BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 443|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
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THIRD READING
Bill No: SB 443
Author: Mitchell (D)
Amended: 6/2/15
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 5-2, 4/21/15
AYES: Hancock, Leno, Liu, McGuire, Monning
NOES: Anderson, Stone
SENATE APPROPRIATIONS COMMITTEE: 5-1, 5/28/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Nielsen
SUBJECT: Forfeiture: controlled substances
SOURCE: ACLU
Drug Policy Alliance
Institute for Justice
DIGEST: This bill: 1) requires a criminal conviction for
forfeiture of alleged cash drug proceeds and assets in excess of
$25,000; 2) reduces the percentage of forfeiture proceeds
distributed to prosecutors, law enforcement and the General
Fund; 3) distributes 5% of forfeiture proceeds to each of the
courts and public defense; 4) requires that California standards
be met before federal forfeiture proceeds can be distributed to
a state of local law enforcement agency through equitable
sharing; 5) grants a right to counsel for indigent defendants in
civil drug forfeiture matters; 6) authorizes attorneys' fees and
costs for prevailing defendants in forfeiture cases; 7)
prohibits adoption by federal authorities of a state forfeiture
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matter; and 8) requires the California Department of Justice's
annual asset forfeiture report to include data on forfeitures
initiated under California law, federal adoptions, forfeiture
case that were prosecuted under federal law, the number of
suspects charged with drug crimes, the number of criminal
charges brought under each of state and federal law and the
disposition of these cases.
ANALYSIS:
Existing law:
1)Establishes an asset-forfeiture procedure for drug-related
cases. (Health & Saf. Code §§ 11469-11495.)
2)Provides that the principal objective of forfeiture is law
enforcement and that forfeiture shall be conducted with due
process. (Health & Saf. Code § 11469, subd. (a).)
3)Sets out detailed procedures for a drug forfeiture action,
including: the filing of a petition for forfeiture within one
year of seizure, notice of seizure, publication of notice, the
right to a jury trial, and a motion for return of property.
(Health & Saf. Code § 11488.4.)
4)Requires a conviction in an underlying criminal case and
provides that the burden of proof in the (civil) judicial
forfeiture action shall be beyond a reasonable doubt. (Health
& Saf. Code § 11488.4, subd. (i)(3).)
5)Does not require a conviction on an underlying drug offense
where the property sought to be forfeited is cash or
negotiable securities over $25,000, and allows forfeiture upon
a burden of proof of "clear and convincing evidence" under
these circumstances. (Health & Saf. Code § 11488.4, subd.
(i)(4).)
6)Allows for administrative (nonjudicial) forfeiture for cases
involving personal property worth $25,000 or less. A full
hearing is required if a claim as to the property is filed, as
specified. (Health & Saf. Code § 11488.4, subd. (j).)
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7)Provides a scheme for the distribution of fund from
forfeitures and seizures. Specifically, after distribution to
any bona fide innocent owners and reimbursement of expenses,
65% of proceeds go to participating law enforcement agencies,
10% to the prosecutorial agency, and 24% to the General Fund.
(Health & Saf. Code § 11489.)
8)Requires the Department of Justice (DOJ) to publish an annual
report detailing specified information on forfeiture actions.
(Health & Saf. Code § 11495, subd. (c).)
This bill:
1) Requires a conviction for cultivation or manufacture of a
controlled substance before judgment of forfeiture is
entered.
2) Provides that a conviction is required before judgment is
entered in a forfeiture matter involving cash or negotiable
instruments of a value in of at least $25,000.
3) Provides that the prosecutor shall prove beyond a reasonable
doubt that cash or negotiable instruments with a value of at
least $25,000 meet the requirement for forfeiture.
4) Provides that if a defendant in the criminal case associated
with the forfeiture action is represented by appointed
counsel, counsel shall be appointed in the forfeiture action.
5) Provides that a defendant who prevails in a forfeiture
action shall be entitled to litigation costs and attorneys'
fees.
6) Prohibits a state or local law enforcement agency from
transferring property seized under state law for adoption by
a federal agency.
7) Provides that any forfeited property received by state or
local law enforcement agencies pursuant to federal equitable
sharing or adoption laws and rules shall be deposited and
distributed according to state law.
