Pubdate: Thu, 11 Apr 2002
Source: Denver Rocky Mountain News (CO)
Copyright: 2002, Denver Publishing Co.
Contact:  http://www.rockymountainnews.com/
Details: http://www.mapinc.org/media/371

CIVIL FORFEITURE'S EXCESSES

The issue: Bill would restrict the taking of private property

Our view: If the legislature won't act, the voters should

The ferocious opposition of law-enforcement agencies to reform of the 
forfeiture laws is clear evidence of how badly reform is needed.

House Bill 1404, sponsored by Rep. Shawn Mitchell, R-Broomfield, would tame 
some of the worst abuses of this war-on-drugs strategy run wild, and we 
encourage legislators to approve it. But if they don't, Colorado voters 
should follow the leads of Oregon, Utah and elsewhere and take matters into 
their own hands with an initiative.

Last week, after a debate that stretched to seven hours, the House Civil 
Justice and Judiciary Committee set the bill aside so Mitchell could tinker 
with the language before a vote that could come as early as today.

But the core principles of the bill will remain, Mitchell said. Chief among 
them is indeed to make it harder for law enforcement agencies to take 
private property for their own benefit. Why, they'd actually have to prove 
first in court that the property owner was guilty of criminal behavior 
before imposing the forfeiture penalty.

Isn't that the way the justice system is supposed to work? Verdict first, 
punishment afterwards?

The bill would also raise the standard of proof that the property was used 
for criminal purposes to "clear and convincing evidence," and would reduce 
the financial incentive for forfeiture by diverting some of the proceeds 
from a forfeiture to drug treatment programs.

As drafted, the bill would still allow property to be seized on suspicion, 
but would direct courts to return it unless the owner is convicted. And 
even if the owner is convicted, others with a claim on the property who are 
not involved in the crime (such as mortgage holders) would be paid before 
the agency that carried out the seizure.

Mitchell said he would consider an exemption in cases where a property was 
consistently and repeatedly a source of problems although the owner was not 
directly involved in the criminal activities of his tenants.

Seems to us that's about as much compromise as civil liberties can stand.

Mitchell expects the committee will send the bill to the floor and we hope 
legislators will recognize that simple justice demands its passage. A core 
belief of our justice system is that the innocent must be protected, even 
if that sometimes means the guilty go free. Civil forfeiture without 
criminal conviction can't meet that fundamental test of fairness.

But if by chance that argument doesn't sway legislators, they should give 
thought to the periols of legislating by initiative -- as voters are 
inclined to do when lawmakers dawdle because they hate to offend important 
people. Legislative debate often reveals complications and subtleties in an 
issue that the drafters need to take into account; that's what Mitchell has 
been doing this past week.With initiatives whose language is fixed, that's 
not possible.

The legislature should act to remedy this injustice. 
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MAP posted-by: Keith Brilhart