September 30, 2016
Yesterday, California enacted a law that is among the country’s most far-reaching protections against civil asset forfeiture abuse and became the latest state to curtail policing for profit.
Senate Bill 443, authored by Senator Holly Mitchell (D-Los Angeles) and Assemblymember David Hadley (R-Torrance), requires a conviction in most cases prior to the permanent loss of property through civil asset forfeiture under state law and procedure and in most cases prevents law enforcement from receiving a share of federally forfeited assets unless there is a conviction in an underlying drug case.
Civil asset forfeiture has been used by law enforcement to seize and keep cash, cars, real estate, and any other property suspected of being connected to criminal activity even if the owner is never convicted of a crime. While civil asset forfeiture was originally conceived as a way to target the resources of criminal organizations, it has become a method for law enforcement to confiscate and profit from the savings and property of those not charged with any criminal wrongdoing.
Prior to the passage of SB 443, there were very few restrictions on state law enforcement for forfeiture cases sent into the federal system. Reforms to state forfeiture procedures, established in 1994 with Assembly Bill 114 (Burton) imposed higher evidentiary standards and a conviction threshold for cash forfeitures of up to $25,000. California law enforcement found a way around the 1994 reforms by pursuing forfeitures federally where the state’s protections do not apply.
In the last 20 years since California implemented these reforms, law enforcement agencies across the state chose to exploit this federal loophole, known as equitable sharing. In 2015, the Drug Policy Alliance published “Above the Law: An Investigation of Civil Asset Forfeiture Abuses in California,” a report that revealed that between 2005 and 2013 California law enforcement agencies’ revenue from state forfeitures remained stable while their revenue from federal forfeitures more than tripled.
The new law removes the financial incentives for law enforcement to seize property and pursue forfeitures with federal agencies in cases where one is arrested, charged or convicted of a crime. The passage of SB 443 is a significant reform in the most populous state in the nation and adds California to a growing list of states — including Florida, Maryland, Michigan, Minnesota, Montana, Nebraska, New Mexico, Tennessee, Virginia, Wyoming — who took a stance against policing for profit.
The victory in California is a model for other states and reflects a national bipartisan consensus that civil asset forfeiture abuses must come to an end.
Theshia Naidoo is the legal director of criminal justice with the Drug Policy Alliance.