BILL ANALYSIS Ó
SB 443
Page 1
SENATE THIRD READING
SB
443 (Mitchell)
As Amended September 4, 2015
Majority vote
SENATE VOTE: 38-1
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+-----------------------+---------------------|
|Public Safety |7-0 |Quirk, Melendez, | |
| | |Jones-Sawyer, Lackey, | |
| | |Lopez, Low, Santiago | |
| | | | |
|----------------+-----+-----------------------+---------------------|
|Appropriations |10-2 |Gomez, Bloom, Bonta, |Bigelow, Gallagher |
| | |Nazarian, Eggman, | |
| | |Holden, Quirk, Rendon, | |
| | |Weber, Wood | |
| | | | |
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SUMMARY: Requires additional due process protection in cases
where the State of California seeks to forfeit assets in
connection with specified drug offenses and requires a criminal
conviction when property/money forfeited under federal law is
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distributed to state or local law enforcement. Specifically,
this bill:
1)States that it shall be necessary to obtain a criminal
conviction for the unlawful manufacture or cultivation of any
controlled substance or its precursors in order to recover law
enforcement expenses related to the seizing or destroying of
illegal drugs.
2)Specifies that state and local law enforcement authorities
shall not refer, or otherwise transfer, property seized under
state law to a federal agency seeking the adoption of the
seized property.
3)Clarifies that this bill does not prohibit the federal
government from seeking forfeiture under federal law, or
sharing proceeds from federal forfeiture proceedings with
state and local law enforcement in those situations where
there are joint investigations.
4)Specifies that a state or local law enforcement agency may not
receive forfeited property or proceeds from property forfeited
pursuant to federal law unless a defendant is convicted in an
underlying or related criminal action of a specified offense,
or any offense under federal law that includes all of the
elements of one of the specified California offenses.
5)Requires a conviction on the related, specified criminal
charge to forfeit property in every case in which a claim is
filed to contest the forfeiture of property, unless the
defendant in the related criminal case willfully fails to
appear for court.
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6)Requires proof beyond a reasonable doubt in all forfeiture
cases which are contested.
7)Allows forfeiture of property less than $25,000 if notice of
the forfeiture has been provided, as specified, and no claims
have been made.
8)Allows more time to make a claim contesting forfeiture.
9)Allows property of $25,000 or more to be forfeited through a
judicial process when no claim to the forfeited property has
been made within the specified time.
10)Each year, the Attorney General shall publish a report which
sets forth the following information for the state, each
county, each city, and each city and county:
a) The number of forfeiture actions initiated and
administered by state or local agencies under California
law, the number of cases adopted by the federal government,
and the number of cases initiated by a joint federal-state
action that were prosecuted under federal law;
b) The number of cases and the administrative number or
court docket number of each case for which forfeiture was
ordered or declared;
c) The number of suspects charged with a controlled
substance violation;
d) The number of alleged criminal offenses that were under
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federal or state law;
e) The disposition of cases, including no charge, dropped
charges, acquittal, plea agreement, jury conviction, or
other;
f) The value of the assets forfeited; and
g) The recipients of the forfeited assets, the amounts
received, and the date of the disbursement.
EXISTING LAW:
1)Establishes an asset-forfeiture procedure for drug-related
cases.
2)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.
3)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 in cases
where the value of the forfeited property is under $25,000.
4)Specifies that forfeiture 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.
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5)Allows for administrative (non-judicial) 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.
6)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, 24% to the General Fund, and
1% to nonprofit group of prosecutors to provide forfeiture
education.
7)Requires the Department of Justice (DOJ) to publish an annual
report detailing specified information on forfeiture actions.
FISCAL EFFECT: According to the Assembly Appropriations
Committee, an unquantifiable revenue loss, in the millions, to
state and local agencies by:
1)Requiring a conviction of the underlying crime prior to asset
forfeiture, and prohibiting local agency participation in
federal asset distribution if there is no conviction.
2)Prohibiting the transfer of property to federal agencies; thus
preventing local and state agencies from receiving equitable
share of seized property
COMMENTS: According to the author, "SB 443 will reign in abuses
surrounding the practice to civil asset forfeiture, and
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reestablish the most basic tenets of Constitutional law and
values, requiring that in most cases, a defendant be convicted
of an underlying crime before cash or property can be
permanently seized. This bill will require that more drug asset
forfeiture cases be handled under state law, rather than
transferred to federal courts, and that seized assets are
dispersed to local law enforcement agencies, courts, defenders,
prosecutors and the General Fund, pursuant to state law."
Analysis Prepared by:
David Billingsley / PUB. S. / (916) 319-3744
FN: 0002153