Asset Forfeiture Reform Passes First Vote
by Ari Armstrong, April 11, 2002
In the Federalist Papers 83, Alexander Hamilton said even those who disagreed at the Constitutional Convention "concur at least in the value they set upon the trial by jury" in criminal matters. The Founding Fathers, writes Hamilton, "regard it as a valuable safeguard to liberty" and even "the very palladium of free government."
Some contemporary Colorado prosecutors seem to have a different attitude toward juries. Bill Ritter, the District Attorney of Denver, argued today at the Capitol he needs to be able to forfeit alleged criminals' property even if he never convicts them of a crime, or even charges them. Ritter said, "We lose drug cases we should not, cases that are fairly solid cases." He complained that sometimes there is a "person on the jury who frustrates our attempts to get a conviction." On one hand Ritter argues that forfeiture is a civil proceeding independent of criminal law, but on the other hand he argues forfeiture is tied to criminal activity.
Despite Ritter's protests, the Civil Justice and Judiciary Committee voted 7-2 in favor of the asset forfeiture reform bill, HB 1404, and sent it to a floor vote.
The bill, sponsored by Rep. Shawn Mitchell (R-Broomfield), would achieve three main reforms. First, it would require a criminal conviction in most cases before the government can forfeit property. Second, it would raise the standard of proof to "clear and convincing" evidence concerning the connection of property to a crime. Third, it would remove the conflict of interest inherent in today's system in which the agencies that forfeit property also decide how the proceeds are spent. The bill would send half the money to the oversight budgeting body (city council, county commission, or state), and half the money to treatment.
The bill was heard in committee April 4 but delayed so Mitchell could make a number of technical improvements to it. Voting in favor of the bill today were Reps. Mitchell, Don Lee, Bob Bacon, Steve Johnson, Alice Madden, Jim Snook, and Joe Stengel. Voting against the bill were Cheri Jahn and Jennifer Veiga. Veiga substituted for Bette Boyd, who was excused from duties.
Mitchell argued that law enforcers are human beings, not angels. While law enforcement officers generally "exercise judgment professionally," the broad nature of the current law allows for potential abuses and "instances of overreaching." Mitchell wants to "move standards to what the DAs claim they're doing now" generally.
Madden said the "underlying [criminal] conviction is incredibly important." She noted that, according to the DAs who have testified, most forfeitures follow a conviction anyway. Ritter said he's aware of estimates that 90% to 95% of forfeitures follow a criminal conviction already, and he said of his office, "We typically get convictions." The bill aims to enable law enforcment to deter criminal activity while ensuring due process and protecting the innocent.
With respect to the distribution of proceeds, Madden stressed the need to avoid even the "appearance of impropriety." She believes spending some of the money on treatment will help address the demand side of drug abuse. Mitchell agreed, saying leaving the money with the forfeiting agencies "looks bad, it's a bad influence, and it should be changed."
Mitchell offered a "strike-through" amendment based on the changes he had made to the bill. Jahn, however, offered a competing amendment drafted by the DAs. The DAs' version would NOT require a criminal conviction, would generally raise the standard of evidence from "preponderance" to "clear and convincing," and would tighten up reporting requirements without fundamentally altering the way forfeiture proceeds are distributed.
Mitchell said Jahn's amendment didn't address his primary concerns. He also disapproved of the "rebuttable presumption" in the DAs' amendment that cash over $1,000 is the proceeds of a criminal act.
Jahn's amendment lost, Mitchell's amendment won, and the revised but intact HB 1404 passed the committee's vote. The DAs will probably try to strip 1404 of its substantive reforms in subsequent legislative hearings.
Mitchell made a number of minor changes in deference to the concerns of law enforcement. For instance, the bill originally contained a provision allowing forfeiture in the case of fugitives; Mitchell added another exception to cover instances where the alleged criminal dies before trial.
The major exception pertains to third-party owners. The bill allows for forfeiture of property from third-party owners who, while not convicted of a crime themselves, can be shown by "clear and convincing" evidence to have knowledge of criminal activity related to the property. The bill allows that, if the owner receives notice of the criminal activity, but fails to act, the property may be forfeited. Thus, the bill seeks to afford greater safeguards to innocent owners than now exist.
Assuming 1404 survives the floor vote intact, it will then face a committee vote and floor vote in the State Senate, where Bill Thiebaut is the sponsor. It is important for the success of the bill that citizens who care about asset forfeiture reform contact their legislators to urge their support and monitor the votes.