Bill Text: IA SSB1148 | 2017-2018 | 87th General Assembly | Introduced

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Bill Title: A bill for an act relating to asset forfeiture by prohibiting civil asset forfeiture for property valued at less than a minimum amount, raising the standard of proof for asset forfeiture, prohibiting the transfer of certain seized property to the federal government for forfeiture, requiring a proportionality review for property to be forfeited, and requiring law enforcement agencies to retain certain records related to asset forfeiture and including applicability provisions.

Spectrum: Committee Bill

Status: (N/A - Dead) 2017-02-28 - Subcommittee returns the bill to Committee without recommendation. [SSB1148 Detail]

Download: Iowa-2017-SSB1148-Introduced.html

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Senate Study Bill 1148 - Introduced
SENATE FILE _____
BY (PROPOSED COMMITTEE
ON JUDICIARY BILL BY
CHAIRPERSON ZAUN)
A BILL FOR
An Act relating to asset forfeiture by prohibiting civil
asset forfeiture for property valued at less than a
minimum amount, raising the standard of proof for asset
forfeiture, prohibiting the transfer of certain seized
property to the federal government for forfeiture, requiring
a proportionality review for property to be forfeited, and
requiring law enforcement agencies to retain certain records
related to asset forfeiture and including applicability
provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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Section 1. Section 809A.1, Code 2017, is amended by adding
the following new subsections:
NEW SUBSECTION . 01. “Convicted” or “conviction” includes
a finding of guilt, a plea of guilty, deferred judgment,
deferred or suspended sentence, adjudication of delinquency,
or circumstances where a person is not charged with a criminal
offense that is a serious or aggravated misdemeanor or felony
related to the action for forfeiture based in whole or in part
on the person’s agreement to provide information regarding the
criminal activity of another person.
NEW SUBSECTION . 001. “Instrumentality” means property
otherwise lawful to possess that is used in or intended to be
used in a public offense.
NEW SUBSECTION . 1A. “Minimum civil forfeiture amount” means
fifteen thousand dollars, as adjusted under this subsection.
Beginning January 1, 2019, the minimum civil forfeiture amount
shall be annually increased or decreased by applying the
percentage change in the consumer price index for all urban
consumers for the twelve-month period ending in September of
the prior year published in the federal register by the United
States department of labor, bureau of labor statistics. The
attorney general shall calculate the new amount and publish it
on the attorney general’s internet site, and such calculation
and publication is exempt from the provisions of chapter 17A.
Sec. 2. Section 809A.5, subsection 2, paragraph b, Code
2017, is amended to read as follows:
b. The owner or interest holder is criminally responsible
for the conduct giving rise to its forfeiture , whether or not
the owner or interest holder is prosecuted or convicted . If
the forfeiture is for property valued at less than the minimum
civil forfeiture amount, the owner or interest holder must also
be convicted of the criminal offense for the conduct giving
rise to forfeiture.
Sec. 3. NEW SECTION . 809A.6A Limitation on transfer of
seized property to federal law enforcement.
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A law enforcement agency or prosecuting authority in this
state shall not directly or indirectly transfer or refer any
property seized by the agency or authority to any federal law
enforcement authority or other federal agency for purposes of
forfeiture under federal law unless the value of the seized
property exceeds one hundred thousand dollars, excluding the
potential value of the sale of contraband, or the property is
being transferred or referred for federal criminal forfeiture
proceedings.
Sec. 4. Section 809A.8, subsection 1, paragraph a,
subparagraph (2), Code 2017, is amended to read as follows:
(2) File a judicial forfeiture proceeding within ninety
days after notice of pending forfeiture of property upon which
a proper claim has been timely filed pursuant to section
809A.11 , or, if the value of the property is less than the
minimum civil forfeiture amount, file a judicial forfeiture
proceeding within ninety days after the conclusion of the
criminal prosecution .
Sec. 5. Section 809A.8, subsection 1, paragraph d,
unnumbered paragraph 1, Code 2017, is amended to read as
follows:
If a petition is timely filed, the prosecuting attorney may
delay filing a judicial forfeiture proceeding for one hundred
eighty days after the notice of pending forfeiture, or, if the
value of the property is less than the minimum civil forfeiture
amount, one hundred eighty days after the conclusion of the
criminal prosecution, and the following procedures shall apply:
Sec. 6. Section 809A.12, subsections 6, 7, and 14, Code
2017, are amended to read as follows:
6. A defendant convicted in any whose criminal proceeding
results in a conviction is precluded from later denying the
essential allegations of the criminal offense of which the
defendant was convicted in any proceeding pursuant to this
section . For the purposes of this section , a conviction
results from a verdict or a plea of guilty. A defendant
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whose conviction is overturned on appeal may file a motion to
correct, vacate, or modify a judgment of forfeiture under this
subsection .
