement lobbies dropped their opposition to the measure. Mitchell told the LA Times the bill still protects the average person.
“It’s those private citizens who could not be convicted of a crime whose assets that we need to protect,” he said.
As an additional protection, under the law notices would be required giving specific instructions to forfeiture victims about their right to receive a fair hearing to reclaim their lost property. It would also change the burden of proof that a state or local law enforcement agency must meet to succeed in a forfeiture action with regards to cash or negotiable instruments of a value not less than $40,000, from a clear and convincing standard to beyond a reasonable doubt.
TAKING ON FEDERAL FORFEITURE
California prosecutors and law enforcement agencies have regularly utilized this loophole to get around strict state-level restrictions on forfeiture. According to a report by the Institute for Justice, Policing for Profit, California ranked dead last of all states in the country between 2000 and 2013 as the worst offender.
The U.S. DOJ paid local and state agencies in California more than $696 million in equitable-sharing proceeds.
As the Tenth Amendment Center previously reported the federal government has inserted itself into the California’s asset forfeiture debate. The feds clearly want the policy to continue.
We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconscionable “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.
Asset forfeiture laws incentivize “policing for profit” on one hand, and dubious state-federal partnerships on the other.