1404 Passes Senate Committee
by Ari Armstrong, April 28, 2002
Denver DA Bill Ritter believes some citizens should be treated as guilty until they prove themselves innocent, he confirmed April 25 at a state senate committee hearing on 1404, the asset forfeiture reform bill.
A defense lawyer testified about a 1990 case in which a Mexican citizen working legally in Alaska earned several thousand dollars over the summer. When he tried to fly back home from the Denver airport, the police caught him carrying the cash and law enforcement took 60% of it. According to the lawyer, he chose not to spend the time and money to prove himself innocent to get back the money.
The case happened before Ritter came to office, so he was unable to comment on the details. "I don't know why there was no effort to rebut" the allegations, he said. However, he added, that's "how the case should have been worked out." He said currently it is possible to "rebut the presumption" that the cash you may be carrying is connected with a crime.
Despite Ritter's protests, the Public Policy and Planning committee voted 5-1 in favor of the bill. Senators Pascoe, Andrews, Matsunaka, McElhany, and Thiebaut voted yes, while Senator Perlmutter voted no. However, Perlmutter expressed support for many of the principles behind the bill, even though he wanted to see some changes. Senator Musgrave was excused and wasn't in attendance.
The bill next heads to the Senate floor and then to Governor Owens' desk.
Ritter has proven to be the most effective voice in opposition to forfeiture reform. He has expressed the strongest arguments against the bill, and because of his popularity in his community he has been able to generate some citizen opposition to the bill. However, his arguments ultimately buttress the case in favor of the bill.
In an April 21 letter to the Denver Post, Ritter wrote, "At present, the civil and criminal processes are separate and independent, and they should remain so. Prosecutors are careful not to go forward on criminal cases just to strengthen a position on a civil forfeiture, and vice versa, Tying the processes together removes that important distinction and may create serious ethical dilemmas."
But that argument is nonsense. What is unethical is taking property from a person before proving he or she is a criminal. Today's laws are what confuse the criminal and civil matters, and the reform bill would improve the situation. Under the reform bill, in most cases prosecutors would have to prove the criminal case, and only then could they pursue forfeiture. The processes would be distinct.
Former Colorado Supreme Court Justice Jean Dubovsky testified the bill actually lessens ethical conflicts. She also pointed out the bill does not create more problems of "double jeopardy," as some had claimed.
Nothing in the bill would prevent the temporary seizure of property for evidentiary or safety purposes. What is at issue is the forfeiture of property -- that is, the permanent transfer of ownership to the government. (Obviously, inherently illegal items such as drugs could never be returned under any circumstances.)
What is surprising is that Ritter is so concerned about the alleged ethical problem of requiring a criminal conviction prior to forfeiture, yet he is utterly unconcerned about the very real ethical problems caused when district attorneys and others in law enforcement act as bounty hunters.
David Kopel has made the case eloquently that the executive branch should never be able to decide how to spend money. That is solely the job of the legislative branch of government. When district attorneys and police get to keep the proceeds of forfeiture, as they do today, they operate under inherent conflicts of interest.
1404 would first pay of lien holders, innocent co-owners, and victims. Then 50% of the money would go to treatment, and 50% of the money would go to the relevant legislative body (city council, county commission, or state).
In his letter, Ritter continues,
Citizens should also understand that there are many cases in which criminal activity needs to be halted, but a criminal conviction won't necessarily occur. One example is when law enforcement finds a large amount of drugs and cash in a meth lab and no single suspect can be sufficiently linked to the operation. In this type of case, the meth lab can be shut down, the drugs and money confiscated, and the neighborhood can be restored, all without a criminal conviction.
Ritter's argument is disingenuous. He knows full well the bill contains exceptions that would allow him to proceed in such a case.
1404 contains four main exceptions to the requirement to seek a criminal conviction. First, if a property owner has actual knowledge or notice of ongoing criminal activity, yet fails to act, then forfeiture may proceed. However, the bill would protect third-party owners more than current law does. Today's law says forfeiture may proceed if the property owner "should have known" about criminal activity. This standard is subjective and open to abuse. In addition, the bill raises the standard of proof in forfeiture cases from "the preponderance of the evidence" to the standard of "clear and convincing evidence."
Second, if an alleged criminal flees from justice, forfeiture may proceed. Third, if an alleged criminal dies, forfeiture may proceed. (This exception was added when U.S. Prosecutor John Suthers raised the example of a drug lord who shot himself as officers were closing in on him.) Fourth, if nobody makes a claim on the property, forfeiture may proceed.
