OWENS OVERDOES A PROTEST

The issue: Governor objects to legislation in Senate

Our view: His reading overlooks bill's language

Gov. Bill Owens has rapped proposed legislation to reform the way police
seize the assets of suspected criminals in this state, but his critique is
based on a strange reading of the bill.

First we should confess our bias: We favor reform of so-called asset
forfeiture laws. We've been on record with this position for 10 years or
more, and have already endorsed House Bill 1404, which Owens took to task.
We oppose the idea idea of allowing police and prosecutors to seize and
then keep the property of people who haven't been convicted of a crime.
Such a system is an open invitation to official abuse, and it's a credit to
Colorado's police and prosecutors that they kept abuses to a minimum.

Yet the generally honorable behavior of local law enforcement doesn't make
the current forfeiture law any less objectionable. That's why we welcome HB
1404's attempt to raise the standard of proof for property seizures,
stipulate that the value of the seized property be proportional to the
crime, and mandate a criminal conviction in most cases.

Owens says he agrees with raising the standard of proof from a
"preponderance of the evidence" to "clear and convincing evidence." But he
rather breathlessly claims that the bill "goes too far in protecting the
rights of drug dealers, methamphetamine (meth) manufacturers and other
criminals." How? By mandating "that the property or proceeds be
instrumental to the offense, that the value of the property seized is
proportional to the crime charged and that the proceeds be directly traceable."

The governor even provides an example of what he worries might happen if
the state Senate follows the lead of the House and approves HB 1404: "The
current bill requires a proportionality review for the forfeiture that may
allow a criminal to keep most of the proceeds of crime. For example, if,
after a day of drug dealing, the offender has hundreds of thousands of
dollars in cash and only a small amount of drugs in his or her possession
when arrested, [this] bill would only allow forfeiture of the money
relating to the small amount of drugs. The offender's other profits from
earlier criminal activity that day would be untouchable."

We're not so sure. Based on our reading of the bill, it doesn't go nearly
as far as Owens suggests. While HB 1404 clearly does say that a court must
find "clear and convincing evidence that the value of the property to be
forfeited is proportional to the crime and is not excessive," it goes on to
describe how the court should reach its conclusions. And among the things
the court can consider are "the financial gain derived or sought to be
derived through commission of the offense or related criminal activity (our
emphasis)," and whether the offense "was part of an ongoing pattern of
related criminal activity (our emphasis again)."

What else could this mean but that a judge could indeed consider whether a
drug dealer's "hundreds of thousands of dollars in cash" were related to
his crimes and thus could be used in reaching a decision on proportionality?

Owens agrees that "requiring a criminal conviction prior to the ultimate
forfeiture of property is a common sense and laudable goal that I generally
support." Yet then he maintains that the bill doesn't balance "society's
need to close down nuisance properties such as houses of prostitution, drug
dens and meth labs against an innocent person's right to protect his or her
property from governmental seizure." But here again it's not clear the
governor has read the bill correctly.

HB 1404 specifically says that a property owner "is a party to the creation
of the public nuisance" if he "knew of the public nuisance or had notice of
the acts creating the public nuisance." And in that case, the bill says
that "a judgment of forfeiture may be entered without a criminal conviction
of the owner."

We're not saying the governor entirely misconstrues the bill. Some of his
objections are real enough, and may require compromise with the sponsors.
But he exaggerates when he says the bill goes too far in protecting the
rights of criminals. What it protects are the rights of the accused, and
that's not the same thing.