In 2002, the Colorado General Assembly enacted important reforms to prevent abuses in government seizures of private property. The measure had bipartisan sponsorship and was overwhelmingly approved by both houses.
House Bill 1238, scheduled to be heard in the House Judiciary Committee today, would gut those controls. It should be rejected. Government confiscation of private property should occur only in direct connection to a crime and only after a conviction. To do otherwise is foraging, not law enforcement.
The idea of property forfeiture arose from the so-called war on drugs. Planes, boats, cars or houses found full of drugs were clearly an element of the crime itself. And given that profit is the whole point of illegal drugs, seizing dealer's assets strikes directly at their crime.
As that tactic evolved, however, abuses were allowed to creep into the process. Asset forfeiture was a civil procedure held to lesser standards than criminal prosecution. A defendant could be acquitted of a crime, but still forfeit his property - something most Americans would deem inherently unfair.
Perverse incentives also developed. Before 2002, law-enforcement agencies were allowed to keep what they seized and use it any way they chose. That unfairly put cops in a bad light by raising questions about their motives. It also tempts elected officials to encourage law enforcement to provide more of its own funding, which further undermines community support for law enforcement.
In essence, the 2002 reform required property seizures be tied to actual crimes, forbid law-enforcement agencies from simply keeping whatever they seized, and required an annual report be submitted tracking any property seizures. HB 1238 would undo all that.
Under the law now, after any lienholders, victims or innocent co-owners are satisfied, property seized is divided equally between local drug-abuse programs and local government (the city council or county commissioners depending on whether police or the sheriff seized the property.) HB 1238 would reintroduce the profit motive by allowing law-enforcement agencies to keep what they confiscate.
It would also repeal the requirement that a criminal conviction precede a property seizure. It would allow forfeiture even if the owner did not know that the property was used in commission of a crime. (Landlords might want to think about that one.) It would remove the need to prove that the property being seized was instrumental in a crime. And it would do away with the recordkeeping mandated by the 2002 reform.
Most police officers, sheriffs and prosecutors are of course honest, law-abiding folk. It would not take many bad apples, however, to turn such lax regulation of the power to seize private property into old-fashioned piracy.
More to the point, it would not even require dishonesty. Most government abuses of power are not committed by corrupt officials, but by honest people zealously pursuing what they believe to be worthwhile goals. That, not so much the fear of actual corruption, is the underlying reason for checks and balances.
The current protections governing seizing private property do not constitute an undo burden on law enforcement. Property used in crimes can be seized, as can criminals' profits. All that is required is that law enforcement first prove in court that the property owner is in fact a crook. That is little enough to ask.
House Bill 1238 should be defeated.