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california legislation > SB 1261

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SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B

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SB 1261 ( Vargas) 1
As Introduced February 23, 2012
Hearing date: April 10, 2012
Government Code
SM:dl

DEPARTMENT OF JUSTICE: BUREAU OF NARCOTIC ENFORCEMENT AND

ALLOCATING PROCEEDS OF SEIZED ASSETS



HISTORY

Source: Author

Prior Legislation: SB 1866 (Vasconcellos) - (2000) - Vetoed.
AB 114 (Burton) - Ch. 664, Statutes of 1994

Support: California Narcotic Officers' Association; California
Police Chiefs Association

Opposition:American Civil Liberties Union; Legal Services for
Prisoners with Children


KEY ISSUES

SHOULD THE ATTORNEY GENERAL BE REQUIRED TO MAINTAIN A MINIMUM OF
190 BUREAU OF NARCOTIC ENFORCEMENT (BNE) SPECIAL AGENTS AND 90
BUREAU OF INVESTIGATION AND INTELLIGENCE (BII) SPECIAL AGENTS?

SHOULD THE EXISTING APPORTIONMENT OF PROCEEDS FROM ASSET
FORFEITURES RESULTING FROM DRUG CRIMES BE AMENDED TO REDIRECT




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THE 24% THAT CURRENTLY GOES INTO THE GENERAL FUND TO INSTEAD BE
USED FOR THE SOLE PURPOSE OF FUNDING THE EFFORTS OF SPECIAL
AGENTS OF THE DEPARTMENT OF JUSTICE TO INVESTIGATE AND ENFORCE
LAWS RELATING TO NARCOTICS, INCLUDING THE UNIFORM CONTROLLED
SUBSTANCES ACT, AND AS OTHERWISE SPECIFIED?


PURPOSE

The purpose of this bill is to (1) require the Attorney General
to maintain a minimum of 190 Bureau of Narcotic Enforcement
(BNE) special agents and 90 Bureau of Investigation and
Intelligence (BII) special agents; and (2) amend the existing
statute that apportions proceeds from asset forfeitures
resulting from drug crimes to redirect the 24% that currently
goes into the general fund to instead provide that these moneys
would be continuously appropriated and shall be used for the
sole purpose of funding the efforts of special agents of the
Department of Justice (DOJ) to investigate and enforce laws
relating to narcotics, including the Uniform Controlled
Substances Act, and to ensure the Attorney General has
sufficient resources to carry out assigned law enforcement
functions required by law.

Existing law provides that the Attorney General may arrange and
classify the work of the Department of Justice, and consolidate,
abolish, or create divisions, bureaus, branches, sections or
units within the department. Any statutory or other reference to
the Office of the Attorney General, the State Bureau of Criminal
Identification and Investigation, the Division of Narcotic
Enforcement, or the Division of Gambling Control shall be
construed to refer to the division, bureau, branch, section or
unit within the department which is performing the functions
referred to; and no such function shall be abolished without
express statutory authority. (Gov. Code § 15002.5.)

Existing law establishes an asset-forfeiture procedure for
drug-related cases. (Health & Saf. Code §§ 11469-11495.)

Existing law provides that the principal objective of forfeiture




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is law enforcement and that forfeiture shall be conducted with
due process. (Health & Saf. Code § 11469, subd. (a).)

Existing law sets out detailed procedures for a drug forfeiture
action, including: the filing of a petition for forfeiture
within one year of seizure, notice of seizure, publication of
notice, the right to a jury trial, and a motion for return of
property. (Health & Saf. Code § 11488.4.)

Existing law requires a conviction in an underlying criminal
case and provides that the burden of proof in the (civil)
judicial forfeiture action shall be beyond a reasonable doubt.
(Health & Saf. Code § 11488.4, subd. (i)(3).)

Existing law does not require a conviction on an underlying drug
offense where the property sought to be forfeited is cash or
negotiable securities over $25,000, and allows forfeiture upon a
burden of proof of "clear and convincing evidence" under these
circumstances. (Health & Saf. Code § 11488.4, subd. (i)(4).)

Existing law allows for administrative (non-judicial) forfeiture
for cases involving personal property worth $25,000 or less. A
full hearing is required if a claim as to the property is filed,
as specified. (Health & Saf. Code § 11488.4, subd. (j).)

