CIVIL FORFEITURE'S EXCESSES

The issue: Bill would restrict the taking of private property

Our view: If the legislature won't act, the voters should

The ferocious opposition of law-enforcement agencies to reform of the
forfeiture laws is clear evidence of how badly reform is needed.

House Bill 1404, sponsored by Rep. Shawn Mitchell, R-Broomfield, would tame
some of the worst abuses of this war-on-drugs strategy run wild, and we
encourage legislators to approve it. But if they don't, Colorado voters
should follow the leads of Oregon, Utah and elsewhere and take matters into
their own hands with an initiative.

Last week, after a debate that stretched to seven hours, the House Civil
Justice and Judiciary Committee set the bill aside so Mitchell could tinker
with the language before a vote that could come as early as today.

But the core principles of the bill will remain, Mitchell said. Chief among
them is indeed to make it harder for law enforcement agencies to take
private property for their own benefit. Why, they'd actually have to prove
first in court that the property owner was guilty of criminal behavior
before imposing the forfeiture penalty.

Isn't that the way the justice system is supposed to work? Verdict first,
punishment afterwards?

The bill would also raise the standard of proof that the property was used
for criminal purposes to "clear and convincing evidence," and would reduce
the financial incentive for forfeiture by diverting some of the proceeds
from a forfeiture to drug treatment programs.

As drafted, the bill would still allow property to be seized on suspicion,
but would direct courts to return it unless the owner is convicted. And
even if the owner is convicted, others with a claim on the property who are
not involved in the crime (such as mortgage holders) would be paid before
the agency that carried out the seizure.

Mitchell said he would consider an exemption in cases where a property was
consistently and repeatedly a source of problems although the owner was not
directly involved in the criminal activities of his tenants.

Seems to us that's about as much compromise as civil liberties can stand.

Mitchell expects the committee will send the bill to the floor and we hope
legislators will recognize that simple justice demands its passage. A core
belief of our justice system is that the innocent must be protected, even
if that sometimes means the guilty go free. Civil forfeiture without
criminal conviction can't meet that fundamental test of fairness.

But if by chance that argument doesn't sway legislators, they should give
thought to the periols of legislating by initiative -- as voters are
inclined to do when lawmakers dawdle because they hate to offend important
people. Legislative debate often reveals complications and subtleties in an
issue that the drafters need to take into account; that's what Mitchell has
been doing this past week.With initiatives whose language is fixed, that's
not possible.

The legislature should act to remedy this injustice.