Imagine what your friendly neighborhood Republicans would say if they knew that government seizure of private property occurred without due process.
They would be outraged. They would call talk-radio shows, light up social media, and make comparisons to storm troopers in brown shirts and black boots.
Yet, conservatives across California and the nation have been largely silent when civil asset seizures involved people suspected of dealing drugs. The guarantee of due process becomes as flexible as a rubber band in drug cases, with constitutional protections giving way to situational politics.
Civil asset seizures without due process have taken place on a regular basis across the U.S. for years. Since 2000 alone, law enforcement authorities have grabbed about $2.5 billion in assets. For some police agencies and prosecutors, seizing assets has become a business model and revenue source.
The practice is perfectly legal under federal law, which allows government agents to define who fits—and doesn’t fit—inside the drug-dealer tent. Legally, agents can seize first and ask questions later.
Under contemporary asset seizure rules, federal agents are asked to produce “clear and convincing” evidence the assets were connected to drugs. But the rules don’t require evidence be examined and accepted by a jury. No judicial finding of guilt is needed before federal agents can take a suspect’s bank account, house, and car.
In California, the state legislature has been struggling to introduce some accountability to the sticky fingers created by federal asset-seizure rules. Senate Bill 443, introduced last year by State Sen. Holly Mitchell (D-Los Angeles), would require California law enforcement agencies to initiate or obtain a criminal conviction before they seize someone’s assets. The legislation has bipartisan support but needs some love. Last September, Mitchell’s bill lost a Senate roll call vote 44-24. The bill has been on the shelf in Sacramento ever since.
SB 443 makes a couple of noteworthy points. It would corral asset forfeiture cases in California courts, rather than turn them over to federal jurisdiction. Most local law enforcement agencies in California don’t like this idea because it would cut down on their cash flow seizures. Law enforcement generally opposes SB 443, primarily for financial reasons.
Under current rules, local police agencies can maneuver around California law and send seized assets to the feds for “adoption” under far more flexible federal rules. The feds often take a 20-percent piece of the action for adopting a case. SB 443 would end the adoption racket.
Innocent spouses would benefit from SB 443. Currently, an oblivious spouse can suffer financially when allegations are made against their partner. Federal law has no mercy for people who make the mistake of marrying the wrong person, but SB 443 gives protection to guiltless spouses.
SB 443 has some bipartisan support, but it obviously raises tough questions for many Republicans. Supporting the bill opens conservatives to accusations they are soft on crime and too willing to forgive drug dealers—labels few elected officials are eager to debate when a contested election rolls around.
A national movement is underway to tighten the rules and bring more due process into the game of asset seizure. A few right-wing organizations, including the Heritage Foundation, the Institute for Justice, and the Koch Institute have supported legislation in various states to build better legal protocols into asset seizure.
Ultimately, SB 443 addresses an essential question: the rule of law. For years, rhetoric has driven the discussion about asset seizure in drug cases, leaving due process parked along the roadside.
The rule of law mandates that prosecutors test their facts before a judge or jury and obtain a conviction based on evidence beyond a reasonable doubt. Under SB 443, a trial and conviction is the minimum threshold for asset seizure.
Before the government grabs private property, it would be nice to know whether the accused actually has committed the crime.
The Mother of all Cannabis Bills
THE MOTHER of all California cannabis legislation for 2016 is a comprehensive bill that amends, adds, or replaces no fewer than thirty-two current state laws. Titled Assembly Bill 1575, the legislation hasn’t received much attention thanks to its bureaucratic density. But it’s worth a deeper look.
AB 1575, authored by Rob Bonta (D-Oakland), provides expansive language to clean up oversights and minor mistakes from last fall’s rush to pass the hat-trick package that became the California Medical Marijuana Regulation and Safety Act.
For starters, Bonta’s bill would rename last year’s landmark legislation the “California Medical Cannabis Regulation and Safety Act.” The change is subtle but hugely symbolic for the cannabis industry: The new name indicates the bureaucracy is willing to adopt language preferred by professionals.
“I look forward to continuing to work with all stakeholders as California moves into this important new era,” Bonta said.
A key provision requires the Board of Equalization to continue its drive toward banking reform with an advisory committee that includes bank and finance regulators, law enforcement, and cannabis industry leadership. Any bank that provides legitimate service to the industry would be exempt from criminal prosecution under state law.
AB 1575 also would establish a new license category for cannabis nurseries and clarify rules about the number of license categories a business may hold (generally speaking, two).
Finally, the legislation clears up lingering ambiguity about the differences between non-profit and for-profit dispensaries and collectives. Under the laws established last year, profits derived from medical cannabis are allowed in California.
Prop. D Detour
The chaotic dispensary scene in Los Angeles may receive some direction from Sacramento this year. Assembly Bill 2385, carried by Reggie Jones-Sawyer (D-Los Angeles), would allow the state to issue cannabis licenses to legitimate L.A. operations without the local permits required elsewhere in California.
The sticking point remains Measure D. Passed by L.A. voters in 2013, the ordinance caps the number of dispensaries in the city at 135—the number operating legally in 2007. City authorities estimate more than 700 shops were operating illegally when Measure D was approved. Hundreds have been shut down in the past three years.
AB 2385 lets the state overlook the touchy issue of local control until L.A. figures out a more realistic plan for regulating sufficient cannabis dispensaries to meet the needs of the Los Angeles market. The bill would allow the state to issue licenses to legit L.A. cannabis operators without the local permit that’s required elsewhere in California.
R.E. Graswich is a veteran author, journalist, broadcaster, and communications consultant. He has written extensively about state and local.