If one has been convicted of a crime, it makes sense that any ill gotten gains produced by one’s criminal behavior should be forfeit. Right? We can all understand that logic.
And if the police agencies that make the busts get to keep the proceeds from some or all of the seizures of dirty money and property, so much the better. It is, as they say, a win-win.
Okay, but what if you have not been convicted and, in many cases, not even charged with a crime, should law enforcement be allowed to grab your money and/or property—and keep it—-without ever having to prove that a crime has occurred?
Under existing California law, the answer is no.
But due to a loophole in federal law (that we reported on back in April), in California, that no answer can be magically transformed into a yes. Local police or sheriffs who suspect that you might be guilty of a crime—which in the case of cvil asset forfeiture usually means a drug crime—can operate under federal law, instead of state law, if they invite the feds to work with them. Then the cops may take your $$ and whatever else, and keep it to pump up their agencies’ coffers, even if you are never convicted. Ever if you were never charged.
The policy was originally designed in the 1980s to strike a blow against big-time drug traffickers by hopefully crippling them fiscally. But, over time, the broad nature of the federal statute proved to be an irresistible lure to many local police agencies in need of additional revenue. In this way, the perverse incentive of profit making led to abuse.
California’s SB 443, introduced by State Senator Holly Mitchell, (D-Los Angeles) along with a diverse bipartisan group of six co-authors, was designed to plug the loophole. And for a while it seemed that it would. After all, the bill had amassed an impressive array of supporters and it passed out of the state senate with only one vote of opposition.
(Democrat Connie Leyva, the representative for District 20, which includes Pomona, the city with one of the highest asset forfeiture rates in the state, cast the one lonely no vote. To be specific, Pomona scooped up more than $14 million in civil asset forfeiture bucks last year, which was more than the cities of Oakland, Long Beach, Fresno and Bakersfield combined.)
Most Californians don’t like all this conviction-free asset snatching. In, a research poll taken at the end of August, 76 percent of Californians were against asset forfeiture unless the person whose property was taken was convicted of a crime. According to the poll, Republicans and Democrats were equally against the actions that SB 443 was designed to prevent.
When the bill got to the assembly, however, things changed—polls be damned. As we reported yesterday, the bill’s opponents—in the form of law enforcement lobbying groups from all over the state—suddenly showed up in force in the hallways of the capital, telling lawmakers that the bill absolutely could not be passed because local police agencies would lose far too much money, and public safety would be disastrously compromised.
Now parse that out for a minute. California police and sheriff’s departments who engage in this overaggressive forfeiture practice (which not all agencies do) should be allowed to keep the money, property and belongings taken from citizens who have never been convicted of a crime, because otherwise said cop agencies can’t balance their budgets, criminals will run rife through the countryside, and the drug king-pins win.
Despite the illogic, assembly members began to be freaked.
In a last ditch effort to save the bill, Thursday morning before the vote Mitchell and SB 433’s other authors held a press conference on the steps of the state capitol.
“We have today the opportunity to restore a core principle of American justice, and that is that no person’s property can be taken from him or her without due process,” said Republican Assemblyman David Hadley of Manhattan Beach, who was one of the main co-authors of the bill. “In the last 30 years we have strayed from that principle…..We’re here to fight for justice.”
A co-author on the senate side, Republican Joel Anderson, of La Mesa in San Diego County, spoke with equal conviction. “We don’t have a problem if the person is charged and taken to trial,” he told reporters. “What we have a problem with is seizing assets and never charging the individual. It’s wrong, it goes against everything that America stands for. We certainly want to stop crime. We want to stop drugs being sold in our communities. But we can’t do it at the cost of our personal liberties.”
Holly Mitchell, who ran the press conference, spoke first and last.
“Fifteen years ago, the California legislature passed reform measures once it was clear that police were seizing innocent people’s property under civil asset forfeiture,” said Mitchell. “Those reforms are being sidestepped by California law enforcement in order to continue bounty hunting at the expense of innocent California residents.”
Like the the rest of the lawmakers at the press conference, Mitchell expressed strong support for law enforcement, “respect for what they do to keep us all safe,” and a commitment to making sure that police have the proper resources to do their work.
But, she said, she objected to the exaggerations and scare tactics being used by lobbyists. “Bank robberies and [the actions of] criminal drug cartels are crimes under current law and should be prosecuted as such. This bill does nothing to change that….” But, Mitchell concluded, “innocent until proven guilty is the law of this land.”
The presser drew a bunch of reporters yet, by then, it was really too late to undo the damage. .
When the state assembly voted, the tally wasn’t even close. SB 443 went down in flames in a vote of 44 to 21.
Fear and intimidation won.