Existing law provides a scheme for the distribution of fund from
forfeitures and seizures. Specifically, after distribution to
any bona fide innocent owners and reimbursement of expenses, 65%
of proceeds go to participating law enforcement agencies, 10% to
the prosecutorial agency, and 24% to the General Fund. (Health
& Saf. Code § 11489.)

Existing law requires the Department of Justice (DOJ) to publish
an annual report detailing specified information on forfeiture
actions. (Health & Saf. Code § 11495, subd. (c).)

This bill would require the Attorney General, to ensure that the
Attorney General has sufficient resources to carry out law
enforcement functions required by law, to maintain minimum
staffing of special agents as follows:




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The Bureau of Narcotic Enforcement shall maintain a
minimum of 190 special agents.
The Bureau of Investigation and Intelligence shall
maintain a minimum of 90 special agents.

This bill would also amend the existing statute that apportions
proceeds from asset forfeitures resulting from drug crimes to
redirect the 24% that currently goes into the general fund to
instead provide that these moneys would be continuously
appropriated and shall be used for the sole purpose of funding
the efforts of special agents of the Department of Justice to
investigate and enforce laws relating to narcotics, including
the Uniform Controlled Substances Act, and to ensure the
Attorney General has sufficient resources to carry out assigned
law enforcement functions required by law.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")

In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a




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content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.

For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.

On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.

On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:




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167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.

This bill does not aggravate the prison overcrowding crisis
described above under ROCA.

COMMENTS

1. Need for This Bill

According to the Author:

The State of California, Department of Justice's law
enforcement components consist of the Division of Law
Enforcement (DLE) and the Division of Criminal Law.
The Division of Law Enforcement is composed of the
Bureau of Firearms, the Bureau of Forensic Services,
the Bureau of Gambling Control, the Bureau of
Investigations and Intelligence and the Bureau of
Narcotics Enforcement. The Division of Criminal Law
is composed of the Bureau of Medi-Cal Fraud and Elder
Abuse.
Unlike the other Bureaus in the Division of Law
Enforcement and the Division of Criminal Law, the
Bureau of Narcotic Enforcement and the Bureau of
Investigation and Intelligence are primarily funded by
the State's general fund. Both BNE and BII provide
critical assistance to California county and local
agencies providing assistance in complex
investigations. Many local detectives receive as many
as 20-30 cases on their desk a day. Complex, time
consuming major investigations create a burden that
increases with the time needed for in depth, large,
multi-jurisdictional investigations. They require
extraordinary assistance that most law enforcement
agencies cannot provide. Previously, BNE and BII




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would have provided this crucial support.

2. FY 2011/2012 Budget Cuts to DOJ and the Effect of This Bill

According to DOJ:

The fiscal year (FY) 10/11 budget for BNE was
$48,284,000 with $36,216,000 allotted from the general
fund. BII's budget was $29,938,000 with $16,148,000
allotted from the general fund. BNE had 163 sworn and
71 non-sworn positions filled. BII had 98 sworn and
101 non-sworn positions filled. Recently, the DOJ's
FY 11/12 budget was reduced by $71 million. The
reduction impacted the general fund programs,
including BNE and BII. The DOJ implemented a
reduction plan, which included layoffs of 62 sworn and
eight non-sworn personnel. The budget cuts also
disbanded the BNE and the BII. The Bureau of
Investigation (BI) was formed by the merger of the BNE
and the BII. Currently, the BI has 119 sworn and 122
non-sworn personnel. The DLE would need to receive
additional funding from the general fund to
reestablish the BNE and the BII.

This bill would mandate that DOJ maintain 190 special agents in
the Bureau of Narcotic Enforcement and another 90 special agents
in BII. However, those bureaus have been disbanded and
reconstituted as the Bureau of Investigations. One question
raised by this bill is whether the proposed funding source, the
24 % of drug asset-forfeiture proceeds that currently go to the
general fund, would be sufficient to reestablish BNE and BII and
fully fund the number of positions mandated in the bill.
According to DOJ, the 24% of these monies distributed to the











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general fund in 2010 amounted to approximately $3,957,644.45.<1>
(California Department of Justice, Asset Forfeiture 2010
Report, http://ag.ca.gov/publications/2010_af/af.pdf.)
Therefore, DOJ concludes that its division of law enforcement
could expect to receive approximately $4-6 million annually by
redirecting the 24% of asset forfeiture proceeds that currently
goes to the general fund to the Attorney General's office, as
proposed in this bill.

