By Jerry Kopel
It would have been fitting if the new anti-forfeiture law that goes into effect in Colorado July 1, became law on July 4 as a salute to restoring constitutional rights.
HB 1404 was sponsored by State Rep. Shawn Mitchell (R-Broomfield) and Sen. Bill Thiebaut (D-Pueblo). Seventy-three legislators voted for it, 24 voted against it, and three didn't vote.
Interest in changing the law goes back to the early 1990's when Scripps-Howard Newspapers, including the Rocky Mountain News, published a series of articles reporting on abuses of forfeiture laws across the nation, detailing, as the News reported "400 cases of innocent people forced to forfeit money or property to federal authorities."
Abuses began after the federal government amended a racketeering law in 1984, and states reduced the proof needed to prove a crime in order to seize assets as part of the war on drugs.
What began as a "tool" to reduce crime turned into an incentive for unbudgeted assets to be divvied up between law enforcement agencies. Instead of Mafia bosses in the back rooms of social clubs, we had district attorneys, chiefs of police and county sheriffs sitting around the table picking up cash, cars, and other assets without the need to prove beyond a reasonable doubt that a crime had been committed.
Scripps-Howard won a Pulitzer prize, and the News added its own series on abuses. One lead paragraph in the News: "Hundreds of thousands of dollars intended to aid crime victims are being spent by Denver police on everything from trips to Las Vegas to $700 chairs for the chief." These were dollars raised through forfeiture. A News editorial on federal and state abuses claimed "their practices are no better than legal extortion."
In 1991, Sen. Al Meiklejohn carried SB 102 reducing the proof needed for forfeiture seizure even further from preponderance of the evidence (tipping the scales of justice) to probable cause (grounds needed for a search warrant). "Probable cause" was the basis for Denver police to recently break into the wrong apartment, causing the death of a Mexican national, and the city of Denver payment of compensation to the victim's family.
Either through laziness or stupidity, the 1991 Senate voted 35 to 0 for SB 102. The House, urged on by myself (D-Denver) and Rep. Tim Foster (R-Grand Junction) killed the bill 44 to 19. Attempts from 1992 until 2002 to reform the forfeiture law were unsuccessful.
The 2002 forfeiture law amendments were strongly opposed by law enforcement lobbyists. But having seen how forfeiture was working, Colorado legislators were finally in no mood to back down.
Catalyst for success in 2002 goes first to Christie Donner of the Rocky Mountain Peace and Justice Center who drafted much of the original version of HB 1404, next to the the House and Senate chief sponsors, then to the lobbyist firm hired to persuade legislators to support it, and to many members of the public who recognized the possibility of victory.
In most cases, the new law requires conviction of a crime before property seized can be forfeited. There are exceptions, such as when the person charged has fled the jurisdiction or no one claims ownership or the defendant received a deferred sentence.
Law enforcement must prove by clear and convincing evidence (the highest standard of civil proof) that the owner was involved and that the property was used in the crime or were traceable proceeds, and the property forfeited was proportional to the crime committed.
A marijuana cigarette found on a yacht is no longer grounds for seizing the yacht. (That's not a made-up example. It actually happened in another state.)
Proceeds from property seized go first to pay off liens, innocent partial owners, and then victims of the crime. After payment of expenses, half the remaining proceeds go to state, county or city officials with budgetary control over law enforcement and used for "public safety purposes. The other half funds detoxification and substance abuse treatments. There are exceptions for federal funds provided to district attorneys and other law enforcement officials.
Extensive information regarding forfeiture assets and disbursements must be filed annually by law enforcement with the state as "open records". Under another statute not changed by HB 1404, failure to file can lead to elected officials being removed from office.
(Jerry Kopel served 22 years in the Colorado legislature.)
Copyright 2015 Jerry Kopel & David Kopel