8) Provides that a conviction is required before forfeiture can
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be ordered if the defendant fails to appear in the underlying
criminal action.
9) Provides that 54% of forfeiture proceeds shall be
distributed to each state or local agency that participated
in a forfeiture action, in proportion to the contribution of
the agency.
10)Provides that 5% of forfeiture proceeds shall be distributed
to the prosecuting agency that processed the forfeiture.
11)Provides that 10% of forfeiture proceeds shall be disbursed
to the court where the forfeiture action occurred. These
funds shall be deposited to the newly created "Judicial Asset
Forfeiture Fund in the State Treasury and, upon legislative
appropriation, expended for court administration in the
county of forfeiture.
12)Provides that 5% of forfeiture proceeds shall be disbursed
to the public defender's office or provider of indigent
defense services in the jurisdiction of the forfeiture
action.
13)Provides that 1% of forfeiture funds shall be provided to
public defender agencies for training about forfeiture law
and procedures.
14)Requires the Attorney General to annually report on the
following additional matters:
a) The number of forfeiture cases initiated under state
law;
b) The number of cases adopted by the federal government;
c) The number of cases initiated in joint federal-state
actions that were prosecuted under federal law;
d) The number of suspects charged with a controlled
substance violation; and
e) The disposition of cases.
Background
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Federal forfeiture law is less burdensome for law enforcement
and gives law enforcement more benefits than state law.
Specifically:
1)Conviction:
California: Conviction generally required, except where
the property seized was cash in excess of $25,000. (Health
& Saf. Code §11488.4, subd. (i)(3).)
Federal: No conviction required. (18 U.S.C. § 981.)
1)Burden of proof:
California: Beyond a reasonable doubt for most cases.
The burden is clear and convincing evidence (with no
underlying conviction) in cases involving at least $25,000
in cash. (Health & Saf. Code §11488.4, subd. (i)(4).)
Federal: Preponderance of the evidence. (18 U.S.C. §
983 (c)(1).)
1)Administrative forfeiture (limited or no court hearings):
California: Only available for cases involving personal
property worth $25,000 or less. (Health & Saf. Code
§11488.4, subd. (i)(4).)
Federal: Available for any amount of currency and
personal property valued at $500,000 or less, including
cars, guns, and boats. (19 U.S.C. § 1607 (a).)
1)Use of forfeited assets:
California: No direct use of seized assets, such as
vehicles or planes. (Health & Saf. Code § 11489.)
Federal: Seizing agency can use the asset or transfer it
to a state or local agency that participated in the
proceedings. (18 U.S.C. § 881 (e)(1)(A).)
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1)Disbursement of Forfeited Assets:
California: 65% to law enforcement agency, 10% to
prosecuting agency, 24% to general fund, 1% to law
enforcement training. (Health & Saf. Code § 11489, subd.
(b).)
Federal: 80% (maximum) of seized proceeds to the agency
or agencies involved in the seizure of the assets. (21
U.S.C. § 881 (e); U.S. DOJ, Guide to Equitable Sharing, p.
12.)
1)Exemptions for Family Property, other Limitations:
California: No forfeiture of family residence partly
owned by innocent party and no forfeiture of vehicle
necessary for family transportation. (Health & Saf. Code
§11470, subds. (e) and (g).
Federal: No family exemption.
California: If property subject to seizure is a boat,
vehicle or other conveyance, the drugs associated with the
vehicle must be of a specified weight or volume. (Health &
Saf. Code §1147, subd. (e).
Federal law: No weight or volume limits apply under
federal law. (21 U.S.C. § 881 (a)(4).)
Because there is overlapping jurisdiction in drug-related
crimes, California law enforcement agencies can avoid relatively
stringent state forfeiture laws by participating in joint
federal-state investigations or by transferring assets seized
pursuant to state law to federal authorities. This entire
process is referred to as "equitable sharing." Equitable
sharing includes "adoption," through which the U.S. Attorney
essentially processes a state forfeiture under federal law.
