A CURE FOR SOME OF COLORADO'S SEIZURES

Every so often, our General Assembly tries to do the right thing, or at
least certain legislators do. That's the case with House Bill 1404,
sponsored there by Shawn Mitchell, a Broomfield Republican, and in the
state Senate by Bill Thiebaut, a Pueblo Democrat.

Their proposed law would go a long way toward curing a cancer known as
"Civil Asset Forfeiture," which allows police and prosecutors to seize
property without enduring the nuisance of actually convicting its owner of
a crime.

As I have often remarked, we can have a Bill of Rights or we can have a War
on Drugs, but we can't have both, and as you might expect, Civil Asset
Forfeiture is a byproduct of the War on Drugs.

Go back 20 years or so, and presume there was a cocaine importer in Miami
who had grown wealthy. His business comes to the attention of the
authorities, and he is duly arrested.

But he's been doing this for years, and by selling off a few gold chains or
one of his yachts or mansions or the like, he is able to employ world-class
defense counsel to oppose some poorly paid federal prosecutors, and
consequently he gains an acquittal.

To put this another way, he used the proceeds of his criminal enterprise to
finance his defense, and this was an affront to the Drug Warriors. So they
came up with a new scheme - Civil Asset Forfeiture - and wrote the law so
that the deck was stacked in their favor. Any lawmaker who questioned this
assault on American rights could be slimed as ""soft on drugs," with
predictable political results.

The Drug Warriors could go after the dealer's assets in civil court, where
the burden of proof is much lower than in criminal court, and the system
was set up so that they didn't have to prove much of anything in order to
take a suspect's assets.

Thus impoverished, the suspect would get stuck with a public defender who
would plead him out to a few years in prison, and another drug dealer would
be out of business for a while. Thanks to this wonderful new tool, the War
on Drugs would soon be won and Americans would confine their addictions to
substances sold by Fortune 500 companies.

It didn't work, of course, even if it might have sounded like a good idea
at the time. Like many other states, Colorado passed such a law. It set up
some procedures, and required police and prosecutors to file a report every
year with the state Department of Local Affairs.

When it comes to laws, most of us are expected to obey them, and some
people aren't. Out of the scores of agencies in Colorado that are legally
required to file these annual reports, only six have actually done so. The
odds are that your police chief, sheriff or district attorney - people
sworn to uphold the law - are in violation.

So, we've got the police and prosecutors out seizing property that may or
may not be connected with crimes, and refusing to account for their
actions. They can take people's property and use it however they please -
and I have a hard time believing that this is what Thomas Jefferson had in
mind when he wrote the Declaration of Independence.

But that's just fine with Pueblo District Attorney Gus Sandstrom Jr., who
told the legislature that his office needs the money. Apparently, he has
trouble making a political case for taxes to support his operations, so he
relies on whatever he can grab under the forfeiture law. "We use the money
to make up for the training the city and county can't pay for and to buy
equipment. We wouldn't have a digital camera without the forfeiture money."

I have to wonder why a prosecutor would need a digital camera, since his
job is to present convincing evidence in court. Any juror who'd spent more
than 20 minutes playing with Adobe Photoshop or the like would be more
likely to trust a telemarketer than a digital image.

As Rep. Mitchell observed, the current law "actually creates an incentive
for the police to take your property because they get to keep what they
take." And Sen. Thiebaut said, "It's inappropriate for law enforcement to
seize and liquidate people's property before they are convicted of a crime.
If you're an innocent person, you shouldn't have your property taken away,
and if it is taken away, you should have due process, even if you're guilty."

So they are promoting a bill that would generally require criminal
convictions before property can be taken.

Current law says the proceeds can be used for "law-enforcement purposes,"
which have included vital crimefighting tools like a hot tub at the
sheriff's house. The new law specifies how to distribute the proceeds of
such confiscations: treatment programs, innocent partial owners, etc.

It's a needed reform, although it might not go far enough. I'd like to see
some serious jail time and asset forfeiture for any sheriff or prosecutor
who has been violating the law. But this is a good start on restoring some
meaning to phrases like "due process," "property rights" and "innocent
until proven guilty."