Legislature(1993 - 1994)
04/12/1993 01:00 PM House JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 188: FORFEITURE OF CERTAIN PROPERTY Number 028 MARGOT KNUTH, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW (DOL), stated that HB 188 would amend the state's forfeiture laws, which were used almost exclusively in felony drug cases. She commented that existing forfeiture laws were difficult to use, causing the state to rely on the federal government to handle forfeiture cases. She noted that the federal government charged the state a 15% fee for providing that service. She stated that often in drug cases, a defendant thought beforehand about whether the benefits of the crime outweighed the potential costs. MS. KNUTH said that the DOL felt if it could take the profit out of drug crimes, it would be more effective in deterring those crimes. She said further that HB 188 permitted the forfeiture of real property, including buildings, in addition to other types of property. Additionally, it allowed for the tracing of funds to permit forfeiture of any property which was purchased with the proceeds of drug sales. House Bill 188 would also permit the sharing of assets between the state and municipal police departments, she said. MS. KNUTH added that the bill also made a number of technical changes to the state's forfeiture laws, in response to some court rulings. REPRESENTATIVE JOE GREEN mentioned concerns that HB 188 would increase the chance of an innocent bystander having his or her property confiscated. Number 124 MS. KNUTH replied that HB 188 did a good job of safeguarding innocent property owners. She stated that part of the confusion might stem from the fact that a protection provision was deleted from one section of the bill and reinserted into another section. She mentioned another provision in the bill which stated that there was a "prima facie" case for forfeiture, if there had been an indictment. She mentioned concerns that an indictment was an early phase in a court proceeding, and hence forfeiture at that stage might be premature. MS. KNUTH stressed that the prima facie showing was completely rebuttable, as it only stated that there was at least probable cause to believe that certain property was owned by a drug offender. Property was not automatically forfeited upon an indictment, she noted. Number 165 REPRESENTATIVE JEANNETTE JAMES stated that it would be easy to find out who owned property that was subject to forfeiture. It appeared to her that HB 188 would force an owner to prove that he or she did not have any knowledge that drug activity was occurring. She wondered if the burden of proof should not be reversed. Number 187 MS. KNUTH replied that the burden of proof initially was upon the government. After the government made its showing, she said, a person could dispute that showing. Number 212 LIEUTENANT PAUL HARRIS, from the ALASKA STATE TROOPERS' STATEWIDE DRUG ENFORCEMENT UNIT, said that HB 188 would provide law enforcement with a powerful tool for going after drug traffickers. He said that the bill represented an improvement over existing law, as it covered many areas which were left out of the old forfeiture laws. He commented that HB 188 provided protection for innocent parties. LT. HARRIS mentioned that HB 188 would allow the state to go after property in which people had hidden illegal profits, including money, real estate, and weapons. He approved of the bill's provision which allowed forfeited property to be shared by the state and local police forces, as proceeds from the sale of seized property could be used for additional drug law enforcement efforts. Number 287 CHRISTINE SCHLEUSS, representing the ALASKA ACADEMY OF TRIAL LAWYERS and the ALASKA ACTION TRUST, testified via telephone from Anchorage. She shared the belief that drug dealers should not be able to keep property which was purchased with the proceeds from drug sales. However, she said that her organization felt that HB 188 would pose a risk to innocent property-owners who had no connection to drug sales that occurred on their property. The bill would require innocent property-owners to either undergo a tremendously expensive process to get their property back or not get their property back at all. MS. SCHLEUSS suggested that HB 188 be amended so that it did not pose a risk to innocent persons, but instead focused its efforts on those who were truly involved in drug trafficking. She mentioned a "60 Minutes" television program about federal forfeiture laws, which she said were narrower than those proposed in HB 188. The "60 Minutes" program portrayed several apparently innocent parties who had had sizable assets seized by the federal government wielding its forfeiture law. She urged the committee members to view the "60 Minutes" program, in order to understand the harm that could result from a well- intentioned bill like HB 188. MS. SCHLEUSS likened HB 188 to a "zero tolerance" law. She reminded the committee what had happened several years ago when the federal government had used its forfeiture laws to implement a zero tolerance drug policy, which had devastating effects on the fishing industry. She said that HB 188, as