PROPERTY WRONGS

The U.S. Constitution guarantees that no one will be denied life, liberty
or property without due process of law. But "due process" means different
things in disparate proceedings.

In Colorado, the state must meet a rigorous standard before denying someone
of life or liberty. But with much greater ease, the state can summarily
deprive people of their property.

Those who are charged with drug crimes or a host of other "public nuisance"
offenses - ranging from prostitution to theft by receiving - may be subject
to a civil action called asset forfeiture. In such cases, the police may
seize property such as cars, boats, houses and guns; if the government can
prove by a preponderance of evidence that the property was used in the
commission of a crime, the government may keep the property.

The trouble is that the "preponderance of evidence" standard is lower than
the "beyond a reasonable doubt" standard applicable in criminal cases. That
difference has allowed the government to file - and win - forfeiture
actions in the absence of criminal convictions.

That means a person could be acquitted of a crime, but still lose property
that was deemed instrumental in the commission of a crime that wasn't
proved to have been committed by the owner of the property. In some cases,
people have lost property even though they faced no criminal charges.

The state Supreme Court has held that defendants have no constitutional
right to legal counsel in forfeiture cases. Working- class or indigent
people who are acquitted of or never charged with a crime would have to pay
attorneys to retrieve their property.

Furthermore, most law-enforcement agencies that seize personal property
have been lax in reporting these assets to the state, as required by law.
Only six law-enforcement agencies have dutifully complied with the
reporting requirements, a Denver newspaper has reported.

Where is all the booty, and who is benefiting from it? Taxpayers would like
to know.

Rep. Shawn Mitchell, a Broomfield Republican, and Sen. Bill Thiebaut, a
Pueblo Democrat, are sponsoring legislation to address these concerns.
House Bill 1404, which was introduced last week, would change the
evidentiary burden in forfeiture cases from a "preponderance of evidence"
to "clear and convincing evidence." It would require proof that the
property to be seized was used in the commission of a crime. It would
prohibit the forfeiture of property prior to a criminal conviction, and it
would require the dismissal of a forfeiture claim if a criminal defendant
were found not guilty. The bill would stipulate that the value of the
seized assets must be proportional to the crime.

Additionally, the proposed law would dictate that 75 percent of the
proceeds from seized property would go to a state substance-abuse
prevention fund.

Thiebaut says this is simple due process: "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."

Police officers view asset-forfeiture as a valuable crime-fighting tool. If
a house is used as a central command for a burglary ring, for instance,
there's a real public-welfare reason to seize it. Depriving criminals of
the instruments of crime certainly can improve life for the innocent.

But it's just good, old country common sense that you need to prove the
commission of a crime before appropriating an instrument of that crime.
It's only fair that the rules for property seizures more closely
approximate those for criminal convictions. Colorado's asset- forfeiture
laws are too lax. The Mitchell-Thiebaut bill would correct that. It would
give the term "due process" due reverence.