Colorado Becomes 6th State to Pass Asset Forfeiture Reform

Colorado joined the increasing number of states that have enacted significant asset forfeiture reforms when Governor Owens signed into law House Bill 1404 on May 31, 2002, which was overwhelmingly approved by the legislature. In recent years, significant reforms to asset forfeiture laws have also been approved in Oregon, Utah, New Mexico, Nevada, and Missouri.

HB 1404 made several significant reforms to asset forfeiture laws in Colorado. According to the new law:

• Prosecutors, in most cases will need to convict a property owner of a crime before pursuing forfeiture of property.
• The government will have to prove by clear and convincing evidence that the property was instrumental in the commission of a crime or is proceeds of criminal activity.
• The government will have to prove that the value of the property forfeited is proportional to the crime.
• Proceeds from asset forfeiture will first be distributed to lien holders, innocent co-owners, and victims. Prosecutors can receive no more than 10% to compensate for the cost of prosecuting the forfeiture action. Of any remaining funds, 50% would be allocated for substance abuse treatment and detoxification and 50% would be allocated to the general fund of the local government, either the city council or county commissioners, with budgetary authority over the seizing law enforcement agency for use for public safety purposes.

Under previous laws in Colorado, a property owner did not have to be convicted or even charged with a crime before their property was taken, depriving them of due process. Additionally, law enforcement and prosecutors split the proceeds for use in their own budgets.

In one instance, a Mexican national working legally in Alaska, stopped at the Denver International Airport on his way home to Mexico with $15,000 of legal earnings. He paid cash for the ticket for the last leg of his journey home. Police, tipped off to the cash purchase by airline employees, searched the man and found the money. Police discovered no drugs and no evidence of a crime, but because a drug detection dog “alerted” to the cash, the police seized his money. The man was not arrested and no criminal charges were ever filed. Because of the expense of taking the case to trial, he settled the case and received 40% of his money back.

Despite a law in effect in Colorado since 1992 that requires law enforcement agencies to submit an annual accounting of forfeiture revenues to the Colorado Department of Local Affairs, a thorough review of the reports filed indicated that only a handful of agencies were in compliance, according to Christie Donner of the Colorado Criminal Justice Reform Coalition which supported HB 1404. “Some sheriff’s department’s haven’t filed a report in a decade,” said Donner. “According to the reports that were filed, the value of the property forfeited in Colorado is easily in the millions with little public accountability in how those funds are spent.”

These problems and growing public concern led Representative Shawn Mitchell, a conservative Republican from Broomfield and Senate majority leader, Bill Thiebaut, a liberal Democrat from Pueblo, to join an unlikely alliance in sponsoring HB 1404. Although rarely in agreement, Mitchell said the former law “actually created an incentive for police to take your property because they got to keep what they took. We don’t give law enforcement a percentage of tickets they write or fines they enforce.” He said the former law also made a mockery of a basic constitutional premise that citizens are presumed innocent until proven guilty.

Senator Thiebaut agreed: “It’s inappropriate for law enforcement to seize and liquidate people’s property before they are convicted of a crime. If you’re an innocent person, you shouldn’t have your property taken away, and if it is taken away, you should have due process, even if you’re guilty,” he said. This opinion is widely shared among the public, where 83% of voters polled in Colorado believed that someone should be convicted of a crime before their property should be forfeited.

HB 1404 came under intense opposition from law enforcement and prosecutors, although San Miguel County Sheriff Bill Masters and Pikin County Sheriff Bob Braudis broke rank with their colleagues and supported reform.

Gus Sandstrom, District Attorney in Pueblo, opposed the bill because he said his office could not afford to buy computers, cameras and other equipment without proceeds from property confiscated under Colorado’s civil forfeiture law. “We’re desperate for dollars. We use the money to make up for the training the city and county can’t pay for and to buy equipment. We wouldn’t have a digital camera without the forfeiture money.”

Neither the legislature nor Governor Owens were persuaded by such arguments. The House of Representatives passed the bill on a 51-11 margin and the Senate on a 23-10 vote. “They say that restricting asset forfeiture will result in their losing badly needed revenue. But I believe that law enforcement should be supported by general taxes and appropriations, not be becoming bounty hunters who eat what they catch. Police and prosecutors should not work on commission,” said Mitchell.

Colorado’s new asset forfeiture laws take effect on July 1, 2002.