written, did not require proof beyond a reasonable doubt of anyone's guilt, much less the guilt of the property owner. She cited an example of a child who lived with his or her parents, and who possessed or sold drugs in the home. She said that under HB 188, innocent parents could find themselves losing their homes. MS. SCHLEUSS commented that fishing boat owners, who did not know that crew members possessed or sold drugs, could lose their boats and therefore their livelihoods. She expressed her opinion that HB 188 went too far. She stated that the bill held that the government only had to prove, by 51% of the evidence, that property was connected to drug activity, either as a place where a drug deal took place, or was purchased with the proceeds from drug sales. She said that in order for an owner to recover forfeited property, he or she had to convince a court that he or she did not know about the drug activity. MS. SCHLEUSS commented that it was very difficult for a person to prove a negative. She suggested that the committee amend HB 188 so that it applied only to individuals convicted of drug offenses. In order for the law to be applied to property beyond that of convicted drug dealers, she recommended that, before property was seized, the government should have to prove by at least clear and convincing evidence, that the owners were aware of and approved of the use of their property for illegal purposes. MS. SCHLEUSS expressed her opinion that HB 188, as currently written, imposed an unfair burden of proof on the property- owners. She commented that the bill's provision that forfeited property be turned over to law enforcement agencies was an unfortunate aspect of HB 188. She suggested instead turning the property over to drug rehabilitation programs. She noted that when law enforcement agencies received the forfeited property, there was a built-in incentive for law enforcement to overstep its bounds. Number 475 REPRESENTATIVE JIM NORDLUND asked if Ms. Schleuss had any proposed language to offer. MS. SCHLEUSS did not have any proposed language to offer at this time; however, she added that she could prepare some by the end of the week. Number 496 REPRESENTATIVE NORDLUND mentioned that he had seen the "60 Minutes" episode to which Ms. Schleuss referred. He asked the Chairman if he intended to move HB 188 out of committee today. Number 499 CHAIRMAN BRIAN PORTER stated that he would go along with the committee's desire. Number 503 REPRESENTATIVE NORDLUND asked if Ms. Schleuss could prepare amendment language by Wednesday, at which time the committee could also view the "60 Minutes" episode. Number 511 CHAIRMAN PORTER expressed concerns about the factuality of a "60 Minutes" program presentation. He asked Ms. Schleuss about the standard of proof required in property-dispute matters brought before the court, and asked if HB 188's standard of proof was not the same. Number 525 MS. SCHLEUSS responded that the standard of proof could vary in civil cases. Sometimes, she said, the standard was "a preponderance of evidence," while other times it was "clear and convincing evidence." She said that the standard of proof in civil cases was not "proof beyond a reasonable doubt." She added that in civil cases, property was never taken from an owner without a hearing. Number 548 MS. KNUTH mentioned that a sentence on page 3, lines 18 and 19, of HB 188 should be deleted, as notice provisions were already covered in existing statute. Number 561 REPRESENTATIVE JAMES asked if, at the time of arrest, a lien would be placed on a piece of real estate where a drug offense was thought to have taken place. She asked at what point the property would be in jeopardy. Number 570 MS. KNUTH replied that the state would need to initiate a forfeiture proceeding first, by providing notice of what property could be subject to seizure, and the connection that the state would attempt to prove between the property and the offense. She stated that if the hearing on HB 188 was to be continued another day, her colleague, Mr. Dean Guaneli could more adequately speak to the effects of the bill. Number 596 REPRESENTATIVE JAMES was concerned that if a person had committed a drug offense and his or her property was subject to forfeiture, a notice could protect the state from a situation in which the offender disposed of the property before it could be forfeited. Conversely, she did not wish to inhibit innocent property-owners from acting to protect their interests. She stressed the need for a balanced approach. Number 613 CHAIRMAN PORTER asked Ms. Knuth to share the committee's concerns with Mr. Guaneli, so that he might address them at the next hearing on HB 188 on the following Wednesday. He said that the "60 Minutes" tape would be shown at 12:45 p.m. on Wednesday in the committee room. Number 630 REPRESENTATIVE PETE KOTT MOVED an AMENDMENT DELETING the sentence on page 3, lines 18-19, as proposed by Ms. Knuth. There being no objection, the AMENDMENT WAS ADOPTED. Number 644 MS. SCHLEUSS indicated that she would send amendment language to Representative Nordlund for the committee's consideration. CHAIRMAN PORTER announced that the committee would take up HB 71 next.