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Tuesday, July 25, 2017

Adoptive Forefeiture Is Back

civil forfeiture
“No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.” —5th Amendment—

One step forward, two steps back is one way to describe the asset or civil forfeiture in the United States. We have written about this topic on more than one occasion, as it has been shown to disproportionately affect minorities in order to fill both state and federal law enforcement coffers. Over the last couple years, the subject of asset forfeiture has gained national attention, becoming feature stories by prime-time news outlets.

The practice, essentially allows state and federal government to seize an individual's property without having to actually convict someone of a crime. In theory, one’s property would be returned if a guilty verdict is not achieved. But in many cases, the crime that a person is suspected of won't even go before a court. Case in point: I am pulled over carrying a few thousand dollars cash that I just received for selling a vehicle. An officer asks where I got the money, and I explain. The officer says that if I want my money back, I must go before a judge and prove it.

As you can imagine, pleading my hypothetical case would involve hiring an attorney. Which can be quite expensive. Possibly more than the amount of money seized. Which is why a significant number of people whose assets or property are seized will not even fight their cases, literally forfeiting their possessions to the government. This kind of scenario plays out every day in the U.S.

 

Changing the Laws


A number of state lawmakers have come to see that the process of civil forfeiture unjustly affects certain individuals, and violates the Fifth Amendment of the Constitution. In California, for instance, Senate Bill 443 was passed and went into effect in January. Changing state law such that assets valued at less than $40,000 could only be seized after a criminal conviction. Other states have passed similar measures.

SB 443 basically made it so that asset forfeiture would be more likely to affect people who were involved in serious crimes, like drug trafficking and such. Not innocent bystanders who hardly stand a chance of ever seeing their money again. One of the other caveats of SB 443 was state law enforcement agencies could no longer team up with federal agencies in order to skirt state laws civil forfeiture protections. What is known as "adoptive forfeiture."

Local police departments could skirt state forfeiture laws by partnering with federal agencies, even if a there is never a charge or conviction. State governments and the Federal agencies would then both get a piece of the stolen pie. Former Attorney General Eric Holder ended the adoptive forfeiture program in 2015, The Washington Post reports. Which was hailed as a victory by rights activists.

“With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” said Attorney General Holder. “This is the first step in a comprehensive review that we have launched of the federal asset forfeiture program. Asset forfeiture remains a critical law enforcement tool when used appropriately – providing unique means to go after criminal and even terrorist organizations. This new policy will ensure that these authorities can continue to be used to take the profit out of crime and return assets to victims, while safeguarding civil liberties.”

 

Adoptive Forfeiture is Back


Last week, the Department of Justice (DOJ) announced it will be bringing back the federal asset forfeiture program, according to the article. The DOJ stated new guidelines about when law enforcement officials can seize assets valued at less than $10,000 and how quickly property owners need to be informed of the seizures. Because of this, state enforcement agencies have a new incentive skirt their own state reforms, like SB 443.

If you believe that your assets were seized unjustly, please contact the Law Office of Ronald G. Brower.

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Tuesday, July 18, 2017

Equity and Justice Reform Package

If you are arrested and cannot afford an attorney, one will be appointed for you. It may sound as if you are impoverished, then you are entitled to a defense, gratis. That is not what that means. In fact, those who are represented by a public defender are required to pay back the costs of the defense. You might be thinking that it doesn’t make sense. If a person could not afford to hire a private attorney, how could they be expected to pay back the costs of services rendered after the fact?

 

Equity and Justice


Regarding this subject, some changes are on the horizon. Governor Jerry Brown signed Senate Bill 355: Reimbursement for Court-Appointed Counsel into law, recently, The Los Angeles Sentinel reports. Which means that those represented by public defenders will only be required to reimburse for such services, if they are found guilty. Innocents are now exempt.

“Under current criminal law, a low-income, homeless or impoverished person who is accused of a crime that they did not commit can still be ordered to pay the costs of a court-appointed attorney,” said Sen. Holly J. Mitchell of Los Angeles, co-author of the bill. “We are pleased to have the governor support our #EquityAndJustice reforms. We are hopeful that he will continue to be a partner as the remaining #EquityAndJustice bills make their way to his desk.

“Together we can bring compassion, reason and greater social awareness about the true costs of a criminal justice system that for too long has followed policies that created and perpetuated a cradle-to-grave prison pipeline.”

 

Reform Package


Sen. Mitchell’s bill is one of a number of pending bills that fall under the California Equity and Justice reform package, according to the article. The other bills still pending in the Assembly Public Safety Committee, include:
  • SB 180 (Drug Sentence Enhancements): a step toward ending wasteful incarceration spending involving certain nonviolent drug offenses.
  • SB 190 (Ending Juvenile Fees): eliminates administrative fees for youth involved in the juvenile justice system and their families.
  • SB 393 (Sealing of Arrest Records): seals arrest records of those arrested but not convicted.
  • SB 394 (Juveniles Life Without the Possibility of Parole): juveniles cannot be sentenced to Life Without Parole.
  • SB 395 (Miranda Rights for Youth): require those under the age of 18 to consult with legal counsel before they waive their constitutional rights in interrogations with police.

 

Need Legal Assistance


Please contact the Law Office of Ronald G. Brower if you have been charged with a crime. For more than 30 years, attorney Brower has been successfully representing defendants in Southern California. He can provide you, or a loved one, with a solid legal defense.