In Ritter's example, if somebody claimed the property, that would clearly link the person to the crime, thereby subjecting him or her to both criminal prosecution and forfeiture proceedings. If nobody claims the property, Ritter gets to pursue forfeiture. In other cases, Ritter may be able to provide notice to the property owner and afterwards pursue forfeiture.
During the April 25 hearing, Ritter made perhaps the strongest argument against the bill. He said that requiring a criminal conviction for the property owner, but only notice for a third-party owner, creates a "double-standard." However, this is just as much an argument in favor of getting rid of the exception when third-party owners are notified. Of course, Ritter simply wants to gut the bill by removing any need for a criminal conviction.
There is a reasonable justification for the exception. According to Ritter himself, nearly all forfeitures (90-95%) proceed after a criminal conviction, anyway. So we really are talking about a minor exception to the general practice. The two standards are appropriate to two different cases under the law. If the owner of a property is guilty of a crime, then that guilt should be proven. Criminal proceedings cannot be pursued against a third-party owner, and only minor fixes are required of the owner. Thus, the exception based on providing notice to third-party owners makes sense. I do worry, however, about law enforcement placing unreasonable demands on third-party owners.
Nat Bostwick of Denver replied to Ritter in an April 28 letter to the same paper.
I agree with... Ritter['s] assessment that the passage of HB 1404 will be a step backward. It will be a step backward to a time when everybody agreed that the Fourth Amendment of the U.S. Constitution, the one protecting the citizenry from government seizure without due process of law, meant what it said. The District Attorney proudly calls for continued seizures "without a criminal conviction." Substitute the words "due process of law" in his letter and you will better understand what I mean.
Ritter did clarify one important issue in his letter. 1404 does not address the issue of city seizures. Originally, the thinking was that the bill could address that problem as well, which is why a number of people, including myself, related examples pertaining to city ordinances. But then it was decided a single bill could only ably reform state statutes.
At the hearing, Ritter and others directly took on cases where abuses had been alleged. In at least one case, Ritter made a pretty good response that the forfeiture was appropriate. In general, however, either 1404 would have allowed a forfeiture to proceed when appropriate, or 1404 would have blocked the forfeiture if it wasn't appropriate. None of the cases reviewed provide reasons to oppose 1404, and some of them provide reasons to support it.
It should be noted here that only a tiny fraction of the total number of forfeiture cases have been reviewed. A complete review would take thousands of hours to complete. Out of the small number of cases reviewed, a handful seem to show an abuse of the forfeiture laws. However, the law should be reformed even if it allows only some abuses. The Bill of Rights is supposed to apply to everybody.
Current forfeiture law opens the door wide to abuse. Sure, any law can be abused. But laws which are inherently easy to abuse should be changed. Part of the reason law enforcement has been careful not to abuse the law is simply because of the reforms proposed in 1992 and again in 2000. The DAs know that obvious abuses of the forfeiture laws would lead to the sure passage of reforms. However, even if we grant current laws are infrequently abused, still they create perpetual public concern about the laws. Not only might some abuses never surface publicly, but future DAs may not be as conscientious as current DAs.
The law should promote the best incentives possible so as to curb abuse to the greatest extent. As an analogy, if we entirely eliminated jury trials and the presumption of innocence, and allowed law enforcement to serve also as judge, jury, and punisher, it could be that those in law enforcement wouldn't often abuse the system. But the system would be inherently open to abuse. Indeed, the entire American system of checks and balances is intended to reduce and disperse perverse incentives to the greatest extent possible. Increasing accountability with respect to forfeiture laws is compatible with these general legal principles.
At the hearing, Representative Alice Madden testified about a forfeiture case she had worked on in her legal practice. According to Madden, her client was a pawn shop owner who had made technical paperwork errors and pled guilty to misdemeanor charges. His entire building was forfeited.
A prosecutor who had worked the same case testified after Madden. He said the pawn shop owner had been warned multiple times and his paperwork errors led to him taking in stolen property.
Even assuming the worst about the pawn shop owner, nothing about the case would justify the transfer of the building to the government. If he knowingly received stolen goods, then he should have been convicted of a felony. If he only made innocent errors, then he should have compensated the victims of the negligence, not given up his property to the government.
