BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 443|
|Office of Senate Floor Analyses | |
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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
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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.)
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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.
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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
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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;
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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."
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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.)
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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/.)
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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.
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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
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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,
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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
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