Limits on asset forfeiture may not have affected law enforcement budgets

For years, people from a wide variety of political perspectives have urged changes to asset forfeiture laws. They got their wish in California in 2016 in the form of SB 443, a law that placed new restrictions on law enforcement's ability to seize property in drug cases.

A report from the Legislative Analyst's Office issued this week found the law does appear to have reduced and changed forfeiture efforts by law enforcement agencies in California. But it also warned changes to federal policies and other factors make it difficult to evaluate the law until more data is collected.

"Folks should be cautious about making definitive conclusions," Anita Lee, the agency's principal fiscal and policy analyst and the author of the report, told The Daily Journal after the report was released Monday.

SB 443 requires a conviction before a California law enforcement agency can receive assets in a drug case forfeiture, except in seizures of more than $40,000 in cash. It also limits a practice called "adoption," in which federal authorities try to seize assets by taking over a state case. That provision was adopted to keep these cases in state courts, where the burden of proof is higher.

"SB 443 reduces the amount of forfeited assets that may be distributed to law enforcement and prosecutors, thus hurting our ability to fund future anti-drug efforts," according to comments from the Los Angeles County district attorney's office quoted in a 2016 legislative analysis of the bill.

According to the analyst's report -- mandated by SB 443 -- forfeiture distributions to law enforcement agencies in California dropped from $126.4 million in 2016 to $90.7 million in 2017. But this appeared to make little difference to most agencies, the report stated, which typically "receive less than 1 percent of their budgets from asset forfeiture."

But several factors make forfeiture revenue difficult to evaluate. Dollar amounts fluctuate based on individual cases; forfeiture distributions jumped 53% between 2017 and 2018, though "this increase can be attributed ... to a single U.S. Department of Treasury case -- likely unrelated to SB 443," the report said.

Meanwhile, the state and federal government also reported differing amounts using different schedules, even though many forfeiture cases involve cooperation between state and federal authorities. Changes to federal policies also have an impact. For instance, the federal government stopped adopting state cases from the beginning of 2015 until mid-2017, a period overlapping with the law going into effect.

The dollars only tell part of the story, however. The report shows "the number of state asset forfeiture cases initiated declined by 26.6 percent between 2014 and 2017," likely due to the conviction requirement and higher burden of proof the law demands. Meanwhile, the report found evidence suggesting agencies are "focusing on higher-value seizures to avoid SB 443 thresholds requiring conviction."

Both changes were intentional, said Mica H. Doctoroff, legislative attorney at the ACLU Center for Advocacy and Policy, a key bill supporter. "The ... encouraging findings suggest that SB 443 is achieving these goals," she said.

Indeed, the bill's author, Sen. Holly Mitchell, D-Los Angeles, said her goals included getting agencies to focus forfeiture on people actually convicted of crimes involving large amounts of money. She cited earlier reports that found most people whose property was seized were never convicted and that low-income people lack the means to fight forfeitures in court.

"Asset forfeiture is essentially legal robbery and we believe that with the passage of this bill and release of the report, the numbers will continue to decline," Mitchell said via email.

The Association of Deputy District Attorneys, which helped lead the opposition to SB 443, did not reply to a call seeking comment.

Daily Journal Staff Writer Blaise Scemama contributed to this report.