To participate in equitable sharing, a California law
enforcement agency must execute an agreement with the United
States Department of Justice (US DOJ). US DOJ has promulgated
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guidelines for forfeiture adoption, including that the district
attorney must consent to the transfer. Procedurally, the local
or state agency files a request to federal authorities to adopt
a state seizure. Minimum value amounts apply and vary by
federal court district. The amount of money and property
disbursed to local or state law enforcement is based on "the
degree of direct law enforcement effort" by the state or local
agency. (21 U.S.C. §881 (e)(3).) State and local and agencies
can receive up to 80% of the proceeds of an adopted forfeiture
case.
United States Attorney General Holder has recently issued an
order that prohibits adoption of local and state forfeitures,
except in a case where US DOJ specifically approves the
adoption. The order is administration policy and does not have
the force of law. Because adoption cases involve a small
percentage of equitable sharing, the new policy will have
limited effects. Adoptions account for about 3% of forfeiture
deposits. Total equitable sharing amounts to about 22% of
forfeiture deposits. Thus, approximately 85% of the proceeds of
federal forfeiture that goes to state and local agencies is
unaffected by the new policy. California agencies may seek to
make more seizures under the umbrella of joint federal-state
task forces so that equitable sharing rule, not state law,
applies. Given the much stricter standards for California
forfeiture, state and local agencies may have substantial
incentives to avoid California law and work with federal
agencies instead.
The use of federal asset forfeiture - through adoption and
equitable sharing - has increased substantially over the past 15
years, as shown by the following table:
-----------------------------------------------------------
|FEDERAL FORFEITURE DISBURSED | STATE FORFEITURE |
| | DISBURSED |
|-----------------------------+-----------------------------|
|2014 - $77 million |Data unavailable |
|-----------------------------+-----------------------------|
|2013 - $86 |2013 - $28 million |
|-----------------------------+-----------------------------|
|2012 - $83 |2012 - $15 |
|-----------------------------+-----------------------------|
|2011 - $79 |2011 - $18 |
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|-----------------------------+-----------------------------|
|2010 - $76 |2010 - $16 |
|-----------------------------+-----------------------------|
|2009 - $60 |2009 - $38.8 |
|-----------------------------+-----------------------------|
|2008 - $52.4 |2008 - $25.5 |
|-----------------------------+-----------------------------|
|2007 - $ 42.8 |2007 - $27.6 |
|-----------------------------+-----------------------------|
|2006 - $42.3 |2006 - $25.6 |
|-----------------------------+-----------------------------|
|2005 - $26.7 |2005 - $19.9 |
|-----------------------------+-----------------------------|
|2004 - $31.3 |2004 - $22.5 |
|-----------------------------+-----------------------------|
|2003 - $24.5 |2003 - $26.6 |
|-----------------------------+-----------------------------|
|2002 - $24 |2002 - $25.6 |
|-----------------------------+-----------------------------|
|2001 - $32.8 |2001 - $25.7 |
|-----------------------------+-----------------------------|
|2000 - $30 |2000 - |
| |$21 |
| | |
-----------------------------------------------------------
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
Potentially major revenue losses in the millions of dollars
(local) annually to local law enforcement and prosecutorial
agencies due to the restricted use of federal asset
forfeiture and the reduced distribution percentages applied
to both state and federal asset forfeiture proceeds.
Potentially significant annual revenue losses (General
Fund) to state agencies, including the DOJ and the
California Highway Patrol, due to the restricted use of
federal forfeiture and the reduced distribution percentages
applied to both state and federal forfeiture proceeds.
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Potentially significant net General Fund revenue gains to
the extent a greater number of asset forfeitures are
executed prospectively under state versus federal law and/or
to the extent asset forfeiture proceeds authorized under
federal law are distributed according to state law.
Potentially significant increase in trial court workload
and costs for court-appointed counsel offset in part by the
specified 10 percent distribution of forfeiture proceeds to
the court in the jurisdiction where the proceedings are
initiated.
Minor ongoing costs to the DOJ to include additional data
elements in its annual report.
SUPPORT: (Verified 6/1/15)
ACLU (co-source)
Drug Policy Alliance (co-source)
Institute for Justice (co-source)
OPPOSITION: (Verified 6/1/15)
California District Attorneys Association
Prepared by:Jerome McGuire / PUB. S. /
6/2/15 22:31:43
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