California Forfeiture Law Sunsets: Prosecutors Try to Expand Forfeitures But Must Forfeit Present Law - F.E.A.R. Chronicles, Vol 2. No. 1, (November, 1993) intro by Judy Osburn, reprinting article from Georgetown Gazette, by Tom Daly It is easy for police and prosecutors on salaried time, using tax supported transportation and communication, to lobby diligently for expanded forfeiture laws. In addition to other horrors, California's SB 1158 would have allowed law enforcement to go back 10 years in seeking a basis for forfeiting property. This time, however, the state legislature also heard testimony from forfeiture victims, real estate associations, chambers of commerce and F.E.A.R. activists. Changes to Forfeiture Laws by Tom Daly, is reprinted from the September 21 edition of the Georgetown Gazette: On Thursday, September 9, it appeared that Senator Ken Maddy's SB 1158 was dead in the water as California Legislators rushed to pass hundreds of last minute bills before the midnight, September 10 dead line. If it had been enacted, SB 1158 would have given law enforcement and prosecutors a great deal more power in their quest to seize and forfeit assets from California's citizens. Several weeks ago any prosecutor in the state would have bet Maddy's bill would pass. This was because the law enforcement lobby had covered every base in Sacramento and laid the pressure on hot and heavy because their budgets depended on the continuation of being able to use forfeited assets. They wanted Maddy's bill because it would have made seizing assets easier and the law would have become permanent. There was also Assemblyman John Burton's AB114 floating around and as the time for passage of new legislation loomed near, that bill, with some control on law enforcement built in, appeared to gain ground in the legislature. During that last critical week, Maddy and Burton attempted to blend their bills together to come up with something they could sell to their fellow legislators. Attorney General Dan Lungren, the real sponsor of Maddy's bill, was tearing his hair out as he saw chink after chink develop in his law enforcement lobby' armor. Papers like the Gazette became more and more critical at the seizure and forfeiture process. TV stations picked up on the subject as well and ran some hard-hitting spots questioning how this money was raised and how it was being spent. Along with several people representing FEAR (Forfeiture Endangers American Rights) I spent most of the day on Tuesday, September 7, at the State Capitol. I delivered copies of the September 7 Gazette to key leaders and committee people and we hand delivered a letter questioning forfeiture to every senator and assemblyperson. Additionally we met with Assemblyman John Burton who was obviously upset by the pressure being put upon him from all sides regarding forfeiture. I left.the Capitol with the feeling that Maddy's bill may go down in flames, but I was pretty sure that a watered down version of Burton's AB114 would survive. 0n Saturday morning, September 11, I learned that the legislature had failed to enact either Maddy or Button. Looking back, I know that FEAR had a lot to do with influencing the ultimate outcome on this decisive issue. By not enacting new legislation, the legislature is allowing laws passed in 1989 to sunset, taking the seizure and forfeiture procedure back to laws that were in place in 1988. These laws, which will become re-operative on January 1, 1994, will make it more difficult for law enforcement to seize and forfeit assets. I did a quick analysis of the existing law and the old 1988 law and the major changes are: l. Computers, programs and software will no longer be forfeitable. 2. Arms or weapons will no longer be forfeitable. 3. Quantities of most substances necessary to trigger a possible forfeiture case will be doubled. An example being the quantity of marijuana will increase from five pounds to ten pounds. 4. Certain vehicles will no longer be forfeitable. 5. Licensed businesses will no longer be forfeitable 6. Real property can only be taken if a person is convicted of certain violations. 7. Most forfeitures will only be allowed after a conviction has been obtained. 8. The prosecution will now have to prove "beyond a reasonable doubt" that a forfeitable violation occurred. The existing law allows forfeiture using proof bearing a "preponderance of evidence." The difference is a "preponderance of evidence" is roughly equal to proof of fifty percent plus one that a defendant may have committed the alleged violation. "Beyond a reasonable doubt" is roughly equal to one hundred percent proof that a defendant committed the alleged violation. The difference is huge and it will stop much of the abuse of these laws by law enforcement who may be to anxious to get their hands on your money. 9. In cases involving cash or other negotiable instruments valued at more than $25,000, the prosecution can forfeit with "clear and convincing evidence." This type of evidence is somewhere between a "preponderance of evidence" and "beyond a reasonable doubt." 10. Landlords will have greater protection from losing property rented to people accused of forfeitable crimes. 11. If forfeiture is attempted, it must be tried by the same jury or court who tries the criminal offense which led to the forfeiture action. 12. The distribution of assets after forfeiture will be changed. The lead agency(s) share will be cut from eighty-five percent to sixty-five percent of the proceeds. The prosecuting agency's dividend (DA) will be cut from fifteen percent to ten percent of the proceeds. Twenty percent will now go into the General Fund and five percent will be disbursed to certain eligible nonprofit organizations. None of this means that we are out of the woods on asset forfeiture. It will still be legal, but substantial evidence will be required for a prosecutor to prove his/her case. There are numerous safeguards reestablished for innocent victims of forfeiture laws. And, of primary concern, there still exists Federal forfeiture laws which local law enforcement may use in lieu of State laws. Fortunately, there is currently much discussion going on in Washington on the subject and I have a hunch that the legislators in Washington don't like seizure and forfeiture any better than their counterparts in Sacramento. As reported in the Gazette last month, Congressman John Doolittle recently jumped on the anti-forfeiture bandwagon and I am happy to have played a part in his decision to do so. The failure of law enforcement to force the legislature into adopting new and more repressive forfeiture laws bodes well upon the future of this state. Somehow we have quietly become a police state, but cooler heads may soon prevail. In every other country where a police stale came into power, it happened because of a revolution or a coup, but here we did it simply by passing repressive laws. Hopefully we are witnessing the tip of the iceberg in judicial reform which will lead us away from the police state attitude which now prevails.