Civil Liberties, Criminal Justice, Featured, Peter Blake

Blake: Law enforcement nibbles away at ambitious civil forfeiture bill

Rookie state Sen. Laura Woods started by “swinging for the fences” when trying to cut down on civil forfeiture abuse by law enforcement.

But strong opposition to her Senate Bill 6 by police chiefs and sheriffs has persuaded her to just try and slap a single up the middle instead. Even that won’t be easy.

It was apparent the measure was in trouble when it was laid over before debate even began in the Senate Judiciary Committee last week.

Discussions with so-called “stakeholders” has led to a major re-write of the bill, which Woods now expects to come before the committee the week of Feb. 16.

Give Woods, an Arvada Republican, credit for trying to tackle a major issue right out of the box. It’s unlikely even a veteran lawmaker could do any better with a bill as strong as she introduced.

The revised Woods bill still finds support by two improbable allies, the American Civil Liberties Union and the Rocky Mountain Gun Owners.

That’s because civil asset forfeiture isn’t a partisan issue. Republicans and Democrats who believe strongly in civil liberties understand that it’s wrong for law enforcement to take property from people who haven’t been convicted of a crime. But those in both parties who tend to give law enforcement the benefit of the doubt are quick to forgive its predations, which are called by critics “policing for profit” or “seizing for salaries.”

icon_op_edThe original bill repealed many exceptions in the current law which authorize a forfeiture action to proceed without a criminal conviction.

The original version would also give the person whose property was seized the right to a hearing and a restoration order if it looks as though a court case will be resolved in his or her favor, or if the property isn’t needed as evidence in an investigation. The owner would also have gotten it back if he needed the property to pay for legal counsel.

The first draft also would have prohibited Colorado law enforcement agencies from participating in federal forfeiture actions unless that property has a value of over $50,000. That’s important because local law enforcement agencies like to bring the feds into their cases to get around restrictive state laws in Colorado and elsewhere that prohibit most forfeitures without a conviction.

The Department of Justice has what it calls an “equitable sharing” program when it is called in to assist local cops in a seizure. No conviction is needed to keep seized property and when it is taken the feds get 20 percent of the proceeds and the locals 80 percent. That may be equitable for law enforcement, but not for the property owner. This program was slightly modified under a recent order by outgoing Attorney General Eric Holder, but it’s still basically in place.

“You’re swinging for the fences with this bill,” said an admiring Lee McGrath of the Institute for Justice when he was reviewing the bill.

“I am not anti-cop,” says Woods. “I am just pro-liberty, pro-Constitution and pro-civil rights.”

But law enforcement got her to soften the bill. No longer would a criminal conviction be virtually the only justification for keeping seized property. Many of the exceptions that allow law enforcement to use asset forfeiture without a criminal conviction were restored. Once again, it would be enough simply to file charges if the defendant leaves the state, is in custody elsewhere, doesn’t file an answer in civil court, dies or simply fails to make a claim for the property. Woods, persuaded by police arguments, called these “compelling reasons” to amend the bill.

The original bill provided that property seized, or the proceeds from its sale, would go to the state’s general fund instead of directly to the law enforcement agency. That’s good in that law enforcement should be subject to appropriations like every other state agency, and not free to commandeer its revenue. The revised version would have it go to the city or county government’s general fund instead of the state’s. That’s not a bad change, even though it probably means much of the money would still go back to the police agency.

The original civil forfeiture laws were enacted decades ago supposedly to help law enforcement go after big criminal syndicates. But in fact they are used to go after small-timers, especially poor defendants who can’t afford lawyers. They may get public defenders to help them with criminal charges, but they get no help when the government goes after their property in a separate civil case.

There’s a “two-track” system that works to the benefit of law enforcement, said IJ’s McGrath. “It’s a complete legal fiction that somehow your car is guilty of a crime, or liable for a crime and therefore has its own identity.”

McGrath said many states are like Minnesota, where the value of the average seizure is $1,400 and 95 percent are less than $5,000. In Colorado, he said, law enforcement admits it asks the feds to participate in “equitable sharing” when the proceeds are as little as $5,000.

“The only people defending these laws are those who are direct beneficiaries,” McGrath noted.

“We’ve still got a really good bill,” Woods maintained in an interview.

If so, let’s hope it can at least get out of committee and reach the floor.

Longtime Rocky Mountain News political columnist Peter Blake now writes twice a month for CompleteColorado.com. Contact him at pblake0705@comcast.net You may re-publish his work at no charge and without further permission; please give full credit to Peter Blake and www.CompleteColorado.com.

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