By David Hadley and Holly J. Mitchell
A core principle of American justice is that we are all considered innocent of a crime until we are proven guilty.
As with our personal liberty, so with our property. For most of American history, it has been necessary for the government to prove that someone has engaged in wrong-doing (criminal or civil) to seize assets from that person.
But at the height of the drug war hysteria of the 1980s, Congress and state legislatures passed “civil asset forfeiture” laws to allow law enforcement to take property and cash from people without convicting them of a crime — or even charging them. Right now, a police officer only has to declare that he or she believes that the contents of a suspect’s pocket or bank account is “drug money” or that their property comes from drug profits.
Since the adoption of such civil asset forfeiture provisions, billions of dollars in cash, cars and homes have been seized and kept by the government without a trial. And here’s the kicker: the agency that impounded the cash and property generally gets to keep much of the forfeited money for its budget. That obviously creates dangerous incentives for law enforcement agencies — it’s like paying IRS agents on commission.
California law is better than federal law in this area, generally requiring a conviction before property is permanently forfeited and providing protections for guiltless family members. However, California law has also allowed its law enforcement agencies to partner with the feds and take advantage of federal asset forfeiture provisions where no conviction is required. The feds take 20 percent of the value, and send 80 percent back to the agency that took the property in the first place.
An April 2015 Drug Policy Alliance report concluded that asset forfeiture financial incentives lead some California agencies to beef up their forfeiture teams, while cutting back on patrol and investigation of serious or violent crime. Most law enforcement officers act with integrity, but federal law perversely rewards those who prioritize confiscating “contraband” over convicting criminals.
It’s wrong for government to take a person’s property without a trial or conviction. The bounties have to stop as well: better to beef up law enforcement resources than to encourage officers to seize the assets of the innocent as well as the guilty.
It is this belief in American justice — innocent until proven guilty — that has brought a Democratic state senator and a Republican state Assembly member together. Our bill, SB 443, will end the financial incentives to shift cases into the federal system, and will handle these cases in California courts.
SB 443 won’t change the powers of street cops or detectives to take property or cash they believe is part of a drug operation. However, if there is no crime proven, or no case brought, the property will be returned. That’s basic due process, and the difference between right and wrong.
We are part of a national bipartisan movement to reform civil asset forfeiture. For example, Republican congressional leaders and the Democratic U.S. attorney general recently cooperated in temporarily ending these practices at the federal level. Our bill will make that change permanent in California.
The California Senate passed our bill by an overwhelming 38–1 vote in June, sending it to the Assembly. We are eager to move this reform to Gov. Brown’s desk for his signature.
We are united by a commitment to justice. No one — not you, not me, and not your neighbor — should lose our property to the government without due process.
Assemblyman David Hadley, R-Torrance, represents the 66th Assembly District. State Sen. Holly J. Mitchell, D-Los Angeles, represents the 30th Senate District.