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Bolkcom offers bill to deal with criminal asset forfeiture

Criminal Asset ForfeitureBy Bob Eschliman
Editor

 

A bill offered by state Sen. Joe Bolkcom (D-Iowa City) would amend Iowa Code as it relates to the process by which contraband and “proceeds or instrumentalities related to criminal activity” may be seized by the state and later sold.

Critics call criminal asset forfeiture “policing for profit.” It is covered by Iowa Code 809A, which Senate File 467 would repeal and replace with a new section, 809B, which would provide that property is not subject to forfeiture until a person has been convicted of an offense for which forfeiture is expressly authorized as a penalty.

Under current law, forfeiture proceedings are generally governed by the rules of civil procedure. The bill would provide that forfeiture proceedings are governed by the rules of criminal procedure.

Under Iowa Code 809A, forfeited cash and property that may be sold is distributed among the seizing agency, county attorneys, and the Iowa Department of Justice. SF 467, however, would require that sold property or forfeited cash be first used to satisfy any restitution orders for victims of the underlying offense, second to pay any liabilities the state owes to defendants or claimants who substantially prevail in forfeiture proceedings, and third, if in the custody of the Attorney General, to the state’s General Fund, or if in the custody of a county attorney, to the county’s General Fund.

The bill requires every county to provide an audit of forfeited property to the Attorney General by Sept. 30 each year, beginning with the calendar year starting on Oct. 1 of the year the bill is enacted.

SF 467 also establishes requirements for the use of property held in custody, use of cash or proceeds, and the distribution of property among law enforcement. It also provides “taxpayer standing” for any alleged violations of the provisions of the bill, meaning any taxpayer in the state has legal standing to challenge any action contrary to those provisions.

The bill provides that forfeiture proceedings shall be tried in the same proceeding as the criminal case unless the defendant requests that they be separated. Currently, forfeiture proceedings are held without a jury; the proposed legislation gives the defendant the right to trial by jury regarding forfeiture.

SF 467 also requires that a court will ensure that a forfeiture is not “grossly disproportional” to the gravity of the underlying offense. The state must prove proportionality by “clear and convincing evidence.”

Seized property may not be transferred to the federal government without a court order, under the proposed legislation. The bill also requires property, money, or other things of value received from the federal government pursuant to federal law be transferred to the Treasurer of State.