Senate forfeiture bill advances

Over the objections of law enforcement and prosecutors, a bill that removes civil courts from criminal asset forfeitures and requires a conviction before they are finalized, has cleared a Senate hurdle.

The bill, Senate File 2155, from Sen. Scott Newman, R-Hutchinson, was approved by Senate Judiciary, 6-2, on March 26.

In addition to making forfeitures part of criminal cases, the bill prevents local law enforcement agencies from profiting directly from assets and cash seized at crime scenes. Current law allows local law enforcement and prosecutors to keep much of those proceeds to further anti-drug efforts and criminal investigations.

Now the funds would be distributed by the state.

“If you separate where the money goes from the confiscation of those funds, you have broken that inherent conflict of interest,” said Sen. Ron Latz, DFL-St. Louis Park, a bill co-author. “I can’t imagine a more basic conflict of interest concept than that.”

The bill requires that forfeitures be treated as part of an underlying criminal charge. It also provides for a pretrial hearing to determine the validity of a seizure and creates more timely opportunities for innocent property owners and lien holders to challenge them.

To get confiscated property back under the current system, owners must file civil suit within 60 days or face liquidation of their assets. Because they are deemed administrative seizures, law enforcement agencies currently can complete a forfeiture without court involvement, unless a lawsuit is filed in civil court.

The average forfeiture in Minnesota is worth about $1,500, which critics contend leads many claimants to walk away from their property rather than sue for it. That places unfair burdens on the poor and communities of color, critics contend.

It also places undue burdens on innocent owners, they say. That was the issue in the recent Olson v. One 1999 Lexus decision. There the Minnesota Supreme Court ruled a woman’s due process rights were violated by the seizure of her car. The vehicle was taken after her daughter, who drove the car, got arrested on a repeat DWI offense.

Only GOP members Bruce Anderson, R-Buffalo Township, and former Douglas County Sheriff Bill Ingebrigtsen, R-Alexandria, voted no when the bill went before the Senate committee vote Tuesday.

Sen. Kari Dziedzic, DFL-Minneapolis, left the meeting without comment and without casting a vote. Dziedzic is the daughter of former Minneapolis Police Inspector Walt Dziedzic.

Supporters sound off

Newman said his bill is no indictment against law enforcement or prosecutors. They do nothing wrong by following state statute as currently written, he said. But he said that there is “something inherently wrong” about the current state of the law.

“It simply is not fair,” Newman said. “It honestly strikes me as being un-American.”

The bill’s companion, House File 1971 from Rep. John Lesch, DFL-St. Paul, has already cleared several committee hurdles in the House.

Lee McGrath, senior legislative counsel for the Institute for Justice, has championed civil forfeiture reform for years. He spoke to the Senate committee on March 26.

McGrath said that, with limited exceptions, the legislation does nothing to change what investigators can do. The only substantive change affecting officers is that cash under $300 and vehicles worth less than $2,500 would be off limits.

The big change takes place in the prosecutor’s office, McGrath said. The bill eliminates the two-tiered system in which claimants must deal with both the criminal court as a defendant and the civil court as a claimant. The forfeiture procedure would be folded into the criminal case, enacting a much speedier process.

McGrath said seizures are a legitimate component of criminal justice and the legislation does nothing to stop them. It merely requires that prosecutors prove their case before the assets are forfeited.

After diverting about $2 million to pay off liens and cover law enforcement’s investigative costs, the bill puts the balance of the roughly $7 million worth of assets seized annually into neutral accounts, McGrath said. That money would be redistributed to a human trafficking victim’s fund, the state’s public defenders and the Office of Justice Programs to fund crime prevention and law-enforcement grant, he said.

Newman suggested he might support a change in the bill that places liquidated assets into a special state revenue fund that more directly supports local law enforcement. But no such amendment to the legislation was offered at the hearing.

Defense attorney Dan Koewler — the attorney in the Olson case — said the bill fixes most of the constitutional problems that plague the current law.

“Innocent owners will get their day in court,” he said. “They may not win, but they will at least get their day in court.”

Alternative take

Nora Sandstad, an assistant St Louis county attorney, testified against the bill. She said her office handles about 300 forfeitures a year. “We do them well, we do them ethically, we do them responsibly and we do them fairly,” she said.

She said the bill has many deficiencies. For instance, she said, implementing the law without any change could force the state to return drug proceeds to a dealer who has admitted to the crime. Law enforcement officials at the hearing made similar arguments.

Proponents said that would not happen. “There is no real party in interest that is able to come forward and make a claim that they want their illegal drugs returned to them,” Newman said.

Sandstad said the law could also force prosecutors to push for harsher sentences in order to secure conviction and forfeit proceeds. “Then you are entering into an ethical conundrum for prosecutors,” she said.

Latz responded that prosecutors already have an ethical conflict, simply by profiting from assets seized as part of their criminal prosecutions.

Brian Mueller, Washington County’s chief deputy sheriff, acknowledged that the average seizure is just $1,500. But that equates to five pounds of methamphetamine, he said. Even at that level asset seizures are a powerful tool in the fight against drug cartels, he said.

Mueller said it would be a major policy mistake to take control of seized assets from local police and prosecutors.

That money is used to buy drugs for undercover drug stings, he said. It also buys equipment and ammunition; Naloxone to rescue people from drug overdoses; protective equipment for officers who dismantle chemical labs; and body- and squad cameras that help keep law enforcement accountable, he said.

“If local law enforcement were to lose control of these funds, the negative impact to agencies in the metro — and more so in Greater Minnesota — would be immediate,” he said.

Newman said that he thinks the law officials sincerely believe administrative forfeiture is a powerful crime-fighting tool. They might even be right, he said. But there is one interest that trumps their opposition, he said — due process.

“In this day and age, as divided as our society is, I think we need more due process not less,” Newman said.

McGrath agreed. He said that the bill was written in anticipation of the state Supreme Court’s ruling in the Olson case. Before it was authored, lower state courts had already found the forfeiture law, as applied, unconstitutional in that case. The Supreme Court agreed — at least with respect to the innocent owner, Helen Olson.

“The Supreme Court has said in Olson — as other courts have said across the country — that the government can’t seize and sit on property,” McGrath said. “The mother, Mrs. Olson, deserves a prompt day in court.”

Newman said that if law enforcement’s use of forfeited funds continues without change, he fears public confidence in the police will further erode. “We need to improve the reputation of law enforcement,” he said. “And I don’t think this is the way to do it.”

As to all of the funding that local law enforcement might lose, Newman suggested that a remedy is available.

“We have to properly fund local law enforcement,” Newman said. “But it’s the Legislature that should be doing the appropriation.”