7. In any proceeding under this chapter , if a claim is
based on an exemption provided for in this chapter , the
burden of proving the existence of the exemption is on the
claimant. However, once the claimant comes forward with some
evidence supporting the existence of the exemption, the state
prosecuting attorney must provide some evidence to negate the
assertion of the prove by clear and convincing evidence that
the exemption does not apply . The state’s evidence must be
substantial, though not necessarily rising to the level of a
preponderance of the evidence, and more than a simple assertion
of the claimant’s interest in the property. The agency or
political subdivision bringing the forfeiture action shall
pay the reasonable attorney fees and costs, as determined by
the court, incurred by a claimant who prevails on a claim for
exemption in a proceeding under this chapter .
14. An acquittal or dismissal in a criminal proceeding shall
not preclude civil proceedings under this chapter if the value
of the property to be forfeited is equal to or exceeds the
minimum civil forfeiture amount .
Sec. 7. Section 809A.12, Code 2017, is amended by adding the
following new subsection:
NEW SUBSECTION . 7A. The prosecuting attorney must prove
by clear and convincing evidence that the property is property
subject to forfeiture.
Sec. 8. Section 809A.12, subsection 10, paragraph a, Code
2017, is amended to read as follows:
a. The If the property to be forfeited is equal to or
exceeds the minimum civil forfeiture amount, that the person
has engaged in the conduct giving rise to forfeiture. If
the property to be forfeited is less than the minimum civil
forfeiture amount, that the person was convicted for the
conduct giving rise to forfeiture.
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Sec. 9. NEW SECTION . 809A.12A Limitations on civil
forfeiture.
1. If the total value of the property seized for forfeiture
is less than the minimum civil forfeiture amount, a judicial
forfeiture proceeding shall not be brought unless one of the
following applies:
a. The conduct giving rise to forfeiture resulted in a
conviction.
b. The property owner is deceased.
c. Charges have been filed against the property owner, a
warrant was issued for the arrest of the property owner, and
either of the following applies:
(1) The property owner is outside the state and is unable to
be extradited or brought back to the state for prosecution.
(2) Law enforcement has made reasonable efforts to locate
and arrest the property owner, but the property owner has not
been located.
d. The property owner has not claimed the property subject
to forfeiture or asserted any interest in the property at any
time during or after the seizure of the property, and all
claims brought under section 809A.11 have been denied.
2. The prosecuting attorney has the burden to prove by
clear and convincing evidence that the value of the property
is or exceeds the minimum civil forfeiture amount in any civil
action.
Sec. 10. NEW SECTION . 809A.12B Proportionality review.
1. Property shall not be forfeited as an instrumentality
under this chapter to the extent that the amount or value
of the property is disproportionate to the severity of the
offense. The prosecuting attorney shall have the burden to
prove by clear and convincing evidence that the amount or value
of the property subject to forfeiture is proportionate to the
severity of the offense.
2. Contraband and any proceeds obtained from the offense are
not subject to proportionality review under this section.
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3. In determining the severity of the offense for purposes
of forfeiture of an instrumentality, the court shall consider
all relevant factors including but not limited to the
following:
a. The seriousness of the offense and its impact on the
community, including the duration of the activity and the harm
caused or intended by the person whose property is subject to
forfeiture.
b. The extent to which the person whose property is subject
to forfeiture participated in the offense.
c. Whether the offense was completed or attempted.
d. The extent to which the property was used in committing
the offense.
e. The sentence imposed for committing the offense that is
the basis of the forfeiture, if applicable.
4. In determining the value of the property that is an
instrumentality and that is subject to forfeiture, the court
shall consider relevant factors including but not limited to
the following:
a. The fair market value of the property.
b. The value of the property to the person whose property
is subject to forfeiture, including hardship to the person
or to innocent persons if the property were forfeited. The
burden shall be on the person whose property is subject to
forfeiture to show the value of the property to that person and
any hardship to that person.
