Legislature(2015 - 2016)GRUENBERG 120
03/30/2016 01:00 PM House JUDICIARY
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HB 317-FORFEITURE: NO CIVIL IN REM; ONLY CRIMINAL 2:05:05 PM CHAIR LEDOUX announced that the next order of business would be HOUSE BILL NO. 317, "An Act relating to forfeiture to the state; relating to criminal law; amending Rules 3, 4, 11, 12, 16, 32, 32.2, 32.3, 39, 39.1, and 42, Alaska Rules of Criminal Procedure, Rules 501, 801, and 803, Alaska Rules of Evidence, and Rules 202, 209, and 217, Alaska Rules of Appellate Procedure; and providing for an effective date." 2:05:15 PM TAMMIE WILSON, Representative, Alaska State Legislature, paraphrased the following sponsor statement [original punctuation provided] as follows: House Bill 317 protects the private property rights of innocent citizens by requiring that Alaska's revered and dedicated law enforcement agencies, convict individuals of a crime before permanently seizing private property. Alaska's "civil asset forfeiture" laws have been reported to be among the worst in the country, allowing private property to be permanently taken from individuals suspected of crimes, even if they are never charged, much less found guilty. Across the nation, civil asset forfeiture laws have gained notoriety in recent years for rampant abuse and deliberate circumvention of due process. Well- documented cases of policing for profit have sparked a wave of reform nationwide. In Alaska, local law enforcement only need to show probable cause to seize property. Failure to challenge a seizure within a given timeframe results in an automatic and permanent forfeiture. These problems are compounded by an incentive for law enforcement to seize as much as possible, since 75-100% of the revenues generated from civil forfeitures flow back to the local agency. Moreover, there is no requirement that Alaska authorities collect or report data on their forfeitures. While assets may be reclaimed, civil asset forfeitures places the burden on individuals to fight the bureaucracy to prove that their assets were not gotten through ill means, or that they did not consent to using their property for an illegal purpose. Civil cases do not provide for free legal assistance, so for individuals that cannot afford private representation, the process is intimidating at best, and ill-fated at worst. HB 317 would require that an individual be convicted of an actual crime before forfeiture proceedings can take place, and would protect guiltless spouses and family members from property loss as a result of the process. The bill would also impose transparency and accountability for civil asset seizures and reduce financial incentives for abuse, by providing that any revenues that do flow back to the state as a result of federalized proceedings, are deposited in the General Fund. This bill reaffirms our confidence in local law enforcement, as well as the most basic tenets of Constitutional law and values. Convicted criminals will still see the fruits of their crime confiscated by the state, but innocent Alaskans can rest easy knowing they will no longer be deprived of property without due process. 2:09:08 PM REPRESENTATIVE WILSON said the bill asks that "if you are going to take something until someone has their day in court, you should take good care of it. I would have already expected that to have happened." She referred to the fiscal note from the Department of Public Safety (DPS) and read as follows: "Passage of this bill could potentially increase costs to the Alaska Wildlife Troopers with respect to managing illegal taken fish and game statewide." She said it is not illegal until someone has their day in court and until they are proven guilty "we do expect you to take care of things." She then referred to the Department of Law's (DOL) fiscal note in the amount of $2 million, which stated it would require eight additional attorneys and eight assistants for each attorney. If the department needs eight additional attorneys, she asked how much is being taken from Alaskans, who is receiving it, and where is it going. She explained that the bill does four things: criminal conviction before forfeiture, provides a consistent overall process for forfeiture, a transparent accounting, and revenues for forfeiture will go to general fund and not necessarily to the agencies deciding whether or not they get to keep it. 2:11:28 PM CHAIR LEDOUX asked whether there is anyone seriously against this bill, but the question was answered by the fiscal notes. REPRESENTATIVE WILSON related that the commissioner of the Department of Public Safety (DPS) advised that he did not like the bill, and the representatives from DOL and the Alaska Court System have discussed their issues and they are working on them. She further related that this is good for Alaska and they should be excited about making sure the legislature does the right thing for Alaskan residents. 