Out of Control: Corporations, Governments Seize Private Property
Time to Reform Asset Forfeiture in Colorado
All too often, government employees run out of control and seize private property that is legitimately owned by other people.
The Independence Institute has released this statement concerning the asset seizure problem in Colorado, and how to bring government employees back under reasonable control.
by Ari Armstrong and Christie DonnerCatching salmon in Alaska is hard work. A Mexican citizen earned $15,000 working legally on a fishing boat in Alaska for the summer. On his way home he flew with the cash into Denver's airport, where he was confronted by the police. He proved he earned the money legitimately, so the district attorney let him continue home -— as long as he gave up $9,000 of his earnings.
A woman in Denver received around $15,000 from a personal injury lawsuit. She kept the money hidden in her car. She lent the car to her cousin, who was pulled over and caught with marijuana seeds. Even though neither was arrested or charged with a crime, the police kept $10,000 of her money.
Douglas Bruce, the famous tax reformer from Colorado Springs, used to own an apartment complex in Denver. After he evicted one resident, Bruce says cocaine was tossed into the yard of his maintenance employee. Denver threatened to confiscate the entire apartment complex unless Bruce evicted his employee. Bruce said he would evict the employee only if the man was convicted of a crime. Finally Bruce sold the property and the city backed off.
The Fifth Amendment of the Bill of Rights says no person can be "deprived of life, liberty, or property, without due process of law." Unfortunately, Colorado's asset forfeiture laws allow the police to take and use the property or its proceeds without even charging a person for a crime, let alone proving guilt. That makes the forfeiture laws capricious and unjust.
The good news is that Rep. Shawn Mitchell (R-Broomfield) and Sen. Bill Thiebaut (D-Pueblo) are sponsoring House Bill 1404 that would provide due process, eliminate the financial incentive for agencies to seize property, and require greater accountability of asset forfeiture for all Colorado agencies. The bill would make the following changes:
Law-and-order Republican Congressman Henry Hyde helped pass federal reforms a few years ago, and since then New Mexico, Utah, Oregon, and Nevada reformed their own laws.
- Require a criminal conviction before property can be forfeited (except in special cases, such as if the person jumped bail and fled).
- Protect innocent owners by raising the government's burden of proof before it can take property.
- Make sure the seized property was used in committing the crime or was the direct proceeds of a crime.
- Make sure the value of the property to be forfeited is proportional to the severity of the crime. The Denver police recently seized $18,000 from a man simply because he possessed a small amount of marijuana (a "petty offense" under Colorado law).
- Use forfeiture money to compensate victims and other innocent people with a legitimate ownership interest in the property. Then, 75% of the remaining funds would go for the state's drug treatment program.
- Make it harder for local agencies to turn over seizure cases to federal government attorneys. Local agencies sometimes use the loophole of federal "adoption" of local forfeitures in order to avoid complying with state forfeiture law.
- Tighten reporting requirements to ensure greater accountability.
In 1992, then-State Sen. Bill Owens co-sponsored asset forfeiture reform with Democratic Rep. Jerry Kopel. That bill didn't pass, but now Republican Mitchell and Democrat Thiebaut have forged a broad alliance for reform: Republicans, Democrats, Libertarians, Greens, gun owners, and leaders of the ACLU have all supported reform of forfeiture laws.
Basic fairness requires that if the government takes your property because you supposedly committed a crime, the government should have to prove, beyond a reasonable doubt, that you actually committed the crime. According to a recent Colorado poll, 83% of voters share this belief. Seventy-eight percent of voters also support using forfeiture proceeds to fund treatment for substance abuse -— as opposed to the current law, which allows 100% of forfeiture revenue to be kept by local agencies and literally used for pizza parties, trips to Las Vegas, and so on.
The value of the property being forfeited ought to be proportional to the crime. Forfeiting someone's $15,000 car because her teenage son got busted for possession of less than a gram of a drug isn't fair. The grotesquely excessive punishment doesn't fit the crime.
The main groups to oppose reform are the ones that profit from the current system: police agencies and prosecutors. They claim unlimited asset forfeiture is needed to fight crime because their budgets are dependent on forfeiture revenues. Whenever forfeiture reform is proposed, they offer hysterical warnings that law enforcement will be crippled. But law enforcement hasn't been crippled in Utah, Oregon, or anyplace else that has reformed forfeiture laws.
Indeed, it is law enforcement that stands to gain from the reforms. In our age of seemingly perpetual police scandals, a lot of people have lost faith in our police departments. Regulating forfeiture to ensure due process, fairness, and accountability will help restore some of that trust. By removing monetary incentives for police to take property from innocent people, the reforms will promote better priorities for police, so that protecting citizens always comes first.
Unfortunately, it doesn't appear that being accountable regarding forfeiture is something that law enforcement agencies take very seriously. Despite a law in effect since 1992 that requires all agencies that receive forfeiture proceeds to file a detailed annual report, only a handful have complied. Police must comply with the law themselves, not just enforce it against other people.
Police powers should never override basic Constitutional rights. Asset forfeiture reform will help officers and prosecutors keep their priorities straight, and it will protect the Bill of Rights and due process.
INDEPENDENCE INSTITUTE is a non-profit, non-partisan Colorado think tank. Its public policy research focuses on economic growth, education reform, local government effectiveness, and Constitutional rights.
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