Forfeit Me Not

The legislature redefines a public nuisance

The battle to overhaul Colorado's civil forfeiture law provided a few sparks in an otherwise dull legislative session. It was a classic clash of principles, pitting law-and-order types who view forfeiture as a powerful weapon in the war on drugs against defenders of constitutional rights and the sanctity of private property.

It was also about money. Assuming that a disgruntled governor doesn't seek to veto House Bill 1404, the new law will not only make it more difficult for law-enforcement agencies to seize cash, cars and other goods without a criminal conviction, but it will also cut into the financial incentive for those agencies to pursue forfeiture cases, since half the proceeds will be redirected to drug-treatment programs.

Previously, local district attorneys and police agencies could use most of the proceeds of forfeiture actions they initiated for their own internal use. In 2000, for example, the City of Denver used a variety of seized vehicles -- including a 1998 Navigator and a 1990 Lincoln limousine -- in "undercover operations and training" while spending a total of $1.6 million in forfeiture proceeds on office equipment, police training and grants, professional conferences and other activities.

Just how much other agencies across the state collect from forfeitures and how they spend it is a matter of speculation; only a handful of the seizing agencies consistently file required annual reports detailing their forfeiture actions.

"One of the problems was a whole lack of reporting," says Christie Donner of the Colorado Criminal Justice Reform Coalition, one of the groups that supported HB 1404. "Some law-enforcement agencies and district attorneys haven't reported at all. They're accustomed to having this liquid fund that's at their discretion to use."

Concerns about how forfeiture laws are used and where the money goes have prompted reform efforts in a number of states, as well as in Congress. Oregon and Utah passed ballot initiatives restricting forfeiture actions two years ago. New Mexico's legislature retooled its law this year. But most of the debate over forfeiture in Colorado has revolved around two issues: the tougher standards of evidence that HB 1404 requires of prosecutors before they can seize property, and the way the proceeds will be divvied up.

Denver District Attorney Bill Ritter, who testified against the measure, frets that the law requires prosecutors to show that a property owner has "knowledge or notice" that his property is being used in criminal activities before a forfeiture action can proceed.

"We've done a number of cases where the owners were never charged criminally," Ritter notes. "Let's say a guy is dealing drugs out of Room 312 in a motel. Maybe they're renting the room to eight people, and you catch one dealing drugs, so they boot them out. Then you catch another one, and so on. We're never going to be able to show that the owner knew of the specific crime that is the public-nuisance act. That doesn't address what we need in the law to go forward."

Ritter complains that the anecdotal evidence of supposed forfeiture abuses presented to lawmakers was misleading. The most-cited case involved a Mexican national who was on his way back to Mexico after working in Alaska and was detained at the Denver airport after police discovered he was carrying $15,000 in cash. Although never charged with a crime, the man agreed to a settlement that allowed the police to keep 60 percent of the seized cash while he headed home with the rest of his funds.

Ritter says that incident occurred twelve years ago, and the owner could have held on to all his cash by "rebutting the presumption" that it was drug money -- say, by presenting paycheck stubs or other proof of how he acquired the funds. "If we don't have any ability to show it's tied to drugs, we can't keep it," he says. "Every time they've mentioned a case, it's a much broader story than we've had presented to us."

The Denver DA also says he and fellow prosecutors aren't opposed to putting more money into drug treatment. But Ritter predicts that diverting half the proceeds to treatment programs will have a severe impact on rural law-enforcement agencies, which are struggling to find funds for expensive meth lab cleanup procedures.

"This is a major public-policy reform," he says. "Congress took four years to get to its [forfeiture] reform, and we were trying to do it in less than four weeks."

But local reformers say the old law put too much burden on property owners to prove they're innocent rather than placing the onus on the government to prove guilt. And Donner says she's unaware of any forfeiture proceeds being devoted to drug treatment until HB 1404 came along, with one exception: San Miguel County Sheriff Bill Masters, a nationally known critic of the drug war, has used some proceeds to provide low-interest loans for drug treatment.

In the debate over the bill in the Colorado Senate, former state trooper Ken Arnold grumbled that the bill is "a drug dealer's paradise" that will have pimps and pushers chuckling all the way to the bank. "This is a bad bill," he said. "We're doing plastic surgery on a Frankenstein."

Sponsor Bill Thiebaut responded that HB 1404 is the "property-rights bill" of the year. "There is clarity under this law, and it preserves a lot of individual liberties," he said. "Those are two things we don't have under the current law."

 
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