2:12:30 PM REPRESENTATIVE LYNN opined that if property is forfeited to DPS or the state, and if [a person] does not act within an appropriate period of time, the agency can take the airplane or boat and give it to the federal government and he doubts the owner would ever see it again. REPRESENTATIVE WILSON advised there is a process to where a person has a limited amount of days to put in paperwork, and if the person doesn't do it the agency has the right to keep it. 2:13:07 PM REPRESENTATIVE LYNN asked whether it goes from the state agency to the federal government. REPRESENTATIVE WILSON opined that it could be a federal case and it could go in that direction but the person would have had to break federal law. She related stories that when the state doesn't have enough evidence the state will turn it over to the federal government and allow them to pursue the action. CHAIR LEDOUX said she presumes that if the federal government is charging an individual and seizing property initially, that as draconian as Alaska's forfeiture laws are, that probably the federal laws are at least equal if not surpassing Alaska law. She surmised that the bill doesn't do anything with the federal seizure of assets. REPRESENTATIVE WILSON explained that the federal government can still charge but currently there is an agreement that some of the money comes back to the state. In those cases it would not come back to the troopers or any other agency, and is directed to the general fund. The bill would not change [federal] laws or processes in any fashion, she said. 2:14:41 PM REPRESENTATIVE KELLER referred to the offenses subject to forfeiture, on pages 6-7, and asked her to explain the types of crimes being discussed. REPRESENTATIVE WILSON responded that many are mandatory having to do with drinking and driving and she then deferred to Kevin Fitzgerald. REPRESENTATIVE KELLER referred to the outline for the forfeiture process under the bill and asked whether she is saying that it is not currently there, and she included it. He further asked whether other states have clear standards on forfeitures as a model. REPRESENTATIVE WILSON replied yes, and this has come from the states that are rated as "A" or "B" and not "D" as Alaska is. 2:15:57 PM REPRESENTATIVE KELLER advised he likes the bill, but he would like a description of the crimes. REPRESENTATIVE WILSON reiterated that Mr. Fitzgerald could speak to that issue. CHAIR LEDOUX opened invited testimony. 2:16:42 PM KEVIN FITZGERALD, Attorney, said he has been in practice as a prosecutor and a defense attorney for over 27 years, and is in in favor of the bill. He opined that the dual aim of the bill is to put into play standardized and centralized procedures designed to protect the rights of property owners and interested parties while at the same time not undermining the ability of the government to seize or ultimately forfeit property nor to place undue burdens on the court in doing so. He said in the perspective of a practitioner that practices in the areas implicated by the existing forfeiture law, which includes fish and game, Medicaid, and other areas, he is advocating for the bill. In response to the question concerning offenses subject to forfeiture, he advised that they include liquor, assault, property, drugs, and DUIs. He described it as having quite an expansive scope and it's intended to be that way in order to centralize and standardize procedures for any number of different areas that are in some measure disparate, or contrary to each other, and difficult to find. As a practitioner, he said the current law as it addresses forfeiture is broken, confusing, ill understood even by those practicing in these areas, frequently applied in a haphazard or ad hoc fashion, is neither standardized nor centralized, and appears to be a vehicle increasingly used by prosecution to impose sanctions. He reiterated the benefits of this bill as being profound in providing a standardized and centralized process for forfeiture. He then related a case he has of seized property spanning over the course of four years regarding current law and after explaining the details of the case, he commented that this particular case is not unusual and the circumstances and issues raises over the forfeiture law are not unique to that case. He then reiterated that he strongly supports the passage of the bill to give standardize and centralized rules governing Alaska's forfeiture law. 2:27:59 PM REPRESENTATIVE CLAMAN referred to Mr. Fitzgerald's earlier years as a prosecutor and asked his perspective regarding civil forfeiture, whether he ever used it, and in what cases. MR. FITZGERALD explained that it wasn't used often as much as it is now being used, or used for items of significance. Case law does reference occasional cases in which airplanes had been seized, but he estimated that the forfeiture law is being used as a tool more frequently to obtain significant items of property. He opined that when it was used when he was a prosecutor it was largely items that would be characterized as contraband and he does not remember any actions pursued pursuant to the forfeiture and what typically now is the avenue used in the fish and game context under AS 16.05.109 or 16.05.195. In answer to the question he reiterated that it is being used more often now. 2:30:10 PM REPRESENTATIVE CLAMAN asked whether, within his current practice, he is in federal court as well as state court. MR. FITZGERALD answered that he is in both courts and the federal arena offers even less protections than Alaska's current forfeiture law. REPRESENTATIVE CLAMAN asked whether he sees a difference in how this is being used in drug cases and the forfeiture of property that may be the benefits of massive drug profits versus fish and game and fish and wildlife forfeiture cases that shut entire businesses down for violations. MR. FITZGERALD remarked that the difference in many instances within