Important Update: HB 1238 - Asset Forfeiture

HEARING DATE FOR FORFEITURE BILL HAS BEEN CHANGED!

NOTE NEW DATE: March 16, 2009 at 1:30pm in House Judiciary Committee

We wanted to let you know that HB 1238, the asset forfeiture bill that CCJRC is opposing, will be heard on March 16, at 1:30.

The bill sponsor, Rep. Rice, has requested a later hearing date because he is working on a substantial amendment to the bill as introduced. As soon as we have more details about the specific changes he is making, we will let you know. It is possible to kill this bill. Your calls and emails are making a difference. If you haven’t had a chance to call legislators, please do so before March 16^th.

So far we have heard from the following members of the House Judiciary Committee that they OPPOSE HB 1238. If you contact them, please thank them for their opposition and their commitment to preserving due process and property rights.

Rep. Claire Levy (D-Boulder), chairman – 303-866-2578, claire.levy.house@state.co.us

Rep. Dennis Apuan (D-El Paso), 303-866-3069, repdennisapuan@gmail.com

Rep. Bob Gardner (R-El Paso), 303-866-2191, bob.gardner.house@state.co.us

Rep. Joe Miklosi (D-Denver), 303-866-2910, joe@joemiklosi.com

Rep. Sal Pace (D-Pueblo), 303-866-2968, sal_pace@hotmail.com

Rep. Mark Waller (R-El Paso), 303-866-5525, mark.waller.house@state.co.us

We do not yet know the positions of the following members of the House Judiciary Committee. If you contact them, please urge them to OPPOSE HB 1238.

Rep. Beth McCann (D-Denver), vice-chairman – 303-866-2959, ehmccann@comcast.net

Rep. Lois Court (D-Denver), 303-866-2967, loiscourt@msn.com

Rep. Steve King (R-Delta), 303-866-3068, steve.king.house@state.co.us

Rep. Ellen Roberts (R-Archuleta), 303-866-2914, ellen.roberts.house@state.co.us

Rep. Su Ryden (D-Arapahoe), 303-866-2942, su@suryden.com

We have also added three more supporting organizations to the opposition: Progress Now, 9 to 5, and The Road Called Strate have all signed on as well. There are now over 30 organizations that oppose HB 1238.

As always, thank you for all you do.

Action Alert – Oppose HB 1238 (civil forfeiture)

Please forward this action alert to any of your friends and family that value due process and property rights. The Colorado Springs Gazette published an editorial in opposition to HB 1238. To read it, click here: http://www.gazette.com/opinion/bill_49055___article.html/colorado_house.html

HB 1238 is opposed by a diverse, bi-partisan coalition including:

Colorado Criminal Justice Reform Coalition, Independence Institute, ACLU, Colorado Union of Taxpayers, Colorado Criminal Defense Bar Association, Colorado Progressive Coalition, Pikes Peak Justice & Peace Commission, The Center for Justice, Peace & Environment, SAFER Colorado, Pendulum Foundation, Rocky Mountain Peace & Justice Center, Metro Community Church of the Rockies, Drug Policy Alliance, Colorado Libertarian Party, Empowerment Program, Alexandria Temple, National Lawyer’s Guild-Colorado, Law Offices of Phil Cherner, Sensible Colorado, Colorado CURE, Cynergetics Institute, Kilmer, Lane and Newman, Youth Transformation, Charities House Ministries, Montview Presbyterian-Peace & Justice Taskforce, New Foundations Nonviolence Center, Left Hand Book Collective, Turnabout, Surrounded by Recovery, Progress Now, 9-5 National Association of Working Women-Colorado, Road Called Strate, Denver Urban Ministries.

What is “civil forfeiture”

Civil forfeiture is used by law enforcement to seize personal property (real estate, cash, jewelry, etc.) they believe was used during the commission of a criminal offense or is proceeds from criminal activity. When property is seized, prosecutors then file a civil forfeiture action against the property and, if the prosecution prevails, the property owner loses all right, title and interest in the property.

Current forfeiture law requires that:

· In most cases, a person must be convicted of a criminal offense before their property (cash, real estate, cars, etc.) can be forfeited for being involved in or proceeds of criminal activity.

· Law enforcement and prosecutors are not allowed to directly keep proceeds from forfeitures but are reimbursed for actual expenses related to the seizure and forfeiture. Once lienholders, innocent co-owners and victims are compensated, any remaining balance is divided 50% to fund substance abuse treatment at the local level and 50% to the county commissioners/city council (depending on whether police or sheriff did the seizure) to fund “public safety”.

· Law enforcement is required to submit an annual forfeiture report to Dept of Local Affairs.

These changes came about pursuant to the passage of HB 02-1404 in the 2002 legislative session. HB 02-1404 was sponsored by (then) Representative Shawn Mitchell (R-Broomfield) and (then) Senator Bill Thiebaut (D-Pueblo). HB 1404 was a bi-partisan effort that passed in the House on a 51-11 vote and passed the Senate on a 23-10 vote. HB 1404 also received editorial board support from the Denver Post, Rocky Mountain News, Grand Junction Sentinel, Colorado Springs Gazette, and Durango Herald.

WHAT HB 09-1238 WOULD DO:

1. Erodes reasonable protections for property owners by

a. repealing the requirement that someone be convicted of a criminal offense before their property can be forfeited. (in a civil forfeiture action, a property owner does not have 5^th Amendment protection against self-incrimination nor the right to counsel)

b. allowing for forfeiture even if the owner didn’t know that the property was used in violation of the law under the theory that he/she “reasonably should have known.”

c. repealing the requirement that the plaintiff prove that the property being forfeited was instrumental in the commission of an offense.

2. Reintroduces the profit motive to law enforcement and no longer requires forfeiture proceeds to be allocated through an accountable budgeting entity (like City Council or County Commissions) but rather allows law enforcement and prosecutors to keep a majority of the proceeds directly.

3. Removes any transparency and accountability by repealing all forfeiture reporting requirements and repeals the prohibition on transfer of forfeiture cases out of state court when local or state law enforcement were the seizing agency, with limited exceptions.

CONCLUSION:

Current law ensures that forfeiture actions are fair and that property owners have due process without undermining law enforcement’s ability to use forfeiture as a legitimate tool. Current law also brings the revenue generated from asset forfeiture into an appropriate budget process and provides accountability while removing any appearance of impropriety. HB 09-1238 repeals these fundamental principals of fairness and due process. It also creates an unacceptable profit motive for law enforcement.

www.ccjrc.org