Pubdate: Thu, 25 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 Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture) OWENS OVERDOES A PROTEST The issue: Governor objects to legislation in Senate Our view: His reading overlooks bill's language Gov. Bill Owens has rapped proposed legislation to reform the way police seize the assets of suspected criminals in this state, but his critique is based on a strange reading of the bill. First we should confess our bias: We favor reform of so-called asset forfeiture laws. We've been on record with this position for 10 years or more, and have already endorsed House Bill 1404, which Owens took to task. We oppose the idea idea of allowing police and prosecutors to seize and then keep the property of people who haven't been convicted of a crime. Such a system is an open invitation to official abuse, and it's a credit to Colorado's police and prosecutors that they kept abuses to a minimum. Yet the generally honorable behavior of local law enforcement doesn't make the current forfeiture law any less objectionable. That's why we welcome HB 1404's attempt to raise the standard of proof for property seizures, stipulate that the value of the seized property be proportional to the crime, and mandate a criminal conviction in most cases. Owens says he agrees with raising the standard of proof from a "preponderance of the evidence" to "clear and convincing evidence." But he rather breathlessly claims that the bill "goes too far in protecting the rights of drug dealers, methamphetamine (meth) manufacturers and other criminals." How? By mandating "that the property or proceeds be instrumental to the offense, that the value of the property seized is proportional to the crime charged and that the proceeds be directly traceable." The governor even provides an example of what he worries might happen if the state Senate follows the lead of the House and approves HB 1404: "The current bill requires a proportionality review for the forfeiture that may allow a criminal to keep most of the proceeds of crime. For example, if, after a day of drug dealing, the offender has hundreds of thousands of dollars in cash and only a small amount of drugs in his or her possession when arrested, [this] bill would only allow forfeiture of the money relating to the small amount of drugs. The offender's other profits from earlier criminal activity that day would be untouchable." We're not so sure. Based on our reading of the bill, it doesn't go nearly as far as Owens suggests. While HB 1404 clearly does say that a court must find "clear and convincing evidence that the value of the property to be forfeited is proportional to the crime and is not excessive," it goes on to describe how the court should reach its conclusions. And among the things the court can consider are "the financial gain derived or sought to be derived through commission of the offense or related criminal activity (our emphasis)," and whether the offense "was part of an ongoing pattern of related criminal activity (our emphasis again)." What else could this mean but that a judge could indeed consider whether a drug dealer's "hundreds of thousands of dollars in cash" were related to his crimes and thus could be used in reaching a decision on proportionality? Owens agrees that "requiring a criminal conviction prior to the ultimate forfeiture of property is a common sense and laudable goal that I generally support." Yet then he maintains that the bill doesn't balance "society's need to close down nuisance properties such as houses of prostitution, drug dens and meth labs against an innocent person's right to protect his or her property from governmental seizure." But here again it's not clear the governor has read the bill correctly. HB 1404 specifically says that a property owner "is a party to the creation of the public nuisance" if he "knew of the public nuisance or had notice of the acts creating the public nuisance." And in that case, the bill says that "a judgment of forfeiture may be entered without a criminal conviction of the owner." We're not saying the governor entirely misconstrues the bill. Some of his objections are real enough, and may require compromise with the sponsors. But he exaggerates when he says the bill goes too far in protecting the rights of criminals. What it protects are the rights of the accused, and that's not the same thing. - --- MAP posted-by: Ariel