the fish and game context occurs on a state level and occasionally it is in the federal level as well, but under the Lacey Act [16 USC 3371-3378] it must be predicated on a violation of state fish and game law. In a drug context, it is not uncommon that the state charges are more focused on individuals and the state side does do co-defendant cases but the federal government, because of its sentencing guidelines, utilizes a lot more conspiracy multi-defendant cases involving 10-30 individuals. In the event an individual is charged with a drug crime at the state level, Mr. Fitzgerald said he doesn't see a lot of attempts at forfeiting property, and typically if the defendant does not play ball with the state authorities the matter is referred to the federal authorities who are happy to help. He remarked that under federal law it can be scary with regard to what is seized, the nexus between the properties seized, and the offense can be extraordinarily de minimis. An individual really has no recourse at all other than under the Eighth Amendment, which is cruel and unusual punishment, and the way that has been defined under federal law is unless the property amounts to twice what the otherwise applicable fine would be, the individual does not have cruel and unusual punishment. Since most of the crimes proceeded in federal court are $500,000 at least fine range such as million dollar plus items such as houses, he explained. 2:35:23 PM JOHN SKIDMORE, Director, Legal Services Section, Criminal Division, Department of Law (DOL), said he has been a prosecutor for the last 18 years, and has not practiced often in the area of drug offense but he supervises the prosecutors within the state. He said he previously expressed to Representative Wilson, and now to the committee, the Department of Law's (DOL) interest and commitment in working on trying to standardize and centralize forfeiture law in Alaska. He agreed that the current forfeiture law is scattered in at least seven different titles and it addresses different types of crimes. He advised that within those seven different titles it describes the procedure or process at varying levels, and the Alaska courts have filled in the procedures or processes that are left vacant in some of the various titles. The result has been a complex system in trying to understand how forfeiture law works, and he agrees that is an issue and that trying to standardize and centralize is an excellent idea. Although, he commented, the issues between that [intent] and this bill are that this bill adds additional processes that may or may not be the intended consequences. For example, he said, in current law a person can forfeit property in a criminal case at a sentencing when there is a preponderance of the evidence that the item is connected to the case and should be forfeited. 2:37:30 PM MR. SKIDMORE explained that HB 317 creates a separate process tracking the criminal process to deal with those forfeitures because it wants the state to file separately against property to be forfeited, hold separate hearings to decide what should happen with the property, and raise the burden of proof from preponderance of the evidence to clear and convincing. He related that those are the sorts of things that resulted in DOL's fiscal note. He agreed that the process would be labor intensive but that doesn't mean it is not possible to standardize and centralize without having some of the requirements, thereby, eliminating the fiscal note. He reiterated that the department is committed to working with folks on those things, but there are important issues to look at which are ultimately policy decisions for the committee to decide. He pointed out that in discussing forfeiture ... 2:39:08 PM REPRESENTATIVE CLAMAN referred to Mr. Skidmore's statement and said that due to the fiscal note it is more than a policy call because it is now about how much money is being dedicated to certain functions of government. 2:39:49 PM REPRESENTATIVE KELLER said the policy here is the Department of Law (DOL) and the state's justice branch of the whole government, and it appears that the things Mr. Skidmore said need to be dealt with are fundamental. He referred to the job not getting done and asked why it takes more money to get it done, why hasn't the committee heard about this before, why aren't things being done right, and how does he attach a price tag to doing things right. He said he realizes that different sections of law were added on but it appears DOL would have come forward with proposed legislation to fix this on its own rather than the legislature trying to build it. He related that part of the reason he is in Mr. Skidmore's face is that time is running out, the session is moving along, and this sounds like a critical item to deal with. 2:41:02 PM MR. SKIDMORE responded that this is an issue the department has been looking at, and pointed out that there is a distinction between forfeiture and seizure that has been somewhat lost in the discussion. For example, when Mr. Fitzgerald discussed the airplane being seized, he said, it was seized pursuant to search warrants in a criminal case. He remarked that he was unaware of that particular case and did not know whether it was evidence seized for purposes of that case, There are legal restrictions on the department regarding its obligation to preserve if it is going to trial under Thorne v. Department of Public Safety, [774 