WOULD THESE ASSET FORFEITURE PROCEEDS BE SUFFICIENT TO FUND THE
POSITIONS MANDATED BY THE BILL?

3. Separation of Powers

The Legislature mandating that DOJ maintain specified numbers of
specified employees in specified positions could violate the
separation of powers.

The California Constitution divides power equally
among three branches of state government: the
Legislature (Cal. Const., art. IV, § 1); the executive
branch (Cal. Const., art. V, § 1); and the courts
(Cal. Const., art. VI, § 1). Although there is a
certain overlap and interdependence among the three
branches, each is constitutionally vested with certain
"core" or "essential" functions that the others may
not perform. Protection of those core functions is
----------------------
<1> According to the Asset Forfeiture 2010 Report, law
enforcement seized approximately $24,595,337.52 in assets. Of
those assets, approximately $16,490,185.22 was disbursed.
Twenty-four percent of that, approximately $3,957,644.45, was
distributed to the general fund. In 2009, law enforcement
seized approximately $33,279,683.48 in assets. Of those assets,
approximately $28,789,945.18 was disbursed. Approximately
$6,909,586.84 was distributed to the general fund. In 2008, law
enforcement seized approximately $32,718,487.49 in assets. Of
those assets, approximately $25,548,227.54 was disbursed.
Approximately $6,131,574.61 was distributed to the general fund.





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guarded by the separation of powers doctrine and is
embodied in a constitutional provision, which states
that one branch of state government may not exercise
the powers belonging to another branch. (Cal. Const.,
art. III, § 3) The purpose of this doctrine is to
prevent both the concentration of power in a single
branch of government and overreaching by one branch
against another.

(Perez v. Roe 1 (2006) 146 Cal.App.4th 171, 176-177, citations
omitted.)

In 2005, the California Supreme Court held that it was not a
violation of the separation of powers for the Legislature to
appoint members to the Coastal Commission because it did not
"defeat or materially impair the executive branch's exercise of
its constitutional functions." (Marine Forests Society v.
California Coastal Com. (2005) 36 Cal.4th 1, 45.) The Court
elaborated:

We also agree that in applying this standard, it is
appropriate to consider whether the statutes either
(1) improperly intrude upon a core zone of executive
authority, impermissibly impeding the Governor (or
another constitutionally prescribed executive officer)
in the exercise of his or her executive authority or
functions, or (2) retain undue legislative control
over a legislative appointee's executive actions,
compromising the ability of the legislative appointees
to the Coastal Commission (or of the Coastal
Commission as a whole) to perform their executive
functions independently, without legislative coercion
or interference.

(Id.)

Members may wish to consider whether mandating that the Attorney
General must maintain a minimum of 190 special agents in the
(now abolished) Bureau of Narcotic Enforcement and maintain a
minimum of 90 special agents in the (now consolidated) Bureau of




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Investigation and Intelligence " impermissibly impedes the
Attorney General in the exercise of her executive authority or
functions."

DOES THIS VIOLATE THE SEPARATION OF POWERS?

The bill's amendment to Government Code section 15002.5
requiring that DOJ maintain specified levels of staffing of
specified positions within specified bureaus at the Department
also appears inconsistent with the immediately preceding
provisions of the statute which provide that "the Attorney
General may arrange and classify the work of the Department of
Justice, and consolidate, abolish, or create divisions, bureaus,
branches, sections or units within the department."

DOES THIS CREATE A STATUTORY INCONSISTENCY?

4. Drug Assets Forfeiture in California - History and Summary

Existing Assets Forfeiture Law:

California's current Drug Assets Forfeiture provisions were
forged in 1994. The explanatory paragraphs and bullet points
that follow set out the Senate Floor Analysis of AB 114 (Burton)
(Ch. 664, Statutes of 1994), which succinctly summarizes the
measure that was enacted in 1994.

