Late yesterday, the Colorado General Assembly approved HB 17-1313, a bill that would bolster transparency for civil forfeiture and close a federal loophole that has generated millions in forfeiture revenue for law enforcement. Under civil forfeiture, law enforcement agencies can seize and then take title to cash, cars and other valuables without charging anyone with—let alone convicting them of—a crime.
“Colorado is now one step closer to becoming a national leader for seizure and forfeiture transparency,” said Institute for Justice Senior Legislative Counsel Lee McGrath. “Through its comprehensive disclosure requirements, this bill will play a vital role in keeping both the public and legislators well-informed about civil forfeiture in Colorado.”
Sponsored by Reps. Leslie Herod and Stephen Humphrey and Sens. Daniel Kagan and Tim Neville, the bill passed the House and the Senate by wide margins. It now awaits Gov. John Hickenlooper for signature. If enacted, HB 17-1313 would:
- Implement new biannual reporting requirements, including the type of property seized, place of the seizure (e.g. which direction on a highway), if any criminal charges were filed in relation to the seizure, if the forfeiture was contested, and the final disposition of the property;
- Oblige agencies to report their forfeiture expenditures, including spending on salaries, overtime, victim services, drug abuse programs, travel, meals, as well as capital and operating expenses;
- Require that all forfeiture reporting will be posted to a public, searchable database, to be created and maintained by the Department of Local Affairs, and require that those reports be aggregated; and
- Impose $500 fines for failure to comply with the reporting requirements. If an agency has not complied within 75 days of the due date, it must pay either a $500 fine or 50 percent of the forfeiture proceeds it received during the reporting period, whichever is greater.
“Shining a light on forfeiture spending is a particularly substantive reform,” said Jennifer McDonald, an IJ research analyst. “Colorado law lets agencies keep half of what they confiscate, enabling them to spend money outside the normal appropriations process. That self-financing undermines the legislature’s power of the purse and creates a risk of impropriety.”
In addition, the bill would prevent agencies from receiving federal forfeiture funds through the “equitable sharing” program, unless the forfeited property is worth more than $50,000 and relates to a federal criminal case. Under equitable sharing, police and prosecutors can collaborate with a federal agency or joint task force, forfeit property under federal law, and receive up to 80 percent of the proceeds—dramatically higher than what state law authorizes.
An IJ report found that between 2000 and 2013, Colorado agencies received more than $47 million through the U.S. Department of Justice’s equitable sharing program. By comparison, that is nearly four times more than what was forfeited under state law during the same period.
In recent years, 92 percent of Colorado’s equitable sharing forfeitures involved property valued at less than $50,000, according to IJ’s analysis of DOJ data. Yet those forfeitures accounted for 36 percent of the total value of forfeited property. The stark difference in percentages means that the federal government is involved in many relatively small cases.
“By closing this loophole, HB 17-1313 will protect the property and due process rights of Coloradans and preserve the state’s sovereignty from federal overreach,” McGrath noted. “Colorado agencies will be able to continue to collaborate with the federal government but the bill wisely limits that collaboration to major cases.”
Civil forfeiture has sparked a firestorm of controversy in recent years, earning criticism from figures and organizations as diverse as John Oliver, 100 different editorial boards, both the Democratic and Republican Party platforms and U.S. Supreme Court Justice Clarence Thomas. Since 2014, 21 states and Washington, D.C. have tightened their forfeiture laws, including Nebraska and New Mexico, which outright abolished the practice of civil forfeiture and replaced it with criminal forfeiture. Further legislative efforts are currently pending in at least ten other states.