P.2d 1326 (1989)], or if it's strictly about seizure. He referred to a DUI case and driving a vehicle, and said if that vehicle is seized pursuant to a search warrant or incident to arrest, it may be that the vehicle is evidence in the case because the defense may allege the bad driving, observed by the officer, is the result of the vehicle having faulty mechanics. The department is then required to preserve that vehicle so the information can be presented at the time of trial, which has nothing to do with whether or not that vehicle is going to be forfeited at the end of the case. He extended that it may be that it's not going to be forfeited and it is just about using it for evidence, or it may be a case in which the DUI is a felony DUI or something else egregious, and not only was that vehicle needed for evidence but then later was also subject to forfeiture. He explained that it is easy to confuse those two things and he opined the area that needing the most work is returning property that is not needed in the criminal case and should not be subject to forfeiture. He stated that for the past three years while he has been director of the criminal division it has worked on trying to return property to citizens across the state. There are problems of where impound yards of law enforcement agencies have more vehicles than should be there, and that various policies have been instituted and practices to get vehicles returned to people. He opined there is evidence in evidence lockers within law enforcement agencies around that state that are not subject to forfeiture and that property needs to be returned. The law requires a process to be followed in order to get property returned and it should be looked at, which is separate from property seized, ultimately subject to forfeiture, and whether or not that forfeiture is appropriate. He related that [there are provisions] in HB 317 that he is not certain address the seizure problems because it focuses on forfeiture, although there are areas it seems to cross over. He said he views those as two separate issues, and the seizure and returning things is an area to work on and forfeiture needs to be standardized and centralized. The law in Alaska regarding how forfeiture is supposed to work, he opined, is not broken, it is just not in one place that is easy to follow. 2:44:59 PM CHAIR LEDOUX referred to Alaska's forfeiture law and said that sometimes a case can be dismissed against a person and yet the state will continue in an in rem action for forfeiture, not seizure. For example, she said, take a drug case and the person is acquitted, she asked whether the state is ever able to forfeit the property when someone is acquitted. MR. SKIDMORE responded that the vast majority of materials seized should be returned, with the exception of seized cocaine and the department unable to prove its case. CHAIR LEDOUX expressed that she knows the department is not going to give back the cocaine, but what about the house. MR. SKIDMORE said he would change it to a different type of case, such as fish and game, because there are certain types of items in fish and game cases that are also illegal to possess. For example, in most of the state when hunting moose the antlers must be of a certain size and a hunter may have innocently shot a moose that was not legal, it is illegal to possess that animal thereafter. The seized gun in that case would have been returned, but not the moose because it is illegal to possess. Generally, he said, the department does not use civil in rem forfeiture proceedings in criminal cases. He referred to the case Mr. Fitzgerald discussed and although Mr. Fitzgerald said it was not an exception, he disagreed because he does not believe the department is using civil in rem forfeitures in the vast majority of cases other than the example offered. 2:47:30 PM CHAIR LEDOUX asked whether civil in rem forfeitures are being used and further asked whether he was willing to say that the department is prohibited by law, and that the department never does it for something such as, a house, gun, airplane, or a legal item. She expressed that she can't see any justification whatsoever when someone hasn't been convicted of something to seize their legal property. She stressed that if the department can't get the person under criminal law, she finds it repugnant that the department would try to do it through a civil forfeiture proceeding, and she wanted to know whether or not it is used. 2:48:31 PM MR. SKIDMORE answered that the only case he is aware of in which civil forfeiture has been attempted to be used like that is the case Mr. Fitzgerald discussed. Wherein there was a pending prosecution that was expected to result, but hadn't gotten there until much later in the process because the investigation seemed to have taken awhile. Other than that, he said, he is unaware of it being used. He stated that the department does not have a problem eliminating that civil in rem forfeiture, it is not often used because the department doesn't think it should be used often. 