On February 25, 2015, California state Senator Mitchell introduced SB 443, which makes very progressive amendments to California’s asset forfeiture laws. On June 3 it passed the state Senate by a vote of 38 to 1! On June 4 it was introduced in the state Assembly, where it remains pending.
Here are the features of the bill:
- raises the government’s burden of proof in cases involving forfeiture of over $25,000 in cash or negotiable instruments from clear and convincing evidence to beyond a reasonable doubt.
- prohibits state/local law enforcement agencies from seizing property and transferring it to the federal government under the federal adoption program.
- requires all money received from the federal government by state or local law enforcement to be distributed according to the state forfeiture scheme.
- prohibits state/local law enforcement from sharing in federal forfeiture revenue unless there was a conviction in the related criminal offense, and the offense must contain all of the elements of the state drug offense. (This would seem to protect against forfeiture for medical marijuana activities legal under state law.)
- requires the notice of forfeiture to explain the claimants’ rights and procedures in plain language.
- requires appointment of counsel for the forfeiture case if the claimant has court appointed counsel in a related criminal case.
- entitles claimant or defendant who substantially prevails to recover reasonable attorney’s fees, and requires the attorney’s fees to be paid directly to the criminal defense lawyer. (This is apparently intended to address the problems caused by the obnoxious ruling in Astrue v. Ratliff, 130 S.Ct. 2521 (2010), where the U.S. Supreme Court allowed an attorney’s fee award to be seized by the government to pay the client’s debts to the government.)
- reduces the percentages that the seizing agencies may obtain from each forfeiture from 65% to 54%, reduces the portion that goes to prosecutors from 10% to 5%, and for the first time, gives 10% to a fund, to be distributed to the courts in the jurisdiction where the case was prosecuted (with distribution made only by legislative appropriation) and 5% to the public defender’s office, and (again for the first time), gives 1% “to a private nonprofit organization composed of local criminal defense attorneys, which shall use these funds for the exclusive purpose of providing a statewide program of education and training in the use of laws permitting the seizure and forfeiture of assets under this chapter.“
- imposes additional reporting requirements including statistics on state forfeitures vs. joint state/federal actions where the forfeitures are prosecuted under federal laws, and statistics on the charges and their disposition.
I was very proud when I noticed that this bill strikes the language “this section shall become operative on January 1, 1994.” That was the date, 21 years ago, that the Burton bill took effect. I am very proud that the work Forfeiture Endangers American Rights and I did to drastically reform California forfeiture law remained in effect, unaltered ever since, until this new reform bill improved it!
I think this bill is a great step forward. The Burton bill made state forfeiture law better than federal in many respects but the cops easily circumvented it with federal adoption. Also, by failing to provide any mechanism for court appointed counsel or attorneys’ fees reimbursement, it left indigent claimants unable to obtain counsel. This bill plugs those holes. Please urge your Assemblyman to support this bill.