Forfeiture Reform Bill Delayed
by Ari Armstrong, April 6, 2002
Even if you're found "not guilty" by a jury, that still "does not mean you're innocent of criminal activity." Or, at least, that's the attitude of Gus Sandstrom, the District Attorney from Pueblo.
So much for the presumption of innocence.
Sandstrom, along with other law enforcement agents who spoke April 4 at a House Civil Justice and Judiciary Committee in opposition to HB 1404, argued law enforcement should be able to take your property and keep it, even if they never convict you of a crime or even file charges.
Denver DA Bill Ritter echoed this sentiment. He discussed a case in which a woman hid around $15,000 in the steering column of her car. She claimed it was from a personal injury settlement. She lent the car to her cousin, who was pulled over and found with marijuana seeds. Her cousin and his companion were never even charged with a crime, and she had no criminal record, yet the police forfeited around $10,000 of her money. Ritter argued this was appropriate, because the woman didn't sufficiently document the source of her money.
A drug dog had located the money -- nearly all paper currency contains traces of illegal drugs. Of course, it is possible that the woman got the money by selling drugs. (Even if the claim about the legal settlement was true, that wouldn't provide definitive evidence about where the money in the car came from.) But Bill Ritter never proved that, or even tried to prove it.
Ritter argued that, normally, people will have "evidence of legitimacy" concerning the cash they may have on them. In effect, Ritter is willing to just assume that anyone with a significant amount of cash is a drug dealer, unless they can prove they got the money innocently. And, of course, Ritter and the police department take the money and use it for their own budgets.
If Ritter's objective was to make sure that "crime doesn't pay," then why did he give the woman a third of her money back, if he thought she got the money through illegal activity? Does Ritter believe crime should pay only a third as much? Or did Ritter's office give her back just enough money so it wasn't worth it for her to fight for the rest in court?
Bob Grant, the DA from Adams County, similarly lamented that under 1404, "The burden of proof is shifted to us."
David Kopel of the Independence Institute pointed out the double standard employed by those in law enforcement who oppose the reform bill. On one hand, they claim they need to deprive criminals of their ill-gotten gains. Yet on the other hand, they claim getting a criminal conviction is just too difficult, so therefore they should be able to pursue civil proceedings against the property.
Shawn Mitchell, the Broomfield Republican who sponsored the bill and argued on its behalf, delayed the bill in order to make some technical improvements. He said his three main goals with the legislation are to require a criminal conviction in most cases before property can be forfeited, raise the standard of proof to "clear and convincing" evidence concerning the connection of property to a crime, and redirect forfeiture funds to a more appropriate budgeting process.
The reform bill is supported by an astonishingly broad coalition. I spoke as a representative of the Libertarian Party, and Sheriff Bill Masters called in from Telluride to support the bill on the grounds that it will improve public trust in law enforcement. Sue Armstrong (no relation), Executive Director of the American Civil Liberties Union of Colorado, wrote a letter in support of the bill. The Independence Institute is generally considered to be a conservative, free-market think tank. Doug Campbell of the American Constitution Party spoke in favor of the bill, as did Douglas Bruce, author of the Taxpayer's Bill of Rights.
Several district attorneys and sheriffs spoke against the bill. Several Denver residents also urged its defeat, because, they claimed, the reform would preclude police from forfeiting drug houses to clean up the neighborhood. Mitchell argued law enforcement had unnecessarily alarmed these residents because the bill would still allow such forfeitures.
The issue does point to perhaps the most challenging aspect of forfeiture reform. 1404 requires that, if the police want to take property away from a person who they believe committed a criminal act, they must first prove beyond a reasonable doubt that the person in fact committed the crime. The problem is, what should happen when, say, the owner of a motel knowingly allows drug dealing and prostitution to take place in the motel?
