BILL ANALYSIS Ó SB 443 Page 1 SENATE THIRD READING SB 443 (Mitchell) As Amended August 4, 2016 Majority vote SENATE VOTE: 38-1 -------------------------------------------------------------------- |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 | | | | | | | | | | | | -------------------------------------------------------------------- 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 SB 443 Page 2 conviction when property/money forfeited under federal law is distributed to state or local law enforcement, unless the value of the assets is greater than $40,000.00, as specified. 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)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. SB 443 Page 3 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 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)Each year, the Attorney General shall publish a report which SB 443 Page 4 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 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 SB 443 Page 5 changes to the forfeiture process proposed by this bill. 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. 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, SB 443 Page 6 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 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 Please see the policy committee analysis for a full discussion of this bill. Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0003771