California's drug asset forfeiture provisions were substantially
restructured by AB 4145 (Condit) - Chapter 1032, Statutes of
1986. Assembly Bill 4162 (Katz) - Chapter 1492, Statutes of
1988, again restructured the forfeiture provisions. The
amendments provideİd] a compromise between various groups,
including law enforcement, business interests, civil
libertarians, and others.










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Purpose of forfeiture is law enforcement, not revenue
for seizing agencies or other parties.
Law enforcement may not use seized vehicles, boats,
airplanes, etc.
Knowledge and consent must be proved before property
owned by third parties can be forfeited.
Notice must include claim form and instructions.
Distribution: 65% to law enforcement, 10% to
prosecutors, 24% to the General Fund, and 1% goes to
training of prosecutors and law enforcement officers.
Of the 65% given to law enforcement, 15% shall be used
for anti-gang programs and drug prevention, at the
direction of the county sheriff, designated police chief,
and chief probation officer.
Money deposited in the General Fund shall be used for
school safety programs.
Accounting procedures are required as to assets seized,
not disbursed or how used.

Members may wish to consider whether, redirecting the 24% which,
is currently allocated to the general fund, is consistent with
the compromise reached in AB 114 of 1994.
DOES THIS REPRESENT AN APPROPRIATE DISTRIBUTION OF SEIZED
DRUG-RELATED ASSETS?

DOES THIS VIOLATE THE LEGISLATIVE INTENT OF AB 114 THAT THE
PURPOSE OF FORFEITURE IS LAW ENFORCEMENT, NOT REVENUE FOR
SEIZING AGENCIES?

5. Statement in Support

The California Police Chiefs Association and the California
Narcotic Officers Association state:

Unlike the other Bureaus in the Division of Law
Enforcement and the Division of Criminal Law, the
Bureau of Narcotic Enforcement and the Bureau of
Investigation and Intelligence are primarily funded by
the State's general fund. Both BNE and BII provide




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critical assistance to California county and local
agencies providing assistance in complex
investigations. Many local detectives receive as many
as 20-30 cases on their desk a day. Complex, time
consuming major investigations create a burden that
increases with the time needed for in depth, large,
multi-jurisdictional investigations. They require
extraordinary assistance that most law enforcement
agencies cannot provide. Previously BNE and BII would
have provided this crucial support.


































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As realignment moves responsibility to the local
departments, local law enforcement agencies' need for
the assistance provided by BNE and BII will only
increase. In the past, BNE and BII have provided
local jurisdictions with valuable resources otherwise
not available. This assistance has included:
assistance in serving multi-location arrests of
dangerous suspects and search warrants; gang
investigation using tools such as wiretaps under
anti-gang STEP Act and high tech surveillance
equipment; providing personnel for critical
surveillance or other evidence collection and
analysis; providing specialized expertise, highly
trained/experienced personnel and equipment that can
be moved as needed throughout the state to address the
evolving crime problems of the state. This assistance
is provided at a fraction of the cost compared to the
cost of providing similar resources in each county
jurisdiction. BII and BNE serve as a law enforcement
"special forces team," moving forward to help specific
problems and then moving on to the next assignment.

6. Statement in Opposition

The American Civil Liberties Union states:

Civil drug asset forfeiture laws seriously undermine
property rights, and basic civil liberties. We have
consistently urged that one important reform is that
all proceeds be deposited into the General Fund for
ordinary appropriations to help minimize the incentive
for law enforcement to target people's assets rather
than criminal acts. The National Conference of
Commissioners on Uniform State Laws has made this same
suggestion: "The Uniform Controlled Substance Act
requires that money realized form forfeitures be
deposited in the general operating funds subject to
ordinary appropriations requirements." The
commissioners correctly noted that "giving seizing




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agencies direct financial incentives in forfeiture is
an unsound policy that risks skewing enforcement
priorities."

Diverting the current percentage of funds allocated to
the General Fund and specifically funding certain law
enforcement agents engaging in drug enforcement
distorts policing by providing further incentives to
seize property to maintain drug enforcement budgets,
often at the expense of enforcement of other more
serious crimes.

We urge that any funding for these agents be derived
from other sources. Furthermore we urge reforms to the
underlying allocations and suggest amendments that
direct all existing proceeds go toward public
education or drug treatment, similar to voter
initiatives previously enacted in Oregon and Utah.


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