Bipartisan Asset Forfeiture Reform Bill Dies on California Assembly Floor

Drug Policy, Press Release, September 10, 2015

Law Enforcement Lobby Deploys Heavy-Handed Scare Tactics

Senator Mitchell’s Bill, SB 443, Would Have Required Conviction Before Forfeiture

SACRAMENTO, CA — Civil asset forfeiture reform legislation authored by Senator Holly Mitchell (D-Los Angeles) and David Hadley (R-Torrance) failed to pass the Assembly Floor today after extraordinary efforts by law enforcement to defeat it, including personal calls to legislators’ cell phones and other scare tactics. Despite bipartisan support and nearly unanimous votes at every previous juncture, SB 443 could not survive the Assembly Floor vote today. However, the bill was granted reconsideration, meaning it can be taken up for another floor vote tomorrow, the final day of session, if the authors so choose.

SB 443, which was co-sponsored by the Drug Policy Alliance, ACLU and the Institute for Justice would have required a conviction in either state or federal court before property could be permanently forfeited to local law enforcement coffers.

“We are deeply disappointed, but not surprised, by the lack of courage shown by members of the Assembly today,” said Lynne Lyman, California state director of the Drug Policy Alliance. “Apparently many of our elected representatives do not want to uphold the due process protections guaranteed to us in the constitution.  Instead, they voted to continue allowing local law enforcement to circumvent the heightened protections of state law in favor of a corrupt arrangement with the federal government.”

Civil asset forfeiture law allows the government to seize and keep cash, cars, real estate, and any other property – even from persons never charged with or convicted of a crime. California law generally requires a conviction before property is permanently forfeited to the government, and protects guiltless spouses, in a way that federal law does not.  In the last 20 years since California implemented these protections, some law enforcement agencies chose to exploit a loophole in the law that allows them to transfer cash and property to the federal government, which shares the proceeds from the forfeiture with the local agency, even when there was no arrest, charge or conviction.

An August ACLU poll found that 76% of California likely voters think police should NOT be allowed to seize and permanently take away property from people who have not been convicted of a crime. According to the polling firm Tulchin Research, “Voters among all ethnicities in California including nearly nine-in-ten African American voters (89 percent), over three quarters of white voters (76 percent), and more than seven in ten Asian (73 percent) and Latino voters (72 percent) oppose seizing and permanently taking away the assets of those not convicted of a crime by law enforcement. Opposition to this practice was also consistent across party lines at 75%.

While civil asset forfeiture was originally conceived in the 1980s as a way to target and drain resources away from powerful criminal organizations, it has primarily become a method for law enforcement to confiscate the savings and property of those not even charged with any criminal wrongdoing. Recent examples include the case of Tony and Morgan Jalali, who had to go through lengthy court proceedings to regain their $1.5 million commercial property in Anaheim that was seized on the basis of a $37 marijuana sale at a medical marijuana dispensary operating within state law.

There is an emerging bipartisan national consensus that asset forfeiture requires substantial reform. Reform efforts are underway in states like Michigan, Ohio, Pennsylvania, Montana, and New Mexico. Groups that support reform come from across the political spectrum, ranging from the Center for American Progress and The Leadership Council Education Fund to Americans for Tax Reform and FreedomWorks.

In Congress, legislation known as the Fifth Amendment Integrity Restoration (FAIR) Act has been introduced in both houses. This would dramatically reform federal civil asset forfeiture laws, including the abolition of the Department of Justice’s Asset Forfeiture Fund. Among the California members of Congress who have co-sponsored a version of the FAIR Act: Representatives Tony Cardenas (D-San Fernando Valley), Sam Farr (D-Carmel), Tom McClintock (R-Roseville), and Dana Rohrabacher (R-Costa Mesa). Rep. Cardenas issued a statement last year noting that “satisfying a profit motive must never be the reason for law enforcement.”

In April, the Drug Policy Alliance released “Above the Law: An Investigation of Civil Asset Forfeiture Abuses in California,” a multi-year, comprehensive look at asset forfeiture abuses in California that reveals the troubling extent to which law enforcement agencies have violated state and federal law, with many of the worst violators clustered in the Los Angeles County region.