Lawmakers in California are on course to pass the most far reaching civil asset forfeiture reforms in the United States. The legislation, which was OK’d by the California State Assembly this week, and must now head back to the state Senate for a final vote and to Governor Jerry Brown’s desk for his signature, is expected to deter law enforcement in the state from using a loophole under federal law to profit from most civil forfeiture actions in the state. Should this legislation (SB 443) become law, it will send a powerful signal to Washington that policing for profit must end.
Civil asset forfeiture law allows the government to seize and keep cash, cars, real estate, and any other property. Many people experience this when they are stopped by law enforcement who then take property on the pretense that it was involved in criminal activity. The property is then considered “guilty” and it is up to the property owner to prove to the government that the property is “innocent.”
Once the government takes a person’s property, the odds of getting the property back are severely stacked against the property owner and hiring an attorney might cost far more than the value of the taken property. Most seized property is then sold and some proportion of the profits from its sale are kept by the law enforcement agencies that made the seizure.
Civil asset forfeiture has become a big source of revenue for many state and local law enforcement agencies across the country. And where state laws provide strong protections against property seizures by law enforcement in cases where no convincing evidence that the property in question can be connected in some way to criminal activity, state and local law enforcement can still turn to the federal government to get help with bagging the proceeds from a civil forfeiture that would otherwise be prohibited under state law.
For instance, California law generally requires a conviction before property can be permanently forfeited to the government, but federal law does not require the same. In order to circumvent state laws like California’s, state and local law enforcement engage a federal program at the U.S. Department of Justice known as the Equitable Sharing Program.
This federal program enables state and local law enforcement agencies in California and most other states to transfer seized property to the Department of Justice in circumvention of the laws of the state in which the seizure occurred. As much as 80 percent of the proceeds from forfeited property are returned by this federal program to state and local law enforcement for their own operations, which creates a financial incentive for law enforcement to seize property.
However, California’s SB 443 would rein in law enforcement’s ability to profit from civil forfeitures in this way. The legislation will require that California law enforcement obtain a conviction in most cases in order to profit from civil forfeiture.
This same rule will connect federal Equitable Sharing Program payments to a criminal conviction requirement, which will prevent California law enforcement from profiting from cases that involve real estate, cars or other personal property, or cash less than $40,000 unless there is a conviction. Together, these reforms are expected to affect the majority of civil asset forfeiture cases in California. Data from the Department of Justice and the state Attorney General’s Office in fact show that the majority of cases involve cash under the $40,000 threshold.
These reforms can also be expected to take a bite out of the overall size of the Equitable Sharing Program, possibly reversing what has been a disturbing trend in California. A Drug Policy Alliance report released in 2015 found that California law enforcement agencies' revenue from state forfeitures remained flat between 2005 and 2013 while their revenue from federal forfeitures more than tripled during this same time period.
California’s reform effort reflects an emerging bipartisan national consensus that asset forfeiture requires substantial reform. In 2016 alone, at least 22 states have introduced bills to limit civil asset forfeiture and reforms have been enacted in eight states (Florida, Maryland, Mississippi, Nebraska, Oklahoma, Tennessee, Virginia, and Wyoming).
At the federal level, the U.S. House of Representatives is expected take up a civil asset forfeiture reform bill in September. This legislation, known as the DUE PROCESS Act, would help give property owners fighting a federal civil asset forfeiture action greater leverage to contest a government seizure and increases the federal government's burden of proof in civil forfeiture proceedings. The DUE PROCESS Act, however, as currently formulated, does not address the incentives for law enforcement to seize property from innocent people that are perpetuated by the federal Equitable Sharing Program.
A separate bill introduced in 2015 by Senator Rand Paul (R-KY) in the Senate and Rep. Tim Walberg (R-MI) in the House and known as the FAIR Act would eliminate the Equitable Sharing Program, but the FAIR Act is not expected to advance in Congress any time soon. However, lawmakers in Congress should follow the lead of the California legislature and eliminate the Equitable Sharing Program when they take up the DUE PROCESS Act this fall.
By passing SB 443, California lawmakers are looking out for the due process and property rights of the people, and an untold number of California residents will benefit. It’s long past time that lawmakers in Washington did the same for all.
Grant Smith is the deputy director of national affairs for the Drug Policy Alliance.