Sec. 11. Section 809A.13, subsections 7 and 8, Code 2017,
are amended to read as follows:
7. The forfeiture hearing shall be held without a jury
and within sixty days after service of the complaint unless
continued for good cause. The prosecuting attorney shall
have the initial burden of proving by clear and convincing
evidence that the property is subject to forfeiture by a
preponderance of the evidence . If the state so proves the
property is subject to forfeiture, the claimant has the burden
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of proving may assert that the claimant has an interest in the
property which is exempt from forfeiture under this chapter by
a preponderance of the evidence . If the claimant asserts the
existence of the exemption, the prosecuting attorney has the
burden of proving by clear and convincing evidence that the
exemption does not apply.
8. The court shall order the interest in the property
returned or conveyed to the claimant if the prosecuting
attorney fails to meet the state’s burden or the claimant
establishes by a preponderance of the evidence that the
claimant has an interest that is exempt from forfeiture . The
court shall order all other property forfeited to the state and
conduct further proceedings pursuant to sections 809A.16 and
809A.17 .
Sec. 12. Section 809A.14, subsection 7, paragraph d, Code
2017, is amended to read as follows:
d. In accordance with the findings made at the hearing, the
court may amend the order of forfeiture if it determines that
any claimant has established by a preponderance of the evidence
that the claimant has properly petitioned for recognition
of exemption under section 809A.11 and that the prosecuting
attorney has not shown, by clear and convincing evidence, that
the claimant does not have an interest in the property which is
exempt under the provisions of section 809A.5 .
Sec. 13. Section 809A.15, subsection 1, unnumbered
paragraph 1, Code 2017, is amended to read as follows:
The court shall order the forfeiture of any other property
of a person, including a claimant, up to the value of
that person’s property found by the court to be subject to
forfeiture under this chapter , if the prosecuting attorney
proves by clear and convincing evidence that any of the
following applies to the person’s forfeitable property:
Sec. 14. Section 809A.16, subsection 2, Code 2017, is
amended to read as follows:
2. Within one hundred eighty days of the date of a
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declaration of forfeiture, an owner or interest holder in
property declared forfeited pursuant to subsection 1 may
petition the court to have the declaration of forfeiture set
aside, after making a prima facie showing that the state failed
to serve proper notice as provided by section 809A.13 . Upon
such a showing the court shall allow the state to demonstrate
by a preponderance of the clear and convincing evidence that
notice was properly served. If the state fails to meet
its burden of proof, the court may order the declaration of
forfeiture set aside. The state may proceed with judicial
proceedings pursuant to this chapter .
Sec. 15. NEW SECTION . 809A.18A Recordkeeping.
1. Each law enforcement agency that has custody of any
property that is subject to this chapter shall adopt and comply
with a written internal control policy that does all of the
following:
a. Provides for keeping detailed records as to the amount
of property acquired by the agency and the date property was
acquired.
b. Provides for keeping detailed records of the disposition
of the property, which shall include but not be limited to all
of the following:
(1) The manner in which the property was disposed, the
date of disposition, detailed financial records concerning
any property sold, and the name of any person who received
the property. The record shall not identify or enable
identification of the individual officer who seized any item
of property.
(2) An itemized list of the specific expenditures made
with amounts that are gained from the sale of the property and
that are retained by the agency, including the specific amount
expended on each expenditure, except that the policy shall
not provide for or permit the identification of any specific
expenditure that is made in an ongoing investigation.
2. The records kept under the internal control policy
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shall be open to public inspection during the agency’s regular
business hours. The policy adopted under this section is a
public record open for inspection under chapter 22.
Sec. 16. APPLICABILITY. This Act applies to forfeiture
proceedings that begin on or after the effective date of this
Act.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
This bill relates to asset forfeiture and includes a
prohibition on civil asset forfeiture for property valued at
less than a minimum amount, increases the standard of proof
required for asset forfeiture to clear and convincing evidence,
prohibits the transfer of seized property to the federal
government for forfeiture for property valued at less than a
minimum amount, requires a proportionality review with regard
to property to be forfeited, and requires law enforcement
agencies to retain certain records related to asset forfeiture.
CIVIL ASSET FORFEITURE. Asset forfeiture is a process by
which contraband and proceeds or instrumentalities related
to criminal activity may be seized by the state and sold.
