Imagine you're pulled over on your way home from work, and the officer thinks it is suspicious that you have $800 on you. Although he can't find any evidence in your car that you've done anything wrong, he takes your cash. You never broke the law, and you are never convicted of a crime. Yet you may never see your $800 again, and most of it will eventually be deposited with the local police.
This may sound ludicrous, but it happens every day across California and the country. It's called civil forfeiture, and it needs to be reformed.
Through civil forfeiture, police and prosecutors can seize private property -- cars, cash, homes, boats -- that they suspect is involved with a criminal activity. Unlike criminal forfeiture, a property owner doesn't actually have to be found guilty of a crime to lose his property.
Civil forfeiture laws make it easy for law enforcement to seize property -- and profitable. In many states, law enforcement can keep a portion (65 percent in California) or all of the proceeds from the sale of seized property, giving them a direct financial stake in forfeiture efforts. This has led to policing for profit, not justice.
Incredibly, it gets worse. Federal law makes civil forfeiture easier than California law and more profitable. Through a program called "equitable sharing," state and local police can partner with the federal government to take property they likely couldn't under California's tougher standards and receive more of the proceeds back -- up to 80 percent.
Perhaps not surprisingly, forfeitures in California under federal law have outpaced those under state law by about two-to-one from 2002 to 2009. California equitable sharing far outpaces all other states; in 2010, California received nearly 20 percent of all Department of Justice equitable sharing payments nationwide.
California civil forfeiture law is far from perfect, but the state's elected officials decided that it shouldn't be so easy to seize property. And they decided that law enforcement should receive a smaller share of forfeited property, with 24 percent of proceeds going to the state's general fund.
The equitable sharing loophole gives California law enforcement an easy way to evade these restrictions, take property they couldn't otherwise and divert proceeds from the general fund. Indeed, equitable sharing may have cost California's general fund at least $108 million from 2002 to 2009.
Legislation currently before the Senate Public Safety Committee, A.B. 639, would reduce the profit incentive law enforcement faces when they're deciding between proceeding under state or federal law, so assets are seized based on the suspected nature of the crime and not on the potential windfall.
The bill would require a court to authorize the transfer of assets to the federal government for forfeiture. If law enforcement can show that there is good reason to use federal law instead of state law, they can continue to use equitable sharing. If, however, law enforcement attempts to use equitable sharing without a court order, the state can force them to turn 24 percent of any forfeiture proceeds over to the general fund.
Americans overwhelmingly oppose end-runs around state civil forfeiture laws. In a recent national poll with 1,000 participants, 67 percent believed agencies should not be allowed to take advantage of the equitable sharing scheme to evade stricter state laws, like California agencies do. Large majorities also favored other reforms to protect property rights and remove financial incentives from law enforcement.
Concern over the possible impact of reform on law enforcements' budgets concedes the point that forfeiture is being used as a revenue generator, and this is deeply problematic. Law enforcement should receive the funds they need to fulfill their primary responsibility of protecting Californians and their property, but funding should not be tied to forfeiture activities. Civil forfeiture distorts police priorities by encouraging the pursuit of more profitable suspected crimes under federal law, at the expense of the fair administration of justice and private property rights. Justice can't be determined by profitability.
Importantly, A.B. 639 will not touch criminal forfeiture. Law enforcement will still be able to pursue criminals' ill-gotten gains.
But innocent property owners shouldn't be in the crosshairs of the pursuit of property, and police and prosecutors should not have to weigh their pecuniary interest into decision-making about forfeiture. It's time for law enforcement to stop evading the will of the people and start obeying state law.