BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 443| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- UNFINISHED BUSINESS Bill No: SB 443 Author: Mitchell (D), et al. Amended: 8/4/16 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 NO VOTE RECORDED: Bates SENATE FLOOR: 38-1, 6/3/15 AYES: Allen, Anderson, Bates, Beall, Berryhill, Block, Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Pan, Pavley, Roth, Runner, Stone, Vidak, Wieckowski, Wolk NOES: Leyva NO VOTE RECORDED: Nielsen ASSEMBLY FLOOR: 24-44, 9/10/15 - See last page for vote (FAIL) ASSEMBLY FLOOR: 69-7, 8/15/16 - See last page for vote SUBJECT: Forfeiture: assets: controlled substances SOURCE: American Civil Liberties Union Coalition for Humane Immigrant Rights of Los Angeles Drug Policy Alliance Ella Baker Center for Human Rights SB 443 Page 2 Institute for Justice DIGEST: This bill requires a conviction before California law enforcement agencies can share in the proceeds of drug asset forfeiture in joint federal-state task force cases; except for seizures of cash in excess of $40,000; prohibits "adoption" by federal authorities of California law enforcement drug asset seizures; and requires additional data in the California Department of Justice report on California drug asset forfeiture. Assembly Amendments allow California law enforcement to receive "equitable sharing" of federal asset forfeiture of the proceeds of cash in excess of $40,000 without the need for a conviction and eliminate the requirement in the bill that equitable sharing proceeds of California law enforcement shall be distributed pursuant to California law. 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.) SB 443 Page 3 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).) 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) 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. SB 443 Page 4 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) Clarifies that this bill does not prohibit state or local law enforcement from participating in joint law enforcement operation with federal agencies. 5) 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. Specifies an exception to the conviction requirement if the value of the assets is greater than $40,000. 6) States that if a defendant, charged with a specified criminal offense arising from a state or local joint law enforcement operation with federal agency, willfully fails to appear in court, or is deceased, there shall be no requirement of a criminal conviction in order for state or local law enforcement to receive an equitable share of any federal forfeiture proceeding. 7) 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 SB 443 Page 5 defendant in the related criminal case willfully fails to appear for court, or if the value of the assets is in excess of $40,000, as specified. 8) Requires proof beyond a reasonable doubt in all forfeiture cases which are contested, except cash or negotiable instruments of $40,000 or more for which the standard is proof by clear and convincing evidence. 9) Allows forfeiture of property less than $25,000 if notice of the forfeiture has been provided, as specified, and no claims have been made. 10)Allows more time to make a claim contesting forfeiture. 11)Allows property of $40,000 or more to be forfeited through a judicial process when no claim to the forfeited property has been made within the specified time. 12)Requires, each year, the Attorney General to 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; SB 443 Page 6 c) The number of suspects charged with a controlled substance violation; d) The number of alleged criminal offenses that were under 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. 13)Requires the Legislative Analyst's Office to provide a report to the Legislature by December 31, 2020, about the economic impact on state and local law enforcement budgets because of changes to the forfeiture process proposed by this bill. Background According to the author, "SB 443 will reign in abuses surrounding the practice to civil asset forfeiture, and 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." SB 443 Page 7 Federal forfeiture law is less burdensome for law enforcement and gives law enforcement more benefits than state law. For example: 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.) 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).) 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).) 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).) 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.) SB 443 Page 8 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 must be of a specified weight or volume. (Health & Saf. Code §1147, subd. (e). Federal law: No weight or volume limits. (21 U.S.C. § 881 (a)(4).) 