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Civil Asset Forfeiture Policy Needs Reform

Nov 19 2015, by Jessica McElfresh in Asset Forfeiture, Legal Blog

Civil asset forfeiture occurs when the authorities confiscate the property of people whose property may be connected to criminal activity — even if they themselves are never charged with a crime. Intended as a means of draining resources from criminal organizations, civil forfeiture has become a lucrative way for law enforcement agencies to fill their coffers, sometimes at the expense of the innocent.

For example, federal authorities recently confiscated a building from its owners because one of their tenants was a medical marijuana dispensary operating within California law, but in defiance of the federal Controlled Substance Act. While the dispensary was charged with violating federal law, the building’s owners were not. Nonetheless, their property was seized.

Law Enforcement Should Only Seize Property After a Conviction

Senate Bill 443, penned by Sen. Holly Mitchell, (D-Los Angeles) and David Hadley (R-Torrance), would have required that prosecutors secure a conviction before law enforcement could seize a suspect’s assets. As the law currently stands, state and local law enforcement agencies can seize a suspect’s property, and then hand it over to federal authorities—regardless of whether the suspect was convicted or even charged with a crime.

Co-sponsored by the Drug Policy Alliance, the American Civil Liberties Union, and the Institute for Justice, Bill 443 is founded upon the principle that no person’s property should be seized without due process of law, meaning until a trial shows that person’s guilt. The bill easily cleared the Senate in June 2015, but it was rejected by the Assembly on September 10, despite its wide bipartisan appeal.

The Law Enforcement Lobby Blocked Bill 443’s Badly Needed Reforms

The law enforcement lobby’s relentless efforts to defeat Bill 443, including personal calls to legislators and other pressuring tactics, succeeded in stalling this vital and common sense legislation. Discouragingly, the arguments used against the bill were little more than unsubstantiated emotional appeals that completely sidestepped the core due process issue.

For example, the California District Attorneys Association stated, “California’s asset forfeiture law will be changed for the worse, and will cripple the ability of law enforcement to forfeit assets from drug dealers.” They also claimed that state law enforcement would be completely barred from receiving assets seized from federal investigations—an assertion that is plainly false.

Another law enforcement lobby group, the Association of Deputy District Attorneys, declared that the “passage of the bill would have caused a severe public safety threat—it would have been a license to expand for drug cartels and narcotics trafficking on all levels, endangering our communities and schools.”

Some California legislators were quick to parrot the arguments of the law enforcement lobby. Assemblyman Luis Alejo, D-Watsonville, who voted against the bill, stated his position as: “You would take away one of the most important tools to deal with those folks who are creating havoc and who are creating murders and other violent crimes in your own districts.”

California Citizens Support Civil Asset Forfeiture Reform

A poll conducted by the ACLU in August of this year found that over three-quarters of California voters think that law enforcement should be prohibited from permanently confiscating property from people who have not been convicted of a crime. Another poll, from Tulchin Research, concluded that California voters of all ethnicities and political persuasions largely support reform of the civil asset forfeiture law.

This shows that California’s Assembly is not effectively representing its constituents, buckling instead to the pressure of special interest groups. Other legislative attempts at addressing the criminal justice system’s dysfunctions, such as reducing penalties for nonviolent crimes and reforming the three strikes law, were similarly blocked by the law enforcement lobby.

California voters have successfully used referendums to achieve their policy goals and to sidestep the legislative process. Propositions 36 and 47 both put in place important criminal justice reforms concerning the three strikes law and penalties for nonviolent crimes, respectively. Another referendum may be necessary to put an end to the injustices of civil asset forfeiture.

If Your Property Was Seized, Contact a San Diego Criminal Defense Lawyer

If you have had property seized by law enforcement without being charged with or convicted of a crime, you have options for trying to get your property back. A skilled San Diego criminal defense lawyer who understands civil asset forfeiture and California’s laws can explain how you might be able to protect your property from forfeiture.

Jessica McElfresh is a criminal law attorney practicing in the San Diego area. If you’re facing criminal charges or have had property seized, you can call McElfresh Law today at (858) 756-7107 for a free and confidential consultation about your case.