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Wednesday, July 12, 2017

Proposition 66: A Court Divided

prop 66
What is the appropriate punishment for murder in the United States? For the citizens of some states, including California, the answer to that question is the death penalty. An eye for an eye, at least in the biblical sense. The death penalty question has been hotly contested in the United States for time immemorial, but in other western countries (for the most part) it is no longer a question—it’s been abolished. In fact, in Europe the death penalty for peacetime crimes has been done away with in every country except Belarus as of 2017.

Yet for a number of reasons, the death penalty remains intact in the U.S. More than half of the country still has the death penalty. As of 2016, the death penalty is legal in 32 states and illegal in 18 states (and DC). To be sure, the ethics and morality of taking a life for a crime could be covered at length. However, as long as the citizens of California deem it necessary, the conversation should pivot towards the manner in which the process is carried out. Whether that is the method, or as we have seen of late, the amount of time a person remains on death row after conviction.

 

Proposition 66


Californians voted on a number of items last November, arguably the most important being the President. But going to the polls is about much more than electing leaders. Equally paramount are the laws that are passed. In addition to voting in favor of legalizing marijuana for adult consumption (Prop. 64), Californians voted on ending or amending the death penalty. Voters chose to amend in favor of Proposition 66. Essentially, Prop. 66:
  • Kept capital punishment in place.
  • Changes the death penalty procedures to speed up the appeals process by putting trial courts in charge of initial petitions challenging death penalty convictions, establishing a time frame for death penalty review, and requiring appointed attorneys to work on death penalty cases.
  • Stipulates that all effects would occur once Proposition 66 is enacted and authorizes death row inmate transfers among California prisons.
  • Would require prisoners on death row to work while in prison and pay restitution to victims' families. The portion of wages to be provided as restitution would be 70 percent or the restitution fine, whichever is less.
  • Stipulates that other death penalty measures approved would be void in the event that more affirmative votes are given for Proposition 66.
  • Remove public review requirements for the state’s lethal injection procedures.

 

A Court Divided


Following the law’s passing, an opponent sued to block the measure arguing that Prop. 66 usurped the power of the judicial branch to run the courts, The Los Angeles Times reports. A number of the California Supreme Court Justices believe that the law's five-year deadlines for resolving death penalty appeals could not be met. Proponents of the bill responded saying that the 5-year limit was a target, not a mandate. To which “So it is a mandatory deadline that is toothless?” asked Justice Leondra Kruger asked:

“So it is a mandatory deadline that is toothless?”

If you are confused about what Prop. 66 is trying to accomplish, you are not alone. But, it seems that the law's proponents are looking to address the death row backlog, according to the article. It has been 11-years since the last execution and California has more than 750 condemned inmates. A decision is due within the next 90 days.

The Law Office of Ronald G. Brower has decades of experience in homicide defense. We can help you or a loved one with quality representation.

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Wednesday, July 5, 2017

Proposition 63: Surrendering Gun Magazines

proposition 63
Last November, Californians voted on a number of important pieces of legislation, many of which passed. But while many throughout the state have been focused on Proposition 64, which legalized marijuana for adult recreational use, there were a few other important measures that passed which gained far less attention. One such bill was Proposition 63, which banned the ownership of gun magazines that hold more than 10 ammunition rounds and requires background checks for buying ammunition.

By and large, California is a progressive state and, as such, has a reputation for being so. To be sure, coastal California are bastions of liberalism, rural parts of the state our quite the opposite. And as you can probably imagine, Prop. 63 did not receive much support in those necks of the woods.

July 1, 2017, marked the deadline for those owning (with very few exceptions) high-volume firearm magazines to dispose of them. Being caught with such magazines could carry jail-time, but there are some concerns that few California gun owners will comply.

 

Armed Resistance


With some 6 million legal gun owners across the state, it is probably safe to bet that not everyone is going to comply with a law that is not easy to enforce. It is not as if authorities are going to conduct property searches looking for such ammunition. Additionally, many gun owners take a “don’t tread on me" approach to their gun rights, so the likelihood of people driving down to their local police station to surrender their magazines is undoubtedly, slim.

Shasta County Sheriff Tom Bosenko says that not a single gun owner in the county has surrendered one, The Sacramento Bee reports. And he has no intention of ordering his deputies to hunt for magazines that can hold over 10 rounds. “We’re not going to be knocking on anybody’s door looking for them,” Bosenko said. “We’re essentially making law-abiding citizens into criminals with this new law.”

For those gun owners who wish to abide by the law, you have a few options, including:
  • Moving them out of state.
  • Surrendering them into law enforcement.
  • Selling them to a licensed dealer
  • Destroying the magazines.

 

Does Magazine Size Matter


A supporter of Proposition 63, Ari Freilich (staff attorney for the Law Center to Prevent Gun Violence), argues that high-volume magazines have been linked to both mass-shootings and those who wish to attack law enforcement. “They do not have legitimate self-defense value.”

On the other side, however, Chuck Michel, a gun-rights attorney in Long Beach, writes:

“The reason for the popularity of these magazines is straightforward: In a confrontation with a violent attacker, having enough ammunition can be the difference between life and death. Banning magazines over ten rounds is no more likely to reduce criminal abuse of guns than banning high horsepower engines is likely to reduce criminal abuse of automobiles.”

Federal Judge Temporarily Blocks Proposition 63


According to the Los Angeles Times, a federal judge issued a preliminary injunction for enforcement of Proposition 63, on June 29, 2017. You can read the full article here.  We will continue to follow this story line.
 
If you have been charged with a crime involving a firearm, please contact Attorney Ronald G. Brower.

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