BOISE — Two Treasure Valley lawmakers are working on a bill to overhaul laws police sometimes uses to seize property in drug cases.
The process is called civil asset forfeiture, which allow police to take cash, cars, guns and other items used in the furtherance of drug crimes. The standard for seizures is the “preponderance of evidence” standard that is used in civil cases, not the “beyond a reasonable doubt” used in criminal ones.
In some cases assets have been seized even when a person is not convicted of or charged with a crime.
“It really concerns us in this area of law, the government can uniquely punish people without going through the same processes and safeguards they would in a normal criminal procedure,” said Rep. Ilana Rubel, D-Boise, who is working on the bill along with Rep. Steven Harris, R-Meridian.
Rubel said one proposed change would ensure the only property that can be seized is property that is either the proceeds of a drug crime or is used to commit a drug crime. There have been cases, she said, where property is taken that is found near drugs but might not be directly tied to the crime.
“That seems very overreaching to us,” Rubel said. “We want to scale back the types of property that can be taken.”
Rubel also wants to change the law so property is seized only if someone is convicted of a crime, and she wants to let people keep their property while a case is pending. She said this is especially important in cases where someone’s vehicle is seized before they’re convicted.
“It’s a real setback in Idaho to try and live your life without a car,” she said.
Both Harris and Rubel said they have talked to mostly unsupportive police and prosecutors’ groups about the bill.
“I’m sure they’re going to oppose it,” Rubel said. “They like getting the money.”
Idaho Sheriffs’ Association Executive Director Vaughn Killeen and Twin Falls County Prosecuting Attorney Grant Loebs both told the Times-News it was tough for them to comment on a bill when they haven’t seen the final version, but they defended the use of forfeiture laws now, and said they already contain safeguards to prevent injustices.
“The standard used in asset forfeiture is the same standard used in any civil case,” Killeen said.
Killeen said there are cases where a seizure might appear unfair, but “often what law enforcement knows about individuals when they seize property is much more than a general citizen knows.” For example, he said in a case where police find a small amount of drugs and seized all the cash in a house, “if those same people have made buys off undercover agents, then that knowledge base contributes toward seizing the money.”
“So again, I don’t think that law enforcement by and large is somewhat haphazard about this process,” he said. “I think that they’re very responsible.”
Loebs, too, said there are already protections for innocent property owners, and a requirement that law enforcement has to establish “a nexus with either fruits of a drug crime or that they are enabling people to commit drug crimes” when they seize property.
“I think that many of the proposals that are being made are going to make it very difficult for law enforcement to seize the proceeds of a drug crime or (seize) the means to commit a new drug crime, and that’s the big concern we have about that,” he said.
Changing asset forfeiture laws, like many other criminal justice reform and police power-related issues, is one that can unite liberals with libertarian-leaning conservatives with whom they would disagree on most other controversial topics.
“Both sides of the aisle, if you will, come together on this,” Harris said.
The American Civil Liberties Union of Idaho and the Idaho Freedom Foundation, for example, have teamed up to support changing the law. IFF head Wayne Hoffman said people should be “able to utilize our legal system as intended, where (you’re) innocent till proven guilty, and if you’re not convicted of something, you don’t lose your property.” He gave the example of a case where a man had a small amount of marijuana and police seized the silver, gold and weapons they found in the house near the pot.
“He was never charged with a crime but all his stuff was taken from him,” Hoffman said.
Hoffman said lawmakers should change the law now, rather than waiting until there’s a crisis, since “every abuse of governmental authority is a crisis” to the people involved.
“To the person affected by the statute, it’s a very, very big deal,” he said.
Whether the bill goes anywhere could largely depend on who is in what leadership positions when the Legislature meets next in January. Rubel said they approached Rep. Rich Wills, R-Glenns Ferry, who was chairman of the House Judiciary and Rules Committee, during the 2016 session about the idea. Wills, who was a retired state trooper, “indicated he was not very interested in moving the bill forward if it was opposed by law enforcement,” Rubel said.
However, Wills lost in the Republican primary in May. The new Judiciary and Rules chairman is expected to be named at Thursday’s organizational session of the Legislature. Rubel said that the year’s delay has given them more time to build up support.
“We’re optimistic we’ll be able to head into the session with a more developed bill (and a) broader range of supporters at our back,” she said.