Pubdate: Thu, 03 Sep 2015
Source: Orange County Register, The (CA)
Copyright: 2015 The Orange County Register
Contact:  http://www.ocregister.com/
Details: http://www.mapinc.org/media/321
Author: Erwin Chemerinsky
Note: Erwin Chemerinsky is dean of the UC Irvine School of Law.

BILL IMPROVES FAIRNESS IN ASSET FORFEITURE

The California Legislature should pass, and Gov. Jerry Brown should 
sign, pending legislation that would curb some of the unfair aspects 
of the law concerning when the government can seize a person's 
property. At the height of the "war on drugs," governments at all 
levels were given much greater power to seize the assets of those 
suspected of criminal activity. Billions of dollars in cash and 
property of all sorts have been seized.

No one disputes that government has the power to confiscate 
ill-gotten gains of criminal activity. No one should be able to 
profit from a crime. The problem is that current law gives the 
government the power to seize property even without a criminal 
conviction and without fair safeguards.

Senate Bill 443, introduced by Sen. Holly Mitchell, D-Los Angeles, 
and co-sponsored by many others, seeks to rectify this. Under 
existing law, a conviction is not required before forfeiture if the 
seized assets are cash or other negotiable instruments in excess of 
$25,000, although a conviction is required for cash less than 
$25,000, or for seizure of real property, boats, cars, airplanes and 
other personal property. SB443 requires a conviction as a 
precondition to forfeitures both over and under $25,000.

This is a crucial change in the law. A person's property should not 
be seized as being the fruits of a crime until and unless the person 
has been convicted of a crime.

SB443 does many other things as well to provide greater fairness. The 
bill would require a court to appoint counsel for indigent property 
owners in forfeiture proceedings. An attorney is crucial in 
protecting a person's rights. Although the law requires that an 
attorney be appointed to defend criminal charges that might lead to a 
prison sentence, there is no right to an attorney in civil asset 
forfeiture proceedings.

Also, those who claim that their property was wrongly taken should be 
able to litigate to get it back. SB443 accomplishes this by allowing 
the recovery of attorney's fees for property owners who successfully 
challenge forfeiture actions. It is hoped that the availability of 
attorney's fees will provide an incentive for lawyers to take cases 
where property was wrongly seized.

Another key aspect of SB443: It redistributes where the money goes 
when assets are seized. Under current law, almost all money gained by 
forfeiture goes to police and prosecutors. The bill would reallocate 
the proceeds from forfeitures to ensure that courts and public 
defenders receive a portion of the proceeds.

The current allocation gives 65 percent of the proceeds to law 
enforcement, 10 percent to the prosecuting agency, 1 percent to a 
nonprofit district attorney association for training on asset 
forfeiture and 24 percent to the general fund. SB443 would send 54 
percent to law enforcement, 24 percent to the general fund, 10 
percent to courts, 5 percent to prosecutors, 5 percent to the public 
defender's office or provider of court-appointed counsel, 1 percent 
to the nonprofit district attorney association and 1 percent to a 
nonprofit association of criminal defense attorneys for training on 
civil asset forfeiture.

One other crucial aspect of SB443 is that it would limit the ability 
of state prosecutors to benefit from federal law, which is much more 
lenient on forfeitures than California law. State law generally 
requires a conviction before property is permanently confiscated; 
federal law does not.

California law protects an innocent spouse or other family member; 
federal law does not and allows property to be seized even if it has 
an innocent owner. California law requires that at least 28.5 grams 
of a controlled substance be present before a car, boat or conveyance 
may be taken. Federal law has no weight guideline.

Even where the state or local government in California could not 
seize property, a process called "equitable sharing" allows local and 
state law enforcement to circumvent California's more stringent asset 
forfeiture laws and receive up to 80 percent of the proceeds from a 
federal forfeiture action. SB443 would limit the ability of state and 
local governments in California to profit from a seizure that state 
law would not allow.

All of these reforms would be easy to implement. All advance fairness 
without in any way compromising law enforcement. Unfortunately, 
district attorneys' offices throughout California are opposing this 
bill, likely because it will reduce their money from forfeitures. But 
that is no reason to continue an unjust process.

Liberals and conservatives should favor limiting the forfeiture power 
to ensure that the government is acting fairly before it takes away a 
person's property. The Legislature should adopt SB443, and the 
governor should sign it.
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MAP posted-by: Jay Bergstrom