BILL ANALYSIS �
AB 639
Page 1
Date of Hearing: April 26, 2011
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 639 (Norby) - As Amended: March 31, 2011
SUMMARY : Reforms drug asset forfeiture law to discourage
federal adoption of such cases. Specifically, this bill :
1)Provides that property is "seized" as soon as the agency takes
control or possession of it.
2)Prohibits state law enforcement, except by court order, from
turning over seized assets to the Federal Government, or
seizing them jointly with federal officers, thereby making
seized property subject to federal civil forfeiture law rather
than state law.
3)Prohibits the court from entering an order authorizing a
transfer to federal authorities unless:
a) It reasonably appears the criminal conduct is interstate
in nature and sufficiently complex to justify transfer;
b) The seized property is only subject to forfeiture under
federal law; or,
c) The pursuit of state forfeiture would unduly burden
state prosecutors or law enforcement.
4)Requires the court to provide the owner of property a right to
be heard before a case is transferred to federal authorities.
5)Provides that if assets are transferred in violation of these
provisions, the transferring agency shall be liable to the
state for a fine of up to 24% of the amount illegally
transferred.
6)Directs that money appropriated in the General Fund under
these provisions for school safety be used for drug prevention
and treatment services instead.
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7)Provides that the report to be generated by the Department of
Justice (DOJ) about forfeiture actions be published in book
form and also be made available to the public via electronic
reports.
8)Requires DOJ to include additional information in its annual
report, specifically:
a) A complete description by the recipients of forfeited
assets of the purposes for which all forfeited assets were
designated or used, and the dates of all disbursements for
each purpose.
b) The number of forfeiture actions initiated under federal
law in which a state or local agency had a role, and a
description of the role served in each federal forfeiture
action by each participating state or local agency,
including, but not be limited to, the following
information:
i) The seizure date; the date state or local
authorities transferred to federal authorities, if
applicable; and the date on which forfeiture was ordered
or declared.
ii) The case number assigned by federal authorities, if
known, or, if the case number is not known, other
identifying information about the case.
iii) Whether the state or local agency originated
information leading to a seizure or federal forfeiture
action.
iv) Whether the state or local agency supplied unique or
indispensable assistance to the federal forfeiture
action, and a description of the assistance.
v) The number of hours expended by the state or local
agency on the case.
vi) Whether a federal agency has classified the federal
forfeiture case as a "joint" seizure and forfeiture
action, or as an "adoption" by federal authorities of a
case initiated by a state or local agency, if that
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classification is known.
c) The value of assets forfeited under federal law in each
case in which a state or local agency had a role.
d) The value of all shares of assets forfeited under
federal law that are returned to a state or local agency
that had a role in the federal forfeiture action, and the
date of receipt of the shares.
e) A complete description by state and local agencies that
receive assets forfeited under federal law of the purposes
for which all the forfeited assets were designated or used,
and the dates of all disbursements for each purpose.
EXISTING LAW :
1)Establishes an asset-forfeiture procedure for drug-related
cases. �Health and Safety Code (HSC) Sections 11469 to
11495.]
2)Provides that the principal objective of forfeiture is law
enforcement and admonishes that any potential revenue to be
derived from forfeiture proceedings "must not be allowed to
jeopardize the effective investigation and prosecution of
criminal offenses . . . or the due process rights of
citizens." �HSC Section 11469(a).]
3)Allows for administrative (nonjudicial) forfeiture for cases
involving personal property worth $25,000 or less. Cases
involving real property or property worth more than $25,000
are subject to judicial forfeiture. �HSC Section 11488.4(j).]
4)Details procedural requirements in a state 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.
(HSC Section 11488.4.)
5)Requires the state to prove that the owner of the property for
which forfeiture is sought consented to its use with knowledge
that it would be or was used for a purpose for which
forfeiture is permitted. �HSC Section 11488.5(d)(1) and (2).]
6)Establishes the burden of proof in judicial forfeiture
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proceedings to be beyond a reasonable doubt, and requires a
conviction on an underlying drug offense. �HSC Section
11488.4(i)(3).]
7)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. �HSC Section 11488.4(i)(4).]
8)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.
(HSC Section 11489.)
9)Requires the DOJ to publish an annual report detailing
specified information on forfeiture actions. �HSC Section
11495(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 639 reduces
the financial incentives in asset forfeiture laws for local
law enforcement to recommend the prosecution of Californians
under federal law when state law can be used. The incentives
exist because federal programs return a greater percentage of
forfeited proceeds to the budgets of local law enforcement
than the State. In other words, Californians are facing
different types of enforcement actions because different
incentives in asset forfeiture programs established by the
state and federal governments encourage local law enforcement
to circumvent state law."
2)Differences in California and Federal Forfeiture Law :
Federal law gives law enforcement more power and less burden
than California law. Some ways in which California and
federal provisions differ are:
a) Administrative forfeiture: While state law limits cases
involving personal property worth $25,000 or less, under
federal law administrative forfeiture is available for any
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amount of currency and personal property valued at $500,000
or less, including cars, guns, and boats. �19 U.S.C.