Terrence Carroll and Christie Donner testified in favor of the bill. Carroll said, "We do not want to see Constitutional rights and due process trampled on." Carroll serves as a Baptist pastor in Denver. Donner focused on the money side of forfeiture and argued law enforcement should not be able to keep the proceeds of forfeiture. She read supportive statements from Sue Armstrong of the ACLU and David Kopel of the Independence Institute. I read the remarks of Sheriff Bill Masters, the only Colorado sheriff to publicly support the bill (as the sheriffs' lobbyist reminded me).
Two Denver residents testified in opposition to the bill. Cecilia Underhill said forfeiture has played a large role in cleaning up her high-crime neighborhood. However, Sen. Pascoe reminded her the bill doesn't prevent forfeiture, it "protects the liberties in our Constitution." Underhill admitted that "some people have suffered" because of the law, but she said, "I would hate to see us weaken the powers... of our DAs and our policemen."
Christie Romano also expressed faith in law enforcement to make the right decisions under the forfeiture laws. Senator Perlmutter reminded her of the "awesome power" of forfeiture and wondered if she worried her property might be seized if a crime was committed on it. She said "she would not possibly be charged," because she has "been at the table" with the DAs.
Perhaps this is the crux of the philosophical debate. Civil libertarians believe the law should be inherently difficult to abuse. They believe the powers of law enforcement should be tightly constrained. Others believe law enforcement should have the power to determine who is guilty and who is innocent and take action accordingly.
Romano and others claimed the bill would actually attract criminals to Colorado because the bill is "criminal-friendly" and "anti-law enforcement." These obvious hysterics have probably helped the bill, actually.
Even though Perlmutter voted against the bill, at one point he wondered, "Have we gone too far and given too much authority to police in the name of safety?" This was refreshing rhetoric, especially coming from a Democrat.
Thiebaut, the senate sponsor of the bill, offered perhaps the most succinct reason for supporting the reform measure: "Power corrupts, and absolute power corrupts absolutely."
FROM THE COLORADO CRIMINAL JUSTICE REFORM COALITION: (4/26)
GOOD NEWS!!! Last night, the Senate Public Policy and Planning Committee passed HB 1404 on a 5-1 vote. Voting FOR HB 1404 were Senators Andrews, Pascoe, McElhaney, Matsunaka, and Thiebaut. Senator Perlmutter voted against the bill. Both Senator Perlmutter and Matsunaka believe that reform needs to happen but wants to work with Sen. Thiebaut on amendments before HB 1404 is heard on the Senate floor sometime next week.
ACTION ALERT! HB 1404 will be voted on by the full Senate the week of April 29th. We expect that there will be efforts to weaken HB 1404 through amendments on the Senate floor.
WHAT YOU CAN DO
(1) Contact the following Senators and urge their support for HB 1404:
DENVER METRO AREA
EL PASO COUNTY
Sen. Lewis Entz
(2) CALL GOVERNOR OWENS AND LET HIM KNOW YOU SUPPORT HB 1404. Despite the overwhelming support HB 1404 received in the House (51 in favor - 11 opposed), the Governor has not committed to signing HB 1404 when it gets to his desk. Switchboard (303) 866-2471.
For more information, contact Christie Donner (CCJRC) at ... or Ari Armstrong (CO Libertarian Party) at ...
THANK YOU FOR YOUR SUPPORT OF HB 1404
Current Colorado civil asset forfeiture laws allow the state to take property from an owner, even if the owner is never charged or convicted of a crime, and allow law enforcement to use the proceeds for their own budgets. "Seizure" is when law enforcement takes possession or control of real property, personal property or cash while "forfeiture" is when a property owner permanently loses all right, title and interest in the property. HB 1404 DOES NOT affect law enforcement's ability to seize property, in any way.
WHAT THE BILL DOES:
***Requires a criminal conviction before property is forfeited in most
cases. The bill allows for forfeiture without a criminal conviction in
the following situations:
****Raises the standard of proof from "preponderance of evidence" to "clear and convincing evidence", a more appropriate standard for this type of civil proceeding. Also requires the court to ensure that forfeitures are proportional to the crime.
*****HB 1404 redistributes the revenue generated from asset forfeiture
and brings it into an appropriate budget process. Despite a 1992
Colorado law requiring law enforcement and district attorney's to submit
an annual forfeiture report to the state, only a handful of agencies have
HB02-1404 is a bipartisan effort to ensure property owners have "due process" without undermining law enforcement's ability to use forfeiture as a legitimate tool to fight crime. HB 02-1404 also brings the revenue generated from asset forfeiture into an appropriate budget process that provides accountability and removes any appearance of impropriety. Similar reforms have been enacted in NM, UT, OR, and MO.