SACRAMENTO, Ca. (June 5, 2015) – On Wednesday, the California state Senate passed a bill that not only bolsters restrictions on state officials from seizing property without due process, but throws a wrench into federal efforts to do the same. The vote was 38-1.
Introduced by Sen. Holly Mitchell (D-Los Angeles), Senate Bill 443 (SB443) sets additional restrictions on the state to prevent abuses from civil asset forfeiture, a controversial practice that observers such as the Institute for Justice (IJ) have called ‘legal plunder.’
Although the bill does not ban civil asset forfeiture outright, SB443 provides some important restrictions. It requires state officials “to seek or obtain a criminal conviction for the unlawful manufacture or cultivation of any controlled substance or its precursors” before seizing assets. Notices would be required giving specific instructions to forfeiture victims about their right to receive a fair hearing to reclaim their lost property.
Should it pass into law, forfeiture victims “shall be entitled to recover reasonable attorneys’ fees and other litigation costs reasonably incurred by the defendant or claimant” after they are exonerated of a crime.
TAKING ON FEDERAL FORFEITURE
While focusing mostly on state and local actions, SB443 also contains provisions that stop federal-state collusion pertaining to civil asset forfeiture. It bars transfers of seized property to the federal government:
State or local law enforcement authorities shall not refer or otherwise transfer property seized under state law to a federal agency seeking the adoption by the federal agency of the seized property.
The bill also terminates any agreements between the federal government and the state of California that would necessitate the transfer of forfeited assets:
All property, moneys, negotiable instruments, securities, or other things of value received by any state or local law enforcement agency pursuant to any federal law that authorizes the sharing or transfer of all or a portion of forfeited property or the proceeds of the sale of forfeited property to a state or local law enforcement agency shall be promptly transferred, sold, and deposited.
SB443 makes it clear that state officials will not assist the federal government in the seizure of assets in any way unless it is expressely permitted under state law as well:
A state or local law enforcement agency may not receive all or a portion of the forfeited property or proceeds from property forfeited pursuant to federal law unless a defendant is convicted in an underlying or related criminal action of an offense specified in [SB443]… If federal law prohibits compliance with [SB443] or if a conviction in the underlying or related criminal action is not obtained, state law enforcement authorities shall not receive forfeited property or proceeds from the sale of forfeited property shared or transferred pursuant to federal law.
These provisions make this bill a substantial step forward because this lucrative practice is encouraged and promoted by the federal government in many ways.
FORFEITURE AS MAJOR CASHFLOW
In 2012, federal, state and local law enforcement gobbled up more than $4.2 billion in assets. Federal laws, along with most state laws, allow law enforcement agencies to pocket a large portion of that money. As the Washington Post put it, “asset seizure fuels police spending.”
Police agencies have used hundreds of millions of dollars taken from Americans under federal civil forfeiture law in recent years to buy guns, armored cars and electronic surveillance gear. They have also spent money on luxury vehicles, travel and a clown named Sparkles.
Federal forfeiture law makes the problem worse with so-called “equitable sharing.” Under these arrangements, state officials can hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds—even when state law bans or limits the profit incentive. Equitable sharing payments to states have nearly doubled from 2000 to 2008, from a little more than $200 million to $400 million.
Asset forfeiture is supposedly intended to stop criminal operations, but it has instead created an operation ran by police and judicial authorities where people are stripped of their property without being found guilty of a crime. This practice is a direct violation of the 4th Amendment of the Constitution and has fueled the militarization of the police and the unconstitutional federal drug war.
The bill had previously passed in the Senate Committee on Public Safety in April with a 5-2 vote, and then passed in the Senate Committee on Appropriations on May 28 with a 6-1 vote. It passed the state Senate on June 3 with a 38-1 vote.
SB443 now moves to the state Assembly for additional consideration.