The California Senate unanimously approved a landmark civil asset forfeiture reform package last week.
If signed by Gov. Jerry Brown, a Democrat, the bill would clamp down on one of the most pernicious practices in civil forfeiture: the bypassing of state law via the controversial federal equitable sharing program. It would also expand the range of cases for which criminal convictions are required under state forfeiture law.
The move caps a year of drama that nearly saw forfeiture reform die in the Golden State. Last year, state senators voted 38-1 in favor of the reform package, SB 443. But under pressure from law enforcement groups, the bill failed in the California Assembly.
After some reworking by lawmakers, law enforcement groups seem to have dropped their objections and the bill sailed through the California Legislature, with only seven elected officials voting against it.
California’s state forfeiture laws are already more protective of property owners than those of most other states. Under current state law, the evidentiary standard in most civil forfeiture cases is “beyond a reasonable doubt” and a conviction is required; only in drug cases dealing with seized cash of more than $25,000 is that standard lowered to clear and convincing evidence.
Unlike many states and the federal government, in innocent owner cases, California law establishes that the state bears the burden—as it should—of proving that a property owner “consented to the use of the property with knowledge that it would be or was used for a purpose for which forfeiture is permitted.”
But California law is not perfect. Law enforcement agencies that engage in property seizures, as well as the prosecutors who handle forfeiture cases, are able to receive a combined total of 66.25 percent of any resulting proceeds. This direct financial interest in the outcomes of cases not only creates a conflict of interest, it has the potential to warp the priorities of law enforcement officials.
The Heritage Foundation has documented a number of disturbing instances where authorities appear to prefer seizing property to other critical law enforcement functions, like arresting and prosecuting suspected criminals.
California’s conviction requirement ameliorates this concern when cases proceed under state law, but there is a significant “loophole” that agencies can use to bypass this protection by participating in the federal equitable sharing program.
When property is seized in the course of joint law enforcement operations, it can be forfeited under federal law via the equitable sharing program. Federal evidentiary standards are a much lower “preponderance of the evidence,” and innocent owners bear the burden of proving they did not know about, or consent to, any illegal uses of their property.
California agencies can receive even more money—up to 80 percent of the proceeds can be returned via equitable sharing payments—than state law permits, and there is no criminal conviction requirement. This money is then available to be spent without oversight by state or local elected officials.
You might be forgiven for thinking this equitable sharing loophole is the exception rather than the rule, but in California, it’s the preferred means of forfeiting property by far. In fact, while state agencies forfeited roughly $279 million in property (itself an amazingly high figure) between 2002 and 2013 under state law, they received over $800 million in equitable sharing payments dolled out by the federal Justice and Treasury departments between 2000 and 2013.
The bill, if signed, would help to rectify some of these shortcomings:
- Close the equitable sharing loophole. State law enforcement agencies would still be able to participate in joint law enforcement operations with federal agencies, including those that involve the seizure of property. However, state agencies would be banned from receiving equitable sharing payments unless “a defendant is convicted in an underlying or related criminal action.” The bill makes an exception to the conviction prerequisite in cases where cash valued at over $40,000 has been seized. SB 443 would also ban the practice of seizing property under state law and then transferring it to federal authorities via a process known as “adoption.” The Department of Justice announced last year that it was terminating federal adoption in most cases, but as this policy shift was an internal rule rather than a statutory commandment, it could be restarted at any time.
- Up the cash threshold for the conviction exception to $40,000. Cash seizures in amounts above $40,000 would be forfeitable without a criminal conviction, and the corresponding evidentiary standard in such cases would be clear and convincing evidence. The prior threshold was $25,000.
- Provide reasonable limits to the conviction requirement. While in most cases prosecutors would have to win a criminal conviction to forfeit property, there are some exceptions beyond the value of cash seized. Property could still be forfeited without a criminal conviction if no claims to the property are filed, or if the defendant, in a related criminal case, “willfully fails to appear as required” in court.
- Provide greater transparency. The attorney general would be required to publish a report detailing the number of forfeiture cases undertaken by state and local agencies. The report would also contain information about any corresponding criminal cases, including whether convictions were obtained or charges dropped, as well as the disposition of forfeited assets.
The reforms contained in SB 443 would not hinder legitimate law enforcement operations targeting kingpins, criminal enterprises, and drug cartels—the worst-of-the-worst offenders that were the original targets of civil forfeiture proceedings in the 1980s.
But, by helping to provide greater transparency and ensure that law enforcement groups cannot routinely and brazenly circumvent state laws, SB 443 will do much to improve the forfeiture landscape in California.
Now that SB 443 has passed the California Legislature, Brown has until the end of September to sign or veto it.