KOPEL: TRANSPARENCY SHOULD PREVAIL IN FORFEITURE CASES
Victims of crime shouldn’t have to forfeit their rights under HB 1238
We should not go back to a system that makes police and district attorneys look like pirates out for loot, rather than enforcers of the criminal justice system. Yet, that might happen if House Bill 1238 by Rep. Joe Rice, D-Littleton and Sen. Brandon Shaffer, D-Longmont, should pass.
Forfeiture of money and other property is allowed in Colorado in regard to ALL felonies and some misdemeanors. And that is not the problem. As you read this column, you may not be able to pick out the “good guys.”
Innocent owners of property should be the first on the list to get their property back. But if property is forfeited, victims of the crime should be the ones who should continue to get an early crack at the property forfeited. That is true today, but is not true under HB 1238.
For 15 years — from 1987 through June 30, 2002 — forfeiture statutes allowed law enforcement to seize property for its use even if they had no proof that a crime had been committed.
The process was called a “civil action,” and, supposedly, it was an action against property, and was not punishment of a person.
The government (as the plaintiff) in the civil action only needed to prove slightly more evidence in support of forfeiture than against forfeiture. All that was needed was “probable cause.”
Those words usually have been used as the standard for obtaining search warrants for future investigation rather than for the final determination of guilt. “Hearsay” (words of someone else) also may be used to establish probable cause.
“Probable cause” means there ‘s enough evidence to indicate a crime has been committted, but not necessarily enough for a successful prosecution.
Since 1992, the side that had more evidence on its side would win.
Since the current law was passed in 2002, to obtain a criminal sentence (with a few exceptions) the district attorney has to prove guilt and obtain conviction or a plea of nolo contendere, which means without admitting to have done the deed.
There must be clear and convincing evidence that the property seized was an instrument of, or traceable to, the crime committed.
To retain ownership, the owner must prove innocence of the crime involved.
Proceeds from property seized presently go first to pay off liens, then innocent partial owners, then to pay victims of the crime. After half the remaining proceeds go to state, county or city officials that have budgetary control over law enforcement and are used for “public safety purposes” unless they’ve been appropriated for another purpose.
The other half funds detoxification and substance-abuse programs.
There are exceptions for federal funds provided to district attorneys.
Extensive information regarding forfeiture assets and disbursements are filed annually with the state as “open records.” Under a statute, failure to file can lead to elected officials being removed from office.
Transparency is removed from the law under HB 1238 language, by amending reference to the Public Record Act.
HB 1238 goes back to a former way of dividing up forfeiture money used between the years 1992 to 2002. A group of insiders, the district attorney, police chief, the judge, strike enforcement chief and one representative of budget decisions for government, made the decision.
Why is that important? Here are some examples from what happened under the law prior to 2002.
“Hundreds of thousands of dollars intended to aid crime victims are being spent by Denver police,” stated the Rocky Mountain News, “on everything from trips to Las Vegas to $700 chairs for the chief of police.” (These were dollars raised through forfeiture.)
From an editorial in the News in September 1991, we learn that the amount of money allowed for assistance to victims was reduced from 10 percent to 5 percent.
Another Denver newspaper article pointed out that, of $1.7 million seized in Denver in 1990 and 1991, only $99,000 went to crime victims.
The Lakewood Jefferson Sentinel on May 14, 1992, reported the Lakewood Police Department’s annual Hall of Fame banquet to honor police department employees cost more than $30,000 in forfeiture funds in 1989, 1990 and 1991.
In 1992, attorney Doug George, of Alamosa, traveled to Denver to give testimony on a bill I sponsored to change the forfeiture law. He told the House Judiciary Committee about a case in which a widower father confessed to sexual abusing his underage daughter.
Since the crime occurred in his house, which was free of encumbrances, the DA began a forfeiture action to take ownership of the house from the father and give ownership to the DA’s office.
If the forfeiture had run its course, the victim of the crime — as well as her two brothers, 17 and 18 — would have been kicked out of the home with nowhere to go.
The only purpose served by forfeiture was to obtain a free house for the DA’s office. Harsh punishment. however, would be served upon the innocent victims.
The children could not claim the protection of an affirmative defense since they did not own the property.
The end result of the story? According to George, citizens of the community passed the hat and collected enough money to pay the DA’s office to release the forfeiture claim.
Had the 2002 law had been in play back in 1992, it would have allowed the victim of the crime to be compensated before the state and law enforcement agencies could divide up the money.
The children, through appointment of a guardian, could have had the court transfer title of the home to them.
The 2009 Legislature should not take away a crime victim’s right to go into court to prove the crime injured them and be made as whole as is possible.
Rep. Rice has been heard labeling the 2002 amendments the product of a combination of extreme left- and right-leaning legislators.
Sponsors of HB 1404 in 2002 were Rep. Shawn Mitchell, R-Broomfield, chief sponsor of the measure, who produced a 51-to-11 House vote, and Sen. Bill Thiebaut, D-Pueblo, who persuaded a 23-to-10 vote in favor in the Senate. The 74-to-21 passage produced a moderate legislative bill.
If HB 1238 becomes law, you can expect to see lots of future stories about forfeiture money being used in ways that will likely embarrass its legislative supporters.
Jerry Kopel served 22 years in the Colorado House.