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Hold Onto Your Assets

Opinion Editorial
March 2, 2009

Author: Mike Krause

Seven years ago, the Colorado legislature passed reforms to the state’s civil asset forfeiture laws, implementing important safeguards to protect citizens from having their property unfairly seized by overreaching government agencies. Now those reforms are under assault this year.

Asset forfeiture laws in Colorado prior to 2002 were spawned out of the worst excesses of the war on drugs in the 1980s and ’90s and turned the best practices of American justice upside down. People’s cars, cash and other property could be seized without conviction, or even charges being filed and the burden of proof to retrieve unjustly taken property was dumped onto the property owner. It was a disaster for due process.

In 2002, Colorado lawmakers passed, and then governor Bill Owens signed, a law that included a requirement that someone actually be convicted of a crime before their property is seized by government (with some sensible exceptions such as when a person flees the jurisdiction) and removed some of the direct financial incentives for police agencies to go after citizens’ assets by requiring that the profits from forfeiture proceedings be spent under the supervision of responsible officials, such as county commissioners, rather than spent at the whim of whatever agency seized the property.

Support for these reforms was both overwhelming and bi-partisan. The House vote was 51-11 and the Senate vote was 23-10. The bill’s sponsors included then Rep. Shawn Mitchell, a conservative Republican, and then Sen. Bill Thiebaut, a liberal Democrat.

At the time a broad coalition including the Independence Institute, the ACLU of Colorado, the Colorado Union of Taxpayers and the Colorado Criminal Justice Reform Coalition (CCJRC), all came together in support of reforming civil asset forfeiture.

The bill, HB 1404, was an excellent example of both Democrat and Republican lawmakers, and a sometimes disparate band of civil libertarians, property rights advocates and free market proponents all coming together in agreement that there are indeed limits on the state’s power over its citizens.

Unfortunately, House Bill 09-1238, sponsored by Colorado State Rep. Joe Rice, would gut the reforms of 2002 by, among other things, repealing the requirement that someone be convicted of a crime before their property can be seized, re-instating the profit motive for seizure by allowing the seizing agency to keep the lion’s share of forfeiture loot, and ensures both secrecy and a lack of accountability by repealing asset forfeiture reporting requirements.

In other words, HB 1239 is an invitation to misgovernment.

For instance, Texas still allows police to use civil forfeiture without a criminal conviction, or in some cases, even filing any charges. The result has been legalized roadside banditry in the Lone Star state. A Feb. 7 investigative report by the San Antonio Express News found that police in just one Texas town seized property from “at least 140 motorists between 2006 and 2008” while filing charges against fewer than half of those people. According to the Express News piece, “Virtually anything of value was up for grabs: cash, cell phones, personal jewelry, a pair of sneakers, and often, the very car that was being driven through town.”

A December 2008 report by the Texas Senate Committee on Criminal Justice notes: “What was once a crime fighting and law enforcement tool has become a profit-making, personal account for some law enforcement officials. Instances of abuse in both the confiscation and spending of asset forfeiture proceeds have increased at alarming rates.”

These are very recent examples of the kind of egregious practices that led Colorado lawmakers to rethink civil asset forfeiture in the first place

The 2002 reforms brought a degree of fairness and justice to asset forfeiture practices in Colorado, while still allowing police to use forfeiture to take property away from actual criminals. Hopefully lawmakers will think twice before returning Colorado to legalized government piracy.

This article orginally appeared in the Denver Daily News, March 2nd, 2009.