Ritter argued it is essential that law enforcement be able to forfeit that property, or at least threaten forfeiture contingent upon the owner making an effort to clean up the criminal activity. 1404 (with anticipated amendments) basically agrees with Ritter on this point by creating an exception for third-party owners who are not criminally convicted but who are shown by "clear and convincing" evidence to have knowingly allowed criminal activity on their property. The standard of evidence required for such forfeiture would thus be increased from the "preponderance of the evidence" standard.
Why is this even a problem? Why can't the police just go after the people actually committing the crimes? As one legislator put it, as soon as you arrest one drug dealer, there are three more ready to take his or her place, because of the profits to be made in the illegal drug trade. In other words, police are making the argument that they simply cannot control the drug trade without forcing property owners to help carry out their policies.
I think everybody sympathizes with people living in high-crime neighborhoods marked by drug dealing, prostitution, drive-by shootings, and other associated crimes. Everybody wants to feel safe in their homes and in their neighborhoods. Nobody wants to pick up dirty syringes off their lawns.
It's not fair to require property owners to enforce criminal laws, however. The government should not be able to force private parties to carry out its policies. Of course, if a property owner willfully cooperates in a crime, surely there is room for legal sanctions. In addition, those with rental properties can be held to legal standards regarding contracts and negligence. In general, though, when it comes to violent crimes, it is the responsibility of law enforcement to pursue, arrest, convict, and incarcerate the violent criminal. There is clearly a double standard when it comes to drug crimes.
But 1404 is a limited reform measure that must deal only with the application of existing laws. At least the bill raises the standard of proof for taking property away from third-party owners so their complicity in the crime is clearly shown. The bill would would still allow the types of forfeitures that concerned the Denver residents. In any case, forfeiture from third-party owners seems to be a small minority of total forfeiture cases.
The DAs argued 1404 would inappropriately intertwine criminal and civil proceedings. However, the two are already inextricably combined. According to law enforcement, they only take property away from people they believe are criminals. (If this weren't the case, they could just as well seize people's cash at random, because most cash has traces of illegal drugs.) 1404 doesn't create any new problems on that score.
The DAs also argued a higher standard of "clear and convincing" evidence is inappropriate for a civil proceeding. However, Mitchell pointed out a number of other civil matters with such a standard. Don Quick, the Deputy Attorney General of Colorado, argued that taking a person's house to make room for a highway requires only a preponderance of the evidence. However, Kopel responded, that also requires just compensation and a more complete "discovery" process in court.
The DAs blasted Mitchell for trying to pass the legislation under "crisis" mode without giving them more time to review the proposed legislation. Both Mitchell and Kopel suggested that was nonsense. Kopel reminded the committee that, two years ago, the DAs simply killed an asset forfeiture reform bill, without offering to reach some kind of middle ground, as they claim they desire now.
Kopel also made the point that "the power of the purse belongs to the legislature exclusively." True, now a board consisting of the sheriff, the DA, and a councilor or commissioner generally determines how forfeiture money is spent. However, as I noted along with several others, a system in which the same agents are responsible for pursuing forfeiture and spending the proceeds creates fundamental conflicts of interest.
The bill, with anticipated amendments, will direct half the proceeds of forfeiture to a treatment fund and half to the local elected legislative body.
One of the better arguments was made by Jim Peters, the DA for the 18th Judicial District, which includes Arapahoe. He said in a few cases he's chosen not to saddle a youth or first-time offender with a felony but has forfeited the proceeds of drug activity. He wonders whether 1404 would allow that kind of leniency. Peters struck me as a nice guy who's really trying to handle cases appropriately and spend the proceeds from forfeiture prudently. However, at most, his concerns would merit a minor change in the bill.
The DAs argued in favor of the existing low standard of evidence in civil forfeiture because taking somebody's property allegedly doesn't interfere with their fundamental rights the way incarceration does. However, Kopel noted that property rights are indeed fundamental rights. The current low civil standard of preponderance of the evidence, with respect to forfeiting property connected to an alleged criminal act, is "just too low in a free and civil society."