Will state ban property seizure from people who aren’t criminals?

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Lucille Barrett
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 property seizure

In civil liberties circles, she is known by the pseudonym of Elizabeth James—a retired from the phone company who was contemplating a cross-country trip with her machinist husband. The two had worked for decades, raising two children and caring for her developmentally disabled sister, who lived in a home the couple had bought and remodeled in East Palo Alto, two blocks from their own bungalow. But their plans were upended when East Palo Alto police raided their sister’s home and arrested James’s son, who had been living in a back room, for drug-dealing.

Although Elizabeth James was never charged with a crime—she insisted she didn’t know what her son was up to— city police were working with federal authorities who evicted her disabled sister and seized the house under a process known as civil asset forfeiture.

Federal records show that in 2014, the last year reported, 220 California law enforcement agencies partnered up with federal prosecutors to instigate civil asset forfeiture, allowing them to seize and liquidate the assets of people who weren’t convicted or even charged with crimes.

Civil asset forfeiture’s putative goal is simple: to deny drug dealers working capital and divert the value of their assets to crime-fighting efforts. But a growing chorus of critics from both the left and right have condemned it as “policing for profit,” arguing that it strips citizens of their goods without due process.

After overcoming some in law enforcement objections, a bill to curtail the practice cleared the Legislature by a wide margin and is awaiting Gov. Jerry Brown’s signature.

“SB 443 isn’t the platinum reform standard for civil asset forfeiture, but it’s still an outstanding bill,” said Lee McGrath, the legislative counsel for the Institute for Justice, a Virginia-based libertarian public interest law firm. “More to the point, this is a California bill. When California does something, everybody in the nation pays attention.”

California state law already prevents civil asset forfeiture in most state cases—an exception being large cash bundles—unless the owner is convicted of a crime. But it allows state and local police to collaborate on drug cases with the federal government, which not only doesn’t require convictions for civil asset forfeiture but rewards the cooperating agencies with up to 80 percent of the value of the seized assets.

The result in California:

a relative leveling in the number of state civil asset forfeitures under state law over the past decade, but a big surge in the federal variety. A state Senate bill analysis indicates that the amount California agencies collected under the federal asset forfeiture program in 2014 was $77 million, marking a 133 percent increase over the amount collected just 10 years ago.

“Local and state agencies have been inappropriately incentivized to kick their cases to the federal courts, circumventing state law and undermining state authority,” McGrath said.

The bill’s biggest impact:

It would ban local and state police from reaping the gains of federal civil asset forfeiture unless the owner of the assets is convicted of a crime. It also would bolster existing protections under state law by raising the threshold for the forfeiture of cash absent a conviction from $25,000 to $40,000 and requiring a conviction before the government can claim property such as boats and cars.

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