Legislature(1993 - 1994)

04/12/1993 01:00 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  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.                                                                  
                                                                               

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