2:49:11 PM CHAIR LEDOUX surmised that the only thing the department has a problem with is taking care of the property, and figuring out where it is at a certain time. MR. SKIDMORE said that law enforcement can tell the committee where the seized property is because it is required to track that information. The question asked was how much of that property has been forfeited and he said that is a statistic that DOL has not kept. For example, he could answer how many murder sentences, but could not answer how many of those murder sentences resulted in property being forfeited because he would have to go back and look at each individual judgment to determine which cases had property forfeited. He explained that he doesn't have the ability to track that information currently and does not know the cost, but it would not take eight attorneys. He referred to the eight attorneys in the fiscal note and qualified it is when a separate proceeding is created where the department has to file against the property, then there are court hearings about the property both before the trial and after the trial that are not the trial or the sentencing itself. If the current process is followed wherein items can be seized and subject to forfeiture at the sentencing, he opined that the fiscal note would disappear. 2:50:40 PM CHAIR LEDOUX asked him to repeat how he would make the fiscal note disappear rather than just zeroing it out. MR. SKIDMORE explained that in current law with regard to items that are seized a person has the opportunity to petition to have it bonded out ... CHAIR LEDOUX argued that if it is seized she thought it was seized because it's evidence, so how could a person ever bond out the evidence. She surmised that the department is seizing property that may not be evidence or required to be kept, and that the department seizes property because it believes it will convict the defendant and; therefore, wants to make sure the property the department might want forfeited is there. She expressed that she has a problem with that because the state doesn't get to fine someone before being convicted so why does the department get to take this property if it's not evidence just to make sure it stays around. 2:52:00 PM MR. SKIDMORE explained there are two different reasons for which seizure can occur, simply for evidence that is sometimes forfeited but it is evidence in the case and in those circumstances that property cannot be bonded out. There are also circumstances rarely used in which law enforcement can seize property that would be subject to forfeiture not because it is evidence in the case, but because it would likely be forfeited at the end of the case. He further explained that the reason is that, in the law, it is recognized that with property subject to seizure there are defendants who will frequently attempt to sell, destroy, or somehow change that property from their ownership so it can't be taken later on. CHAIR LEDOUX pointed out that the seizure for this reason is a civil action and, other than a maritime suit which has its own unique rules of law, the property can't be seized. For example, as an attorney, Representative Claman may be 100 percent certain he has a slam dunk winnable case, he still is not allowed to ask the court to seize the property because the defendant may go to Mexico or spend the money. She reminded Mr. Skidmore that Representative Claman must wait until the end of the case and then sometimes the case is not a slam dunk. REPRESENTATIVE CLAMAN said in the background "We know a lot about (indisc.) and they only seize them in federal court." 2:54:15 PM MR. SKIDMORE responded that it is not a civil matter, it's a criminal matter and when people have violated the criminal law authorities are given greater power to take property. That is what the Fourth Amendment of the United State Constitution is about, the search and seizure laws are about. CHAIR LEDOUX argued that if it is a criminal matter why isn't the standard of proof beyond a reasonable doubt when taking property, the same as when imprisoning a person. MR. SKIDMORE explained that there does have to be proof beyond a reasonable doubt that the person committed the crime. He clarified that once it has been proven the person committed the crime with a conviction, in determining the sanctions to be imposed the courts evaluate the evidence on a preponderance of the evidence standard to determine jail time, community work service, fine, probation, probation conditions, and forfeiture. He reiterated that all of those various sanctions, after proving someone committed a crime beyond a reasonable doubt, the courts evaluate those sanctions based on a preponderance of the evidence. 2:55:46 PM REPRESENTATIVE KELLER referred to property being seized, and whether law enforcement or a governmental entity receives any benefit from the seizure such as using it. He explained that he can't help but think about a seized airplane for four years, and being a pilot he knows that is the end of some $30,000-$50,000 engines because they have to be used. He referred to Mr. Skidmore's statement that it is totally up to the authorities when making that determination as to whether the property will likely be forfeited and it can take that into account or not, meanwhile the airplane sits. The state has the responsibility to store property in a dry place, possibly heated. He said he would like to know how many warehouses are available and full of evidence, how long it sits there, and the cost to the state in keeping this evidence. He commented that he saw Mr. Skidmore shaking his head no, and requested confirmed information that seized property is not ever used for the benefit of law enforcement or governmental entities until it is forfeited. 