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Michael Haugen | August 25, 2015
On Saturday last, Chuck DeVore, Vice President of National Initiatives at the Texas Public Policy Foundation, wrote a column for the Sacramento Bee discussing the state of civil asset forfeiture practices in California, and highlighted a sweeping bipartisan bill that aims to strengthen the state’s laws protecting innocent property owners.
By virtue of a 1994 forfeiture reform package signed by former Gov. Pete Wilson, (R), California’s forfeiture laws are “better than in many other states,” explains DeVore. And indeed they are. Under current law, California requires that in proceedings where the value of property in question is less than $25,000, there must first be a conviction for the underlying criminal offense, and maintains that the standard of proof in the civil forfeiture proceeding shall be “beyond a reasonable doubt.” Only a handful of other states require such a high standard.
For property valued greater than $25,000, no criminal conviction is currently required, though the standard of proof is by “clear and convincing evidence,” meaning California still outperforms most other states in this regard (whose standard is usually a “preponderance of the evidence,” i.e., property was more likely than not involved in a crime).
The problem of late, DeVore explains, is that such strong protections have presented an incentive for local and state law enforcement agencies to circumvent state law, and instead utilize the federal “equitable sharing” program, which is generally far less restrictive:
“However, a legal sleight of hand called “adoption” allows California’s law enforcement agencies to transfer a civil asset forfeiture case to federal jurisdiction where protections are sorely lacking, thus, bypassing California’s more restrictive laws.
“In 2000, California lawmakers voted to restrict the equitable sharing loophole, but then-Gov. Gray Davis vetoed the measure.”
Earlier this year, former U.S. Attorney General Eric Holder placed an administrative freeze on federal adoptions under the equitable sharing program, but there are reasons to continue being wary. First, because this cessation of federal adoptions was administrative in nature, not legislative, the freeze is not permanent and can be lifted at any time. Additionally, because federal adoptions only constitute about 14% of total equitable sharing deposits, the overwhelming majority of funds dispersed to state or local agencies under equitable sharing weren’t affected by Holder’s administrative rule, and can continue apace.
Which brings us to California’s proposed reforms, in the form of Senate Bill 443. According to DeVore, this bipartisan bill further strengthens California’s forfeiture laws, by “prohibiting transfer of a state forfeiture matter to federal authorities” via adoption, which should put to rest any lingering uneasiness about the possibility of federal administrative edicts being lifted. SB 443 also allows for the reimbursement of court expenses for those defendants who get their money back in civil forfeiture cases–expenses which are often times, DeVore states, “a major barrier for many who calculate that the cost to fight an unjust seizure exceeds the value of the assets taken by government.”
Currently in the House, SB 443 passed the state Senate in June with only a single “no” vote.