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," which includes "adoption," through which a U.S. Attorney processes a state forfeiture under federal law. To participate in equitable sharing, a California law enforcement agency must execute an agreement with U.S. DOJ and follow guidelines, including that the district attorney must consent to the transfer. Minimum value amounts vary by 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 each agency. (21 U.S.C. §881 (e)(3).) State and local and agencies can receive up to 80% of an adopted forfeiture. On January 16, 2015, former United States Attorney General Holder issued an order that was widely described as effectively ending equitable sharing of federal forfeiture proceeds. However, the order did not limit equitable sharing in joint federal-state investigations. The policy prohibits wholesale "adoption" of what would otherwise solely be a state or local seizure. Adoptions account for about 3% of forfeitures. Total equitable sharing amounts to about 22% of forfeitures. (http://www.washingtonpost.com/news/the-watch/wp/2015/01/20/how-m uch-civil-asset-forfeiture-will-holders-new-policy-actually-preve nt/.) SB 443 Page 9 FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No 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. SUPPORT: (Verified8/15/16) American Civil Liberties Union (co-source) Coalition for Humane Immigrant Rights of Los Angeles (co- source) Drug Policy Alliance (co- source) Ella Baker Center for Human Rights (co- source) Institute for Justice (co- source) A New PATH ACT for Women and Girls Alpha Project Americans for Safe Access Americans for Tax Reform Amity Foundation Asian American Drug Abuse Program Asian Americans Advancing Justice Broken No More California Association for Micro Enterprise Opportunity California Association of Alcohol and Drug Program Executives, Inc. SB 443 Page 10 California Association of Black Lawyers California Partnership California Prison Focus California Public Defenders Association California State Conference of the NAACP Californians United for a Responsible Budget Center for Living and Learning Consumer Federation of California Courage Campaign Dignity and Power Now Electronic Frontier Foundation FACTS Education Fund Firearm Policy Coalition Former Senator John Burton Friends Committee on Legislation California Further the Work Howard Jarvis Taxpayers Association Immigrant Legal Resource Center Inland Empire Immigrant Youth Coalition Justice Fellowship Justice Not Jails Law Enforcement against Prohibition Lawyers Committee for Civil Rights Legal Services for Prisoners with Children Los Angeles Regional Reentry Partnership National Federation of Independent Business National Organization for the Reform of Marijuana Laws Partnership for the Advancement of New Americans San Diego County Apartment Association San Diego Criminal Defense Bar San Diego La Raza Lawyers Association San Diego LGBT Center San Diego Organizing Project Service Employees International Union Tarzana Treatment Centers, Inc. United Farm Workers Veterans Democratic Club of San Diego County Western Center on Law and Poverty Westward Liberty William C. Velásquez Institute SB 443 Page 11 OPPOSITION: (Verified8/15/16) Association of Deputy District Attorneys Association for Los Angeles Deputy Sheriffs California Association of Code Enforcement Officers California College and University Police Chiefs Association California Narcotic Officers Association Los Angeles County Professional Peace Officers Association Los Angeles Police Protective League Riverside Sheriffs' Association ASSEMBLY FLOOR: 24-44, 9/10/15 (FAIL) AYES: Bloom, Bonta, Brough, Burke, Chiu, Dababneh, Cristina Garcia, Gordon, Hadley, Harper, Holden, Jones-Sawyer, Levine, Lopez, Maienschein, McCarty, Quirk, Rendon, Santiago, Mark Stone, Thurmond, Ting, Weber, Atkins NOES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Calderon, Chang, Chávez, Chu, Cooley, Cooper, Dahle, Daly, Dodd, Frazier, Beth Gaines, Gallagher, Eduardo Garcia, Gatto, Gray, Grove, Roger Hernández, Irwin, Jones, Kim, Lackey, Linder, Low, Mathis, Mayes, Medina, Melendez, O'Donnell, Olsen, Patterson, Perea, Rodriguez, Salas, Steinorth, Wagner, Waldron, Wilk, Williams, Wood NO VOTE RECORDED: Bonilla, Brown, Campos, Chau, Eggman, Gipson, Gomez, Gonzalez, Mullin, Nazarian, Obernolte, Ridley-Thomas ASSEMBLY FLOOR: 69-7, 8/15/16 AYES: Travis Allen, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Dababneh, Dahle, Daly, Dodd, Eggman, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Grove, Hadley, Harper, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, SB 443 Page 12 Wood, Rendon NOES: Achadjian, Arambula, Cooper, Frazier, Gray, O'Donnell, Williams NO VOTE RECORDED: Alejo, Beth Gaines, Roger Hernández, Olsen Prepared by:Jerome McGuire / PUB. S. / 8/19/16 19:54:00 **** END ****