What about the victims?
For the past 21 years, Colorado legislators have placed victims of crime at the bottom of those who benefit when law enforcement seizes alleged criminal assets.
This year, Rep. Shawn Mitchell (R-Broomfield) and Sen. Bill Thiebaut (D-Pueblo) introduced HB 1404 to amend Colorado's forfeiture laws. Most debate has been about whether to add criminal convictions before seized assets can be sold, and over the need to protect innocent property owners from losing assets. But the bill also gives priority to victims of crime. All these amendments were the same forfeiture reforms I attempted and lost as a legislator in 1992.
At the committee hearing ten years ago, attorney Doug George of Alamosa traveled to Denver to give testimony. His written information still sears my memory. Here is part of what Mr. George told us, using initials instead of names:
"In a case I was involved in... Mr. S, a widowed father of three children was accused of sexually abusing a child. When he was questioned about the accusation by the police, he immediately confessed to his wrongdoing, expressed his remorse, and plead "no contest" to the criminal charges.
"He was convicted and sentenced to community corrections by the court. Since the crime had taken place in the man's house, which was free and clear of all encumbrances, the District Attorney's office filed a forfeiture action to divest Mr. S of all ownership of the family home.
"If the forfeiture action had run its full course, the girl who was the victim of the crime, as well as her two brothers, would have been kicked out of the home with nowhere to go. This would have left the child-victim of the crime and her two older brothers, who were about seventeen or eighteen years old, completely homeless.
"Nevertheless, under the present statutory scheme the prosecution could have taken the home away from the family as a prize for the man's open confession. The man had been sentenced to community corrections, so any "nuisance" that the home presented had already been effectively abated. The only purpose to be served by the forfeiture was to obtain a free house for the D.A.'s office without regard to the harsh punishment that would be served upon the innocent victims.
"Even though the children of Mr. S were innocent victims of the crime and would lose their home as a result of the forfeiture statute, they could not claim the protection of an affirmative defense, since they were not owners of the property at the time the forfeiture action was filed.
"The children would then have not only been victims of a father's abuse, but they would have been subject to the abuse of the power of the current statutory scheme as well."
The end of the story? According to Mr. George, citizens of the community passed the hat and collected enough money to pay the D.A.'s office to release the forfeiture claim.
Had H.B. 1404 been the law when this crime was committed, it would have helped the children of Mr. S. It would have allowed the VICTIM of the crime to be compensated BEFORE state and law enforcement agencies could divvy up the money. The children, through appointment of a guardian, could have had the court transfer title of the home to them.
Presently, "any person who suffers bodily injury or property damage as a result of the action which constitutes the nuisance" is treated like a bird who has to wait until after the lions have gorged themselves on the gazelle.
It's time to allow victims of crime priority to gain restitution through forfeiture assets.
(Jerry Kopel served 22 years in the Colorado legislature.)
Copyright 2015 Jerry Kopel & David Kopel