Law Requires Conviction In Most Cases Before Permanent Loss of Property
Asset Forfeiture Reform Bill Signed Into Law Is One Of The Most Far Reaching Protection of Due Process And Property Rights
SACRAMENTO — Today, California Governor Brown signed into law a bill that would in most cases prevent law enforcement agencies from profiting from seized cash or property unless a person has been convicted of a crime. The law is one of the country’s most far-reaching protections against civil asset forfeiture abuse.
Senate Bill 443, authored by Senator Holly Mitchell (D-Los Angeles) and Assemblymember David Hadley (R-Torrance), establishes some of the nation’s strictest standards to protect due process and property rights by requiring a conviction in most cases prior to the permanent loss of property through civil asset forfeiture. Starting on January 1, 2017, California law will require a conviction prior to forfeiture in any state case where the items seized are cash under $40,000 or other property such as homes and vehicles regardless of value. This updates current law, which has a conviction threshold for cash up to $25,000.
For all future cases handled through federal courts, the new law prevents California law enforcement agencies from receiving a share of federally forfeited property unless there is a conviction in an underlying case involving seized property that is up to $40,000 in cash or for cars and homes. Previously there was no threshold whatsoever for law enforcement accepting cash or proceeds from federal forfeitures, even when there was no conviction.
The bill as introduced required a conviction prior to forfeiture in all cases and was strongly opposed by most major law enforcement lobbying groups in the state. The original version won overwhelming support in the State Senate, passing 38-1. However, law enforcement lobbying in the Assembly stymied its progress in 2015. Determined to build on the broader momentum for asset forfeiture reform, the bill authors continued to drum up support for the legislation. Diverse groups across the political spectrum came together to support SB 443 and there was a groundswell of media and public support for reforming civil asset forfeiture. After extensive negotiations with the law enforcement groups representing district attorneys, police chiefs and sheriffs, those groups removed their opposition in exchange for a threshold that allowed them to pursue cases involving larger sums of cash under existing law and procedures. After being amended, the Mitchell/Hadley bill passed the Assembly in August by an overwhelming bipartisan majority 69-7.
“The new law establishes some of the strongest property rights protections in the most populous state in the nation.” said Theshia Naidoo, Legal Director of Criminal Justice at the Drug Policy Alliance. “The reforms are a model not only because of the policy enacted, but also for how the legislative process should work to promote the best interests of Californians.”
Prior to its passage, there were very few restrictions on state law enforcement for forfeiture cases sent into the federal system. Reforms to state forfeiture procedures, established in 1994 with Assembly Bill 114 (Burton) imposed higher evidentiary standards and a conviction threshold for cash forfeitures of up to $25,000. California law enforcement found a way around the 1994 reforms by pursuing forfeitures federally where the state’s protections do not apply. In the last 20 years since California implemented these reforms, law enforcement agencies across the state chose to exploit this federal loophole, known as equitable sharing. In 2015, the Drug Policy Alliance published “Above the Law: An Investigation of Civil Asset Forfeiture Abuses in California,” a report that revealed that between 2005 and 2013 California law enforcement agencies' revenue from state forfeitures remained stable while their revenue from federal forfeitures more than tripled.
“The report highlighted the need for California to take further steps to reform civil asset forfeiture.” said Naidoo. “While the 1994 reforms provided meaningful protections, it left a gaping loophole that was exploited to financially reward law enforcement at the detriment of property owners, particularly low income and minority communities. SB 443 attempts to close the loophole by lessening the fiscal incentives to pursue cases federally and to keep civil forfeiture cases in state courts.”
Civil asset forfeiture has allowed the government to seize and keep cash, cars, real estate, and any other property suspected of being connected to criminal activity even if the owner is never convicted of a crime. While civil asset forfeiture was originally conceived in the 1980s as a way to target the resources of criminal organizations, it has become a method for law enforcement to confiscate and profit from the savings and property of those not charged with any criminal wrongdoing.
There is an emerging bipartisan national consensus that asset forfeiture requires substantial reform. In 2016 alone, at least 22 states have introduced bills to limit civil asset forfeiture. Reforms have been enacted in at least eight states (Florida, Maryland, Mississippi, Nebraska, Oklahoma, Tennessee, Virginia, and Wyoming). Of these reforms, Nebraska and Maryland attempted to address the federal equitable sharing loophole, however unlike SB 443, those reforms do not connect equitable sharing payments to a conviction requirement. SB 443 requires that state and local agencies abide by stricter standards before they profit from federal forfeitures.
SB 443 (Mitchell/Hadley) was cosponsored by Drug Policy Alliance, ACLU, Institute for Justice, Ella Baker Center for Human Rights, and Coalition for Humane Immigrants Rights of Los Angeles. Coauthors included Democratic Assemblymembers Cristina Garcia and Reggie Jones-Sawyer of Los Angeles, and Republican State Senator Joel Anderson of San Diego.