Earning a C+, California’s civil forfeiture laws are above average, but law enforcement circumvents their intent through participation in the federal government’s equitable sharing program so aggressive that it ranks 50th—second worst—in the country. In California, to forfeit most kinds of property, the standard of proof is beyond a reasonable doubt, and a conviction is required (though not necessarily the owner’s conviction). Only in drug cases where more than $25,000 is seized is the standard lower: clear and convincing evidence. When an innocent person asserts an interest in seized property, the government bears the burden of proving that the owner was aware of the property’s illegal use. California law lets law enforcement keep 66.25 percent of forfeiture revenue—less of an incentive than in many other states but still an incentive to seize property for financial gain.
The California Office of the Attorney General publishes annual reports of counties’ forfeiture income on its website, though it excludes important details, such as an accounting of expenditures from forfeiture funds. According to these reports, California law enforcement forfeited almost $280 million over the period of 2002 to 2013—an annual average of more than $23 million.
|Standard of proof||
Clear and convincing evidence for cash or cash equivalents of $25,000 or more; beyond a reasonable doubt—and a criminal conviction—for all other property, including real property.
Cal. Health & Safety Code § 11488.4(i); see also People v. $9,632.50 U.S. Currency, 75 Cal. Rptr. 2d 125, 128 n.4 (Ct. App. 1998) (saying the standard of proof “in this case” for cash worth less than $25,000 is beyond a reasonable doubt).
|Innocent owner burden||
Cal. Health & Safety Code § 11488.5(d).
66.25 percent (55.25 percent to police, 10 percent to prosecutors, 1 percent to a fund controlled by prosecutors).
Cal. Health & Safety Code § 11489(b)(2).
The Attorney General is required to compile annual aggregate forfeiture reports using data provided by counties.
Cal. Health & Safety Code § 11495(c)–(e).
Drug Policy Alliance. (2015). Above the law: An investigation of civil asset forfeiture in California. Los Angeles, CA: Drug Policy Alliance. Retrieved from http://www.drugpolicy.org/sites/default/files/Drug_Policy_Alliance_Above_the_Law_Civil_Asset_Forfeiture_in_California.pdf.
|Year||Reported Forfeiture Proceeds|
|Average per Year||$23,302,635|
Source: California Office of the Attorney General’s online calendar-year reports of all forfeitures made by county district attorneys and the attorney general. Forfeiture proceeds do not include the value of property retained for law enforcement use.
Unfortunately, California law enforcement has found a lucrative way to evade the state’s better-than-average laws: the federal government’s equitable sharing program. Its heavy participation in the program earns the state a rank of 50th. Indeed, a recent report by the Drug Policy Alliance noted that while state forfeiture revenue has remained flat, equitable sharing revenue has skyrocketed. Between 2000 and 2013, California agencies collected an eye-popping $696 million, or nearly $50 million each calendar year, through equitable sharing with the Department of Justice. A large majority of both assets seized and proceeds received resulted not from adoptions but from joint task forces and investigations with the federal government. This vehicle for equitable sharing will continue despite DOJ policy changes announced in January 2015. California law enforcement also hauled in almost $108 million from the Treasury Department’s equitable sharing program during fiscal years 2000 to 2013.View Local Law Enforcement Data
|Average Per Year||$49,730,716||$7,694,786|
Sources: Institute for Justice analysis of DOJ forfeiture data obtained by FOIA; Treasury Forfeiture Fund Accountability Reports. Data include civil and criminal forfeitures. Because DOJ figures represent calendar years and Treasury figures cover fiscal years, they cannot be added.