Last week, California legislators succumbed to pressure from state and local law enforcement officials by failing to pass SB 443, which would have drastically improved the state’s civil asset forfeiture law. Lawmakers in Sacramento will now have to explain their controversial vote to voters across the Golden State; voters who are hostile to forfeitures by a massive 76 percent to 14 percent.
The bill had overwhelming bipartisan support when it was introduced earlier this year, and would have required a conviction in either a state or federal court before property could be permanently forfeited to the government. However, seeing the new reforms as a threatening to their budgets, the California District Attorneys Association (CDAA), as well as other state law enforcement agencies, launched a pro-forfeiture campaign aimed at dissolving support for the bill.
Currently, California’s asset forfeiture law is sorely lacking in protections against asset forfeiture abuse. The state’s forfeiture requirements protect property owners more than some states by enforcing a “clear and convincing evidence” standard for cash forfeitures; requiring “beyond reasonable doubt” standard for real property forfeitures; and eliminating profit incentives for law enforcement. However, one loophole negates any protections the state forfeiture law provides Californians.
Like many other states with weak asset forfeiture laws, California allows state and local law enforcement to participate in equitable sharing programs with the federal government. Equitable sharing programs allow state law enforcement to skirt state law by using federal forfeiture rules to take a person’s assets. Through the practice of equitable sharing California was able to collect over $305 million in seized assets between 2000 and 2008—averaging nearly $34 million each year.
Law enforcement agencies and the CDAA rely heavily on the revenue from asset forfeiture to line their coffers, so these reforms pose a serious threat. Rather than reforming their budget practices, they used intimidation tactics and personal cell phone calls to legislators in order to kill the bill.
Similar fear-driven campaigns by local law enforcement agencies in other states have cropped up in response to asset forfeiture reforms. The Departments of Justice and Treasury threatened New Mexico with ending it equitable sharing program if reforms were passed. In response, New Mexico not only passed asset forfeiture reform, but abolished it entirely. In May of this year, Montana passed asset forfeiture reform that requires a criminal conviction prior to permanent forfeiture, as well as several other requirements that beef up protections for property owners. Other states making strides in asset forfeiture reform are Minnesota, North Carolina, and Michigan.
California should use the momentum of these states to revisit its weak asset forfeiture laws. Demanding a conviction is the only way to ensure due process is administered in forfeiture cases. Moreover, local law enforcement should not be able to skirt state law by using the lax federal rules to make an end-run around the legislature.