BILL ANALYSIS �
AB 639
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Date of Hearing: May 11, 2011
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 639 (Norby) - As Amended: March 31, 2011
Policy Committee: Public
SafetyVote: 6-0
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill makes it more difficult for seizing agencies to use
federal asset forfeiture law (which includes few hurdles to
forfeiture) by requiring a court order prior to transferring
seized property to a federal agency. Specifically, this bill:
1)Specifies 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) The criminal conduct is interstate in nature and
sufficiently complex to justify transfer.
b) The seized property is subject to forfeiture only under
federal law.
c) State forfeiture would unduly burden state prosecutors
or law enforcement.
4)Requires the court to provide a property owner the 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 is liable to the state for
a fine of up to 24% of the amount illegally transferred.
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6)Directs that money appropriated to the GF under these
provisions for school safety be redirected to drug prevention
and treatment services.
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 and requires the report to include a significant
amount of additional information.
FISCAL EFFECT
1)Annual GF revenue loss of about $7 million based on the shift
of funds from the GF - because the school safety program
referenced in statute has not existed since 1998 and therefore
those funds remain in the GF - to drug prevention and
treatment.
According to DOJ's latest Asset Forfeiture Report, 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. This figure does not include
federal seizures and forfeitures in which California law
enforcement agencies participated or shared.
2)Unknown, but potentially significant asset forfeiture revenue
reduction to state and local law enforcement as a result of
making it more difficult to use more lenient federal
forfeiture procedures. Under federal law, up to 80% of
forfeiture proceeds go to seizing agencies, with at least 20%
to the federal government. According to the U.S. DOJ's Fiscal
Year Asset Forfeiture Funds Reports, California state and
local agencies received of $75.5 million in asset forfeiture
proceeds in 2010. The state DOJ receives more than $2 million
annually from federal asset forfeitures.
COMMENTS
1)Rationale . The author's intent is to protect property rights
and reduce fiscal incentives for expedited property seizure.
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
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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."
With stricter forfeiture standards in California, proponents
of this bill contend state and local agencies have an
incentive to avoid California law and work with federal
agencies to expedite forfeiture. This bill ensures the
"equitable sharing" process is not abused by requiring a court
order for the transfer of the case. This bill allows the
court to authorize a transfer to federal authorities under
certain circumstances, notably when the seized property can
only be forfeited under federal law.
2)Significant Differences in State and Federal Forfeiture Law .
As noted in the Assembly Public Safety analysis, federal law
offers law enforcement more power and less burden than
California law, including:
a) Administrative (nonjudicial) forfeiture. While state
law limits cases involving personal property worth $25,000
or less, federal law administrative forfeiture is available
for any amount of currency and personal property valued at
$500,000 or less.
b) Burden of proof. Under federal civil forfeiture law,
the government's burden of proof is "preponderance of the
evidence,' a considerably lower standard that the "beyond a
reasonable doubt" standard required in California.
c) Conviction. Federal civil forfeiture law does not
require a conviction.
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.
Direct use of forfeited assets is not allowed under state
law.
3)Federal Forfeiture Loophole or Incentive? With overlapping
jurisdiction in drug-related crimes, state law enforcement
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agencies can circumvent procedural hurdles or forfeiture
distribution schemes under state law by attributing forfeiture
activities to the federal agencies. This is referred to as
"federal adoption" or "equitable sharing."
Under the federal forfeiture statutes, federal authorities can
adopt local and state forfeitures and distribute up to 80% of
the proceeds back to local and state agencies. 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.
4)Support : According to the ACLU, "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."
5)Prior legislation , SB 1886 (Vasconcellos), 2000,was similar
and was vetoed. Gov. Davis 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."
6)Opposition . No formal opposition has been shared with the
committee, though presumably law enforcement will oppose any
effort to make asset forfeiture more difficult. Law
enforcement did oppose SB 1886 in 2000.
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Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081