As I explained in a previous blog, State senator Mitchell’s forfeiture reform bill passed in the California Senate and is now pending in the Assembly.
We need your help getting this bill passed. Please take the time to write a letter to your state Assemblyman. Here is my letter which you may use as a model or template and substitute your own thoughts. Send your letters to Assembly Member Quirk and your own Assembly member.
Forfeiture Endangers American Rights Foundation
20 Sunnyside Suite A-419
Mill Valley, CA 94941
July 8, 2015
Assembly Member Bill Quirk
Chair, Assembly Public Safety Committee
Sacramento, California 95811
Dear Assembly Member Quirk:
On behalf of Forfeiture Endangers American Rights, I urge your strong support for SB 443, Senator Mitchell’s bill to reform California’s asset forfeiture law. Twenty two years ago, FEAR was instrumental in obtaining the passage of California’s first reform of the forfeiture law. Then Assemblyman John Burton requested a copy of FEAR’s position paper on forfeiture reform, and used it as a model for his reform bill. We worked closely with Assemblyman Burton and were very pleased when it passed, taking effect on January 1, 1994. SB 443 will be the first reform of California forfeiture laws since the Burton bill took effect. FEAR later used California’s shining example in our 8 year lobbying effort to reform federal forfeiture law, resulting in the passage of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA). Despite our efforts, CAFRA lacks many of the due process protections of California’s forfeiture law.
Unfortunately, although the Burton bill gave us the reforms we wanted, police and prosecutors got around the enhanced due process protections by seizing property and then handing it over to the federal government for forfeiture under federal law, in exchange for kickbacks from the federal forfeiture in the form of equitable sharing payments of up to 80% of the forfeiture proceeds.
This bill would plug the holes state law enforcement agencies used to circumvent state law, by prohibiting state and local agencies from seizing property and turning it over to the federal government for forfeiture under federal law (federal adoption). It also shores up a second hole that could be used to circumvent state law by prohibiting state law enforcement agencies from sharing in federal forfeiture revenue under the broader Equitable Sharing program (used to reward state and local agencies when they work with federal authorities on a federal forfeiture prosecution) by prohibiting such payments from federal forfeiture revenue unless the government obtained a conviction in the related criminal case and the federal offense contained the same elements as the state offense. This would presumably stop state and local police from profiting from assisting with federal forfeiture cases brought against medical marijuana facilities that were legal under state law.
SB 443 also improves on the Burton bill on two aspects in which federal law under CAFRA was superior to California law: the entitlement to court appointed counsel for indigent claimants in civil forfeiture cases, and entitlement to reimbursement of attorney’s fees if the claimant substantially prevails. Those are both very important provisions. Forfeiture laws and procedures are too complicated for a layman to successfully litigate pro se. Knowing the government may end up with a substantial net loss if it loses the case and has to pay attorneys fees will deter the government from filing cases that are not meritorious, and then trying to win by overpowering the claimants.
The adjustments SB 443 makes to the percentages seizing agencies get from forfeiture are an improvement as well. I still find it ethically problematic that prosecutors and courts get a slice of forfeiture proceeds, because it encourages those entities to favor forfeiture. Judges should be neutral, and should not be rewarded from forfeiture rulings that favor the government. Even if the particular court has to go through a legislative appropriation before being rewarded for the forfeiture rulings favoring the government, this is unseemly if not unconstitutional. I think that provision should be stricken. Reducing the percentage that goes to prosecutors and giving public defenders the same percentage reduces and equalizes the damage caused by the profit motive, but it is still there. Providing – for the first time – that a portion of the proceeds would go toward funding a nonprofit to provide forfeiture training for criminal defense lawyers is a very worthy goal, and less unseemly since the nonprofit would be farther removed from the actual litigators. In many parts of the state, forfeiture victims have great difficulty finding lawyers with expertise in forfeiture law. Increasing the pool of trained lawyers will improve the integrity of the system, by giving forfeiture claimants a fighting chance.
Requiring forfeiture notice to be written in plain English is a no-brainer. There is no conceivable benefit to the justice system (other than increased profits to law enforcements) from tricking claimants into making mistakes by giving hazy instructions on what they have to do to defend their cases.
Raising the burden of proof in the larger cash seizures will go a long way toward curtailing abusive roadside forfeiture traps, where travelers (often from out of state) are stopped for a sham traffic infraction, subjected to a sniff of their car by a drug dog and relieved of their money. Quite often the factors used by the government to prove its case – a drug dog sniff, racial profiling, presumptions from the way the money was stored, or the denominations – just barely squeak by under a lower burden of proof, but would not likely withstand scrutiny under a beyond a reasonable doubt standard.
Brenda Grantland, Esq.
Forfeiture Endangers American Rights