Under current law, conduct giving rise to forfeiture is an
act or omission which is a public offense that is a serious
or aggravated misdemeanor or felony. However, forfeiture
proceedings are not precluded if the state fails to convict,
indict, or charge the person whose conduct gave rise to
forfeiture.
Under the bill, asset forfeiture for property valued at less
than $15,000 is prohibited unless the conduct giving rise to
forfeiture resulted in a conviction, the property owner is
deceased, charges were filed and an arrest warrant was issued
but law enforcement is not able to execute the arrest due to
the property owner being out of state or not locatable, or
the property owner has not claimed the property subject to
forfeiture or asserted any interest in the property.
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“Conviction” is defined to include a finding of guilt, a plea
of guilty, deferred judgment, deferred or suspended sentence,
adjudication of delinquency, or circumstances where a person
is not charged with a criminal offense that is a serious or
aggravated misdemeanor or felony related to the action for
forfeiture based in whole or in part on the person’s agreement
to provide information regarding the criminal activity of
another person.
The bill provides that the minimum threshold of $15,000 is
to be annually increased or decreased in accordance with the
consumer price index.
BURDEN OF PROOF. Under current law, a prosecuting attorney
must prove by a preponderance of the evidence that property is
subject to forfeiture and that the defendant’s conduct gave
rise to forfeiture. The bill provides that the prosecuting
attorney must prove these elements by clear and convincing
evidence.
Under current law, if a property claimant comes forward with
some evidence supporting the existence of an exemption for
forfeiture, the state must provide some evidence to negate the
assertion, which must be substantial, though may be less than
a preponderance of the evidence. The bill provides that if a
claimant asserts the existence of an exemption, the prosecuting
attorney has the burden of proving by clear and convincing
evidence that the exemption does not apply.
Under current law, a presumption arises that property of a
person is subject to forfeiture if the state establishes that
the person has engaged in conduct giving rise to forfeiture.
The bill provides that if the property to be forfeited is less
than the minimum civil forfeiture amount, such a presumption
only arises if the person was convicted for the conduct giving
rise to forfeiture.
Under current law, a court may order the forfeiture of
substitute assets if the forfeitable property cannot be
located; has been transferred or conveyed to, sold to, or
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deposited with a third party; is beyond the jurisdiction of
the court; has been substantially diminished in value while
not in the actual physical custody of the court, the seizing
agency, the prosecuting attorney, or their designee; has been
commingled with other property that cannot be divided without
difficulty; or is subject to any interest of another person
which is exempt from forfeiture under Code chapter 809A. The
bill requires the prosecuting attorney to prove one of the
above conditions of the property by clear and convincing
evidence.
EQUITABLE SHARING. Under current law, there is no
limitation on a law enforcement agency or prosecuting authority
with regard to the transfer of seized property to a federal
law enforcement agency or authority, a process referred to as
equitable sharing. Under equitable sharing, property seized
by state authorities is transferred to federal authorities for
forfeiture, and the state and federal authorities then share
the proceeds. The bill provides that a state law enforcement
agency or prosecuting authority shall not participate in
equitable sharing unless the value of the seized property
exceeds $100,000 or the property is being transferred or
referred for federal criminal forfeiture proceedings.
PROPORTIONALITY REVIEW. Under current Code chapter 809A,
there is no requirement that the value of an instrumentality
forfeited be proportionate to the crime committed, though
the Iowa supreme court has held that forfeiture can be
unconstitutional under the Eighth Amendment’s prohibition on
excessive fines if the defendant can show that the value of
the property is grossly disproportionate to the crime. The
bill provides that property shall not be forfeited as an
instrumentality to the extent that the amount or value of the
property is disproportionate to the severity of the offense
and that the prosecuting attorney has the burden of showing
proportionality by clear and convincing evidence. Contraband
and proceeds are not subject to proportionality review.
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RECORDKEEPING. The bill provides that each law enforcement
agency that has custody of any property that is subject to Code
chapter 809A shall adopt and comply with a written internal
control policy that provides for keeping detailed records as
to the amount of property acquired by the agency, the date
property was acquired, and the disposition of the property,
including the manner in which it was disposed, the date of
disposition, detailed financial records concerning any property
sold, and the name of any person who received the property.
The records kept under the internal control policy shall be
open to public inspection during the agency’s regular business
hours, and the adopted policy is a public record open for
inspection under Code chapter 22.
The bill applies to forfeiture proceedings that begin on or
after the effective date of the bill.
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