BILL ANALYSIS Ó
SB 443
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Date of Hearing: August 19, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
SB 443
(Mitchell) - As Amended July 16, 2015
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Urgency: No State Mandated Local Program: YesReimbursable:
Yes
SUMMARY:
This bill requires additional due process protection in cases
where the State of California seeks to forfeit assets in
connection with specified drug offenses and changes the process
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concerning how money or property forfeited under federal
forfeiture law is distributed to state or local law enforcement.
Specifically, this bill:
1)Requires additional due process protection in cases where the
State of California seeks to forfeit assets in connection with
specified drug offenses, such as:
a) Prohibiting the transfer of property seized under state
law to a federal agency.
b) Requiring a conviction in the underlying criminal case
before assets can be seized.
c) Requiring representation by court appointed counsel in
an asset forfeiture proceeding if a court appointed counsel
was provided in the underlying criminal case.
d) Requiring claimants to be reimbursed for attorneys' fee
if the claimant substantially prevails in a forfeiture
proceeding.
1)Creates the State Asset Forfeiture Fund for Law Enforcement
Purposes (SAFFFLEP ) where money or property received by state
or local law enforcement based on any federal law that
authorizes sharing of forfeited property will be deposited.
Upon appropriation by the Legislature, requires that the money
in the SAFFFLEP be distributed based on population.
2)Requires all property, moneys (under $25,000) and things of
value seized and not claimed to be distributed as follows:
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a) To the state agency or local government for costs
incurred by it in connection with the sale of the property,
including expenditures for any necessary costs for public
notice, hearings, or for any necessary repairs, storage, or
transportation of any property lawfully forfeited;
b) The remaining funds are to be distributed as follows:
i) Twenty-four percent (24%) to the General Fund; and,
ii) Seventy-six percent (76%) to the State Asset
Forfeiture Fund for Courts and Criminal Justice Purposes
to be made available, upon appropriation by the
Legislature, for purposes of criminal and civil court
functions, prosecution, public defense and indigent
defense, law enforcement, crime prevention including
afterschool programs for adolescents and drug treatment
for adolescents and adults, and victim services.
FISCAL EFFECT:
1)An unquantifiable revenue loss, in the millions, to state and
local agencies by:
a) 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.
b) Prohibiting the transfer of property to federal
agencies; thus preventing local and state agencies from
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receiving equitable share of seized property
c) Reducing from 65% to 40% the share of seized assets
that are distributed to state and local entities based on
their proportionate contribution to the case and
eliminating the 10% allocation to the prosecutorial agency
which process the forfeiture action. This loss is
somewhat mitigated by providing 34% share to the newly
created SAFFFLEP - a fund for specific activities, such as
criminal and civil court functions, prosecution, public
defense, law enforcement, crime prevention, etc.
2)Federal law does not allow for the transfer of asset
forfeiture revenue to the General Fund, and it appears that
the proposed per capita distribution of the SAFFFLEP is
inconsistent with federal law. This provision may jeopardize
California's ability to participate in the federal "equitable
sharing" program.
3)A redistribution of reduced asset forfeiture revenue by
distributing a specific asset forfeiture revenue based on
population, instead of the law enforcement's agency's
contribution to the case.
4)Increased reimbursable mandated costs in the hundreds of
thousands of dollars (GF) to local public defenders' offices
to provide legal representation in civil proceedings related
to forfeitures.
5)Increased costs to state and local prosecuting agencies for
attorneys' fees where the claimant substantially prevails in a
forfeiture proceeding.
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COMMENTS:
1)Purpose. According to the author, "SB 443 will reign in
abuses surrounding the practice of 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."
The intent of this bill is to remove the financial incentive
for California law enforcement agencies to transfer seized
assets to federal agencies, and to participate in criminal
cases where there is "financial reward" for participation. SB
443 will eliminate the current fiscal incentives offered by
the federal government that rewards California law enforcement
agencies for steering cases into the federal process.
2)Background. Compared to California law, Federal law gives law
enforcement more power and puts fewer burdens on the
government before property is forfeited. While state law
limits cases involving personal property worth $25,000 or
less, under federal law administrative forfeiture is available
for any amount of currency and personal property valued at
$500,000 or less, including cars, guns, and boats.
Under federal law, 20% of revenue from forfeited assets is
retained by the federal agency involved, and 80% is allocated
to the local agencies involved in the seizure in proportion to
their involvement in the case. Under state law, 24% of
revenue from forfeited assets is deposited in the General
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Fund, after specified expenses are covered, and the remaining
76% is allocated as specified.
3)Argument in Support: According to Drug Policy Alliance, "From
2002 to 2013, the vast majority of assets seized by law
enforcement agencies in California were steered into the
federal courts. From 2002 to 2013, the annual revenue from
asset forfeiture to law enforcement coffers in California
pursuant to state actions, state laws and through state
courts, remained stable at approximately $18.3 million
dollars. However, assets seized from California residents and
revenue provided to California law enforcement agencies
through federal courts and pursuant to federal laws more than
tripled from 2002 to over $100 million dollars per year in
2012 and 2013. SB 43 by Senator Mitchell will create
conditions whereby most cases will remain in our state courts
and be prosecuted according to the laws of California, which
have superior due process standards and property rights
protections, including protection of guiltless spouses and
family members. And importantly, Senator Mitchell's bill
provides that in state law, there will be no permanent loss of
property or cash without a conviction for the underlying
criminal case."
4)Argument in Opposition: According to the Los Angeles County
District Attorney's Office, Current law does not require a
criminal conviction for drug asset forfeiture where the
property to be forfeited is cash or a negotiable instrument
worth $25,000 or more. SB 443 would require a criminal
conviction in these cases. This is problematic as many
criminals fail to file a claim for large amounts of drug money
in order to avoid criminal prosecution. In these cases, it is
fairly clear that the seized asset is drug money but asset
forfeiture would no longer be available in cases where the
defendant cannot be prosecuted (possibly because he or she has
fled the jurisdiction or witnesses are unavailable to
testify)."
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"SB 443 reduces the amount of forfeited assets that may be
distributed to law enforcement and prosecutors, thus hurting
our ability to fund future anti-drug efforts. Loss of these
funds could make it difficult to investigate and prosecute
major illicit drug operations in California."
"SB 443 provides for payment of attorney fees to the
prevailing party in asset forfeiture cases. However, there is
no source of revenue identified to pay these fees. This could
result
in a drain upon county general funds or, alternatively, result
in a reluctance to pursue valid cases, due to the risk to the
county budget."
Analysis Prepared by:Pedro R. Reyes / APPR. / (916)
319-2081