By Jerry Kopel
May 17, 2000
Sometimes, a law intended to punish the offender ends up punishing the victim. That's the problem with Colorado's forfeiture law which permits seizure of property by the state, often without the need to prove that a crime has been committed, and without recompense to persons who have been injured.
Eight years ago, Alamosa attorney Doug George appeared before the House Judiciary Committee to testify on a bill to change the forfeiture law. While the bill died in committee, his testimony remains alive and alarming. Here is part of what Mr. George told us, (using initials instead of names):
"In a case I was involved in, the case of Mr. S, a widowed father of three children was accused of sexually abusing a child. When he was questioned about the accusation by the police, he immediately confessed to his wrongdoing, expressed his remorse, and plead "no contest" to the criminal charges.
"He was convicted and was sentenced to community corrections by the court. Since the crime had taken place in the man's house, which was free and clear of all encumbrances, the District Attorney's office filed a forfeiture action to divest Mr. S. of all ownership of the family home.
"If the forfeiture action had run its full course, the girl who was the victim of the crime, as well as her two brothers, would have been kicked out of the home with nowhere to go. This would have left the child victim of the crime and her two older brothers, who were about seventeen or eighteen years old, completely homeless.
"Nevertheless, under the present statutory scheme the prosecution could have taken the home away from the family as a prize for the man's open confession. The man had been sentenced to community corrections, so any "nuisance" that the house presented had already been effectively abated. The only purpose to be served by the forfeiture was to obtain a free house for the D.A.'s office without regard to the harsh punishment that would be served upon the innocent victims.
"Even though the children of Mr. S. were innocent victims of the crime and would lose their home as a result of the forfeiture statute, they could not claim the protection of an affirmative defense, since they were not owners of the property at the time the forfeiture action was filed. The children would then have not only been victims of a father's abuse, but they would have been subject to the abuse of the power of the current statutory scheme as well."
The end of the story? According to Mr. George, public criticism forced the D.A.'s office to release the forfeiture claim.
If the same crime had happened under present statutes, Mr. S. would likely have been sentenced to a prison term, but the children would still have had to contend with forfeiture of the house. If the D.A. had not seized the house, attorneys could have sought appointment of a guardian for the girl, sued the father for civil damages and used the damages ordered by the court to force transfer of title to the house to the children.
This year, Rep. Richard Decker (R-Fountain) and Sen. Bill Thiebaut (D-Pueblo) introduced HB 1369, to "increase claimant's protections in asset forfeiture actions". The bill died in House Judiciary Committee following heavy opposition by law enforcement lobbyists.
Decker's bill would have provided additional protections for owners or co-owners of property who were innocent of any wrongdoing and it would have added reasons why a temporary restraining order on property should be lifted, such as to enable a going business to continue to function. But the children of Mr. S. would not have been helped by the Decker bill.
There are some amendments to the forfeiture law that are really needed. One was spelled out in a Rocky Mountain News editorial: "Call us old-fashioned, but we subscribe to the view that constitutional rights are constitutional rights whatever the alleged crime, meaning a criminal suspect deserves the same procedural safeguards whether he is charged with selling drugs or selling stolen property.
"In either case, moreover, the state should have to prove a crime before keeping any property seized at the time of arrest. Currently, prosecutors don't even have to file a charge against suspects whose assets they covet. Which is why abuses of forfeiture laws flourish -- and not just in Colorado..."
In a criminal case, the prosecution has to prove its case beyond a reasonable doubt. In a "civil" forfeiture case, they have to prove their case by a preponderance of the evidence. That is a major drop in the amount of proof needed to show a crime (and public nuisance) was committed.
And here is an amendment that would have helped the children of Mr. S. Allow the VICTIM of the crime to be compensated under the statute BEFORE the state and law enforcement agencies divvy up the money. That would have allowed the children to obtain the house.
At the present time "any person who suffers bodily injury or property damage as a result of the action which constitutes the nuisance" is treated like the hyena or vulture who have to wait until after the lions have gorged themselves on the gazelle.
The law states that law enforcement enrichment "shall not be the primary purpose of asset forfeiture." And if it is in the law, it must be true. Right?
Formerly a Democratic State Representative for 22 years, Jerry Kopel wrote this article for the Independence Institute, a free-market think tank in Golden, http://i2i.org.