Section 1607(a).]
b) Burden of proof: Under federal civil forfeiture law,
the government's burden of proof is "preponderance of the
evidence." �18 U.S.C. Section 983(c)(1).] This is a lower
standard than the "beyond a reasonable doubt" standard used
in California.
c) Conviction: In contrast to California law, federal
civil forfeiture law does not require a conviction. (18
U.S.C. Section 981.)
d) Use of forfeited assets: Under federal law, a seizing
agency can use the seized asset or transfer it to a state
or local agency that participated in the proceedings. �18
U.S.C. Section 881(e)(1)(A).] Direct use of the forfeited
asset is disallowed under state law.
3)Necessity for this Bill : Because there is overlapping
jurisdiction in drug-related crimes, state law enforcement
agencies can circumvent procedural hurdles or distribution
schemes under state law by attributing forfeiture activities
to local government or the Federal Government. This federal
loophole is referred to as "federal adoption" or "equitable
sharing."
Under the federal forfeiture statutes, the United States DOJ
can "adopt" local and state forfeitures and then distribute up
to 80% of the proceeds back to local and state agencies. �See
18 U.S.C. Section 881(e)(1)(A) and (e)(3)(A); see also United
States DOJ Guide to Equitable Sharing for State and Local Law
Enforcement Agencies, April 2009, p. 12:
.]
To date, the United States DOJ has shared over $4.5 billion in
forfeited assets with more than 8,000 state and local law
enforcement agencies. (Id. at Forward.)
Given the stricter standards in California law, state and
local agencies have an incentive to avoid California law and
work with federal agencies instead. This bill ensures the
"equitable sharing" process is not abused by requiring a court
order for the transfer of the case. This bill does allow the
court to authorize a transfer under certain circumstances,
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notably when the seized property can only be forfeited under
federal law.
4)Value of Forfeiture Proceeds :
a) Assets collected under state law: According to the 2009
Asset Forfeiture Report prepared by California DOJ, "�a]
total of 4,292 forfeiture proceedings were initiated in
2009 involving assets with a total estimated value of
$33,279,683. A total of 4,514 forfeiture cases were
completed during 2009 (includes cases initiated from 1995
through 2009). The total value of the disbursed assets is
$28,789,945." (, highlights p. 2.) This figure does not
include federal seizures and forfeitures in which
California law enforcement agencies participated or shared.
(Id. at p. 1.)
b) Assets collected under federal law: According to the
United States DOJ's Fiscal Year Asset Forfeiture Funds
Reports, California state and local agencies were the
recipients of $75,504,012 in asset forfeiture proceeds.
(.)
5)Reporting of Forfeitures by DOJ : State law already requires
the DOJ to prepare an annual report providing information on
all forfeitures of assets from illegal drug activities
initiated throughout California during the calendar year.
This bill requires the information be made available in
electronic format as well as in book form. The report is
already available in electronic format.
(.).
This bill also requires DOJ to report information pertaining to
forfeiture actions initiated under federal law in which a
state or local agency had a role. Federal seizures and
forfeitures in which California law enforcement agencies
participated or shared currently are not detailed in the
annual report. (See: Asset Forfeiture Annual Report 2009,
Introduction, p. 1.)
6)Distribution Changes : Under current law, 24% of forfeiture
proceeds are appropriated to the General Fund, and up to $10
million of that money is allocated for school safety and
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security. The bill requires that, beginning January 1, 2012,
all of forfeiture proceeds deposited in the General Fund be
allocated for drug prevention and treatment services.
7)Governor's Veto Message : In 2000, Governor Davis vetoed a
similar bill, SB 1866 (Vasconcellos), of the 1999-2000
Legislative Session, which would have prohibited the transfer
of a forfeiture case to the Federal Government without a court
order. The Governor stated:
"While I support the additional due process protections that
were added to California's asset forfeiture laws in 1994, I do
not believe that it is appropriate to require judges to
interfere with the ability of California law enforcement
officers' ability to make use of federal law provisions when
they deem that it is appropriate to do so. In other contexts,
we encourage state and local law enforcement to make use of
tougher federal law provisions. Additional due process
protections have recently been added to federal forfeiture
laws, and I do not believe that it is appropriate to take away
law enforcement's discretionary powers to make use of these
laws.
"Furthermore, I am vetoing this bill because it would restrict
the availability of revenues which would otherwise accrue to
the General Fund for a purpose that should be evaluated in
light of competing General Fund priorities."
8)Arguments in Support : According to the American Civil
Liberties Union , "State law enforcement officers often
transfer property subject to seizure to federal authorities to
avoid the due protections granted property owners under
California law. Law enforcement officials should not be
allowed to circumvent the laws enacted by this Legislature."
9)Prior Legislation : SB 1866 (Vasconcellos), of the 1999-2000
Legislative Session, would have required law enforcement
agencies to obtain a court order prior to transferring seized
assets to a federal agency for forfeiture. SB 1866 was
vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
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American Civil Liberties Union
Americans for Forfeiture Reform
California Alliance to Protect Private Property Rights
California National Organization for the Reform of Marijuana
Laws
Drug Policy Alliance
Forfeiture Endangers American Rights, Inc.
Institute for Justice
Law Enforcement Against Prohibition
Libertarian Party
One private individual
Opposition
None
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744