CA Civil Forfeiture

As California Legislature Considers Forfeiture Bill, New Poll Shows Americans Overwhelmingly Favor Reform

WEB RELEASE: June 30, 2011
Media Contact:
Bob Ewing (703) 682-9320

Arlington, Va.—California police and prosecutors should follow state law.  That’s the simple message behind a civil forfeiture reform bill that the Senate Public Safety Committee will consider next Tuesday. According to new poll results, Americans overwhelmingly favor this and other reforms to the nation’s civil forfeiture laws.

A.B. 639, already passed by the Assembly, would help close a loophole that allows California law enforcement to use federal law to take property they likely could not take under state law, and further allows law enforcement to keep a larger share of the proceeds than state law allows, thus diverting money from the state’s general fund.  The bill will be considered in a hearing of the Senate Public Safety Committee on Tuesday, July 5, at 9:30 a.m. in Room 4203 of the State Capitol.

Most Americans oppose the kind of end-run around state civil forfeiture laws A.B. 639 is designed to rein in.  Among a random sample of 1,000 participants nationwide, 67 percent agreed that “[s]tate and local agencies should not be allowed to take property under federal law to make civil forfeiture easier and receive more in proceeds than under state law.”

Civil forfeiture is the government’s power to take property it suspects was involved in criminal activity.  But unlike criminal forfeiture, which is used to take the ill-gotten gains of convicted criminals, with civil forfeiture a person need not be convicted of or even charged with any crime to lose cash, cars, homes or other property.  Worse still, in 42 states and under federal law, police and prosecutors who take property get to keep some or all of the proceeds—giving them an incentive to pursue property, not justice.

Some states, including California, provide greater protection to property owners and limit law enforcement’s incentive to pursue civil forfeitures.  Agencies in California keep only 65 percent of forfeiture proceeds.  Yet a federal program called “equitable sharing” not only permits, but encourages, police and prosecutors to circumvent their own state laws to keep on pocketing forfeiture money.  They can transfer property to the federal government for forfeiture, take advantage of federal law’s looser standards, and then receive back as much as 80 percent of proceeds, regardless of state law.

“California law enforcement should be required to follow California law,” said Christina Walsh, director of activism and coalitions at the Institute for Justice.  “The equitable sharing loophole costs California money, encourages the forfeiture of property from innocent people and diverts law enforcement priorities away from the pursuit of justice and toward the pursuit of property.”

For California law enforcement agencies, equitable sharing is a boon:  They can take property more easily and keep more of the proceeds, 80 versus 65 percent, using federal law instead of state law.  Perhaps that is why, from 2002 to 2009, forfeitures in California under federal law outpaced those under state law by about two-to-one.  And why California leads the nation in equitable sharing, receiving nearly 20 percent of all Department of Justice equitable sharing payments in 2010.

To the state treasury, equitable sharing is a drain.  Under California law, 24 percent of forfeiture proceeds are supposed to go to the general fund.  But when forfeitures are instead processed under federal law, none of the revenue goes to the state.  Equitable sharing may have cost California more than $108 million from 2002 to 2009.

A.B. 639 would require a court order before property could be transferred to the federal government for forfeiture.  If law enforcement agencies can show a good reason for using federal law instead of state law, they could do so.  But otherwise, they would have to follow California forfeiture law.  If agencies fail to get a court order and engage in equitable sharing anyway, the state could force them to turn over 24 percent of any proceeds received—as required under state law.

Poll results also show that the public overwhelmingly favors other forfeiture reforms, including greater protections for property owners caught in civil forfeiture proceedings and removing financial incentives that encourage the pursuit of property:

• According to 70 percent of participants, law enforcement agencies should not be allowed to keep property they take for their own use.
• Law enforcement should have to prove a forfeiture claim “beyond a reasonable doubt,” as in criminal proceedings, said 73 percent of participants.  But only three states require that level of proof; forfeiture is much easier in most states and under federal law.
• Property owners should be treated as innocent until proven guilty according to 74 percent of participants, but that is the case in only six states.  In the rest and under federal law, property owners must prove themselves innocent to get their property back.
• Finally, 66 percent would do away with civil forfeiture altogether by requiring that people be convicted of a crime before law enforcement can take and keep their property.

The poll was conducted in November 2010 as part of the Cooperative Congressional Election Study National Survey and has a margin of error of +/- 2 percent.

“Private property rights are under assault by civil forfeiture laws nationwide,” said Scott Bullock, senior attorney at the Institute for Justice.  “It is time to pass reform like California’s that takes the financial incentives out of civil forfeiture and protects property owners caught up in an upside-down legal process that violates fundamental constitutional standards of due process.”