2:57:21 PM MR. SKIDMORE responded that when property is seized prior to any forfeiture order, the state cannot and does not use any property that is seized and the state has an obligation to hold onto the property and safeguard it. He acknowledged that there have been steps in recent years to do precisely what Representative Keller was discussing for a seized airplane and not many airplanes are seized but for those that are, they are stored indoor, the engine is foamed to try to preserve it, and other sorts of things that need to be done in order to preserve that airplane. In the event the airplane is ultimately forfeited, the state would have the opportunity to, in some cases use it, and according to statute give it to the Civil Air Patrol Wing. Other items can be forfeited and used in different ways, and other items are auctioned. He reiterated that prior to the forfeiture order, the state cannot use the property because it does not belong to the state. 2:58:40 PM REPRESENTATIVE CLAMAN asked whether the state currently has the authority to bring a civil action for in rem forfeiture against an airplane allegedly used or connected with criminal activity. MR. SKIDMORE answered in the affirmative, which does exist in statute and is not often used. REPRESENTATIVE CLAMAN surmised that things are seen in the federal reporters such as "United States v. $450,000 in Cash, or United States v. One Cessna 206, or United States v. Some fishing boat that was used in, typically we see these in drug cases," the state still has the authority as a prosecution tool to seize the property and try to forfeit the property to take some drug kingpins ill-gotten gains away even if it doesn't have the evidence to convict him of selling the drugs, MR. SKIDMORE answered that he does know whether he would call it a prosecution tool, but the state does have that authority. 3:00:12 PM REPRESENTATIVE CLAMAN surmised that Mr. Skidmore, speaking on behalf of the state, would have no problem cleaning up the statute with respect to these civil actions against property. Although, Mr. Skidmore would like the continued ability to forfeit property connected with a crime at the end of the criminal case with a conviction, he further surmised. MS. SKIDMORE replied that the description is accurate except when the items are illegal in and of themselves, as he discussed with Chair LeDoux. REPRESENTATIVE CLAMAN offered a hunting scenario wherein a big game guide has an airplane and has successfully flown clients to various areas for many years. The state performs an undercover investigation and discovers the guide is taking folks out but the wrong size game is being taken so there is a fish and game prosecution against the guide. He said the rifles are evidence of the crime but there is nothing in the airplane that is evidence other than the fact that the money he was making involved the airplane. Representative Claman asked why the state would take the airplane for purposes of trying to forfeit the airplane even though it is not needed for evidence at trial, and why the state would go after the airplane and hold it during the entire period of time awaiting trial. 3:02:43 PM MR. SKIDMORE answered that generally the department wouldn't seize the airplane and within this scenario, the only hypothetical circumstance in which seizing the airplane would become justified is whether the guide had a history of committing fish and game violations and that he was primarily getting to the locations to commit those violations through the use of the airplane. He noted that other hypothetical concepts must be added to that scenario before it becomes appropriate, and he would have to know more information about the hypothetical before he could determine the exact crimes and determine whether the state would seek to seize the airplane. He advised that the department could hypothetically attempt to obtain a court order to seize the airplane for purposes of forfeiture, but it generally doesn't do that except in the more serious or egregious cases. REPRESENTATIVE CLAMAN commented that it appears this bill may not perfectly do it, but the idea that the department still has the authority for civil in rem forfeiture actions, is not using it, and it is creating problems is something the legislature should fix. He surmised that the more complicated question about what happens in criminal cases, which appears must be tied into the criminal cases at all times, the department can forfeit after the conviction. He related that he does not like the idea of anyone being able to forfeit property absent the conviction and there have been a tremendous amount of comments about how the federal government and many states are using civil forfeiture where they can't get convictions and that is what the committee is unhappy about. CHAIR LEDOUX expressed that she is definitely unhappy about it. 3:04:46 PM REPRESENTATIVE CLAMAN expressed concern that Representative Wilson's bill may go further and create burdens on the prosecution and costs that may not be appropriate, and stressed his concern about having laws on the books that no one wants enforced and are not enforceable. CHAIR LEDOUX encouraged Mr. Skidmore to work quickly with Representative Wilson because members of the committee believe there is a real problem here and it wants to do something about it. MR. SKIDMORE reiterated that he is committed to continuing to work with Representative Wilson. [HB 317 was held over.]