Jerry Kopel

Bad old forfeiture law is attempting a comeback

Pueblo Chieftain, March 8, 2009

By Jerry Kopel

We should not go back to a system that made police and district attorneys look like pirates out for loot instead of providing enforcement of criminal justice standards. Yet that is possible under HB1238 by Rep. Joe Rice, D-Littleton and Sen. Brandon Shaffer, D-Boulder.

Forfeiture of money and other property is allowed in Colorado in regard to all felonies and some misdemeanors. That is not the problem, and 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 HB1238. For 15 years, from 1987 through June 2002, forfeiture statutes allowed law enforcement to seize property for its use without proving beyond a reasonable doubt the commission of a crime.

The process was called a "civil action" directed against property, not against 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."

That has usually been used as the standard for obtaining search warrants for future investigation rather than for the final determination of guilt. Hearsay may also be used to establish probable cause.

Probable cause means reasonable cause having more evidence for their side. Since 1992, whatever qualified as having the preponderance of the evidence on their side would win the battle.

Under present law since 2002, to obtain a criminal sentence (with a few exceptions) the district attorney has to prove guilt and obtain conviction of a crime or a plea of nolo contendere, accepting the punishment without admitting to the deed.

There must be clear and convincing evidence that the property seized was an instrument of, or traceable proceeds to, the crime committed.

To retain ownership the owner must prove innocence of the crime.

Proceeds from property seized presently go first to pay off liens and then innocent partial owners, and then victims of the crime. After payment of expenses, half of the rest of the remaining proceeds go to state, county or city officials with budgetary control over law enforcement and are used for "public safety purposes," other than those already appropriated for.

The other half funds detoxification and substance abuse treatments.

Transparency is removed from the law under HB1238 by amending reference the forfeiture being on the open public record.

HB1238 goes back to a former way of dividing up forfeiture money used from 1992-2002. 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.

"Hundreds of thousands of (forfeiture) 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."

Another Denver newspaper reported that of $1.7 million seized in Denver in 1990-1991, only $99,000 went to crime victims.

In 1992, Alamosa attorney Doug George told the House Judiciary Committee of a widower father who 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 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.

According to Mr. George, citizens of the community passed the hat and collecting enough money to pay the DA's office to release the forfeiture claim.

Had the 2002 law 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 deny crime victims the right to go into court to prove the crime injured them, and be made as whole as is possible.

Sponsors of the 2002 bill, HB1404, were Rep. Shawn Mitchell, R-Broomfield, who produced a 51-11 House vote, and Sen. Bill Thiebaut , D-Pueblo, (now district attorney) who secured a 23-10 vote in favor in the Senate. Seventy-four against 21 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 likely would embarrass legislative supporters.

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