Police, prosecutors oppose proposed bill changing asset forfeiture for low-level drug crimes

Trooper Brian Eby traffic stop

Between July 2019 and June 2020, Nevada police reported seizing more than $4 million worth of personal property, ultimately holding on to more than $3 million worth of cash, vehicles and jewelry involved in criminal activity.

Law enforcement agencies do this through a process called civil asset forfeiture, in which police take possession of ill-gotten money or property that may have been involved in a crime. The idea is to thwart criminal organizations and help fund police activity, but a broad range of interest groups have expressed concern in past years that the system easily leads to abuse and the inappropriate taking of property from people not directly involved with criminal activity.

The complex and emotional subject returned to the Legislature on Monday during a hearing on AB425, a bill heard in the Assembly Judiciary Committee that aims to add additional protections and limits on police use of property seizure and forfeiture as it relates to low-level drug crimes.

The bill was presented by criminal defense attorney Lisa Rasmussen, who characterized the bill as a modest, targeted tweak to the existing set of rules on asset forfeiture for low-level drug crimes. 

“What this does is just simplifies the procedure for these small level seizures and forfeitures, and it puts it all in one place where it's much easier and it saves everybody money,” she said. “It saves the state money, it saves law enforcement money, and more money at the end of the day goes to the general fund than is currently happening on the small level seizures and forfeitures.”

But the hearing on the bill nonetheless drew familiar battle lines: criminal justice reform advocates (ranging from public defenders to the ACLU of Nevada to libertarian groups) in favor, and police and prosecutors opposed. 

“The process works very well as it is,” Las Vegas Metropolitan Police Department attorney Matthew Christian said. “It's already a very streamlined process. And despite some of the testimony that the members of the committee have heard today, it really isn't complex.”

Essentially, there are two parts to asset forfeiture — seizure (police taking of property believed to be involved with crime) and forfeiture (police or courts deciding to keep the property associated with crime).

The bill changes provisions related to the second half of that equation (forfeiture), and moves any forfeiture of property worth less than $5,000 related to the transportation, sale or trafficking of illegal drugs to a criminal, rather than separate civil, court action. It also prohibits police from seizing any cash amount less than $200, or a vehicle worth less than $2,000, from any forfeiture action with certain exemptions.

Bill advocates said the move from a bifurcated civil and criminal case system to keep everything on the criminal side as it relates to property would simplify and streamline small-dollar property forfeiture issues. 

Lee McGrath, an attorney with the libertarian-leaning Institute for Justice who also presented the bill, used the example of a person driving through Nevada and arrested for drug trafficking. People would be processed through the criminal system, but their cars and any loose cash would go through a civil court system.

McGrath said that presented an issue because the median amount of cash seized by Nevada police was only $908, not the imagined “hundreds of thousands of dollars wrapped in plastic and hidden in panels of 18-wheelers.” 

The small median amount of property seized combined with the bifurcated process of having criminal charges against a person (while property forfeiture is dealt with in civil court) meant that most people with assets seized ended up just walking away, as the cost to litigate for the return of property often exceeds the value.

“So even if you were as innocent as Mother Teresa, if you only had $908 seized from you, it would be irrational to hire a private attorney like Ms. Rasmussen to help you try to get back your $908,” he said.

The last major revision of the state’s laws on asset forfeiture came in 2015, when a group of Republican lawmakers led by former Sen. Don Gustavson passed SB138, which required police agencies to annually report information on seizures and forfeitures to the attorney general’s office, and also required setting limits on forfeiture, including staying any forfeiture actions until the conclusion of a pending criminal trial, requiring property be returned if charges are denied or dismissed and forcing police to first file a request for forfeiture with a district court.

But since 2015, other attempts to modify forfeiture law have largely fallen flat. One effort, also by Gustavson, to put additional limits on property forfeiture failed to advance out of committee in 2017.

In 2019, state lawmakers debated another measure that would clamp down on civil asset forfeiture procedures (requiring a conviction for forfeiture proceedings, and awarding proceedings to a state education budget account instead of a law enforcement agency). The bill, AB420, passed the Assembly on a 36-4 vote but failed to advance out of the Senate.

The Institute for Justice gave Nevada a “D-” grade on its civil forfeiture laws, saying that the state had “weak protections for innocent owners” and gave police a “strong financial incentive to seize.”

Supporters of the bill said it would help equalize access to justice for poorer people, who often don’t have the resources or time to dispute small-dollar forfeiture cases.

“Wealthy people accused of crimes are able to hire counsel to litigate forfeiture, which makes sure that it's only done when fair and necessary,” Jim Hoffman, an attorney representing criminal defense advocacy group Nevada Attorneys for Criminal Justice said. “But poor people accused of crimes can't afford to hire counsel, depriving them of one of the most basic protections that our system has.”

Rasmussen said she had attempted to work with police agencies including the Las Vegas Metropolitan Police Department in the past, but couldn’t get them to agree on any changes to the current forfeiture structure.

“The current forfeiture scheme is broken, because it doesn't address all of these small amounts that are seized and subsequently forfeited where someone doesn't have the resource to appear in a civil case and to litigate whether or not they should have their money back,” she said.

But John Jones, a lobbyist for the Clark County district attorney’s office, said that he was only contacted by Rasmussen last Thursday regarding the bill, and he outlined numerous issues with the legislation that he said gave criminals too many opportunities to continue holding on to ill-gotten property gains, ensuring that “crime does pay.”

“Now, I highly doubt the proponents of AB425 think crime should pay. I'm not impugning them that way at all,” he said. “But what I am saying is that this bill has some significant issues, and it creates confusing language and duplication of processes. The reason is simple. This bill is trying to place a civil process into criminal law, and the two procedures do not fit well together.”

Jones said the bill’s focus just on narcotic-related offenses would have the unintended consequence of looping the district attorney’s office into civil procedures for forfeiture, which is now typically handled by Las Vegas police. Having a new statutory scheme just for that type of crime would result in “significant confusion and duplications of efforts and may require significant recordkeeping or counting processes,” he said, adding that his office does “not have the manpower or resources to take on this additional responsibility.”

That sentiment was echoed by Metro attorney Christian, who said that most of the issues raised by proponents of the bill were already addressed in current law, which requires a nexus between the property and alleged criminal act, and that creating a new process just for drug-related crimes was not necessary because the system currently in place “ already affords so many protections to the subjects.”

“The burden is already on law enforcement to prove those things,” he said. “So if any evidence is presented to the contrary, then the money is returned.”

Rasmussen said the intent of the bill was to take a targeted, rather than broad approach, to help individuals most likely to have their property seized improperly.

“Nobody disputes that assets or cash shouldn't be forfeited if they have a nexus to the crime,” she said. “None of that has changed. This is a very narrow, targeted, limited approach at reform, so that we can start having people who are the most vulnerable at least have the representation of counsel to litigate this additional single element.”

Bill would double sentence length for crimes committed using a weapon; critics call it draconian

After state leaders participated in a top-down review of Nevada’s criminal justice system and recommended reducing penalties for some crimes as a way to pare down the prison population, the Democratic-controlled Legislature on Wednesday heard a bill likely to take the state in the opposite direction.

Republican Sen. Ben Kieckhefer, joined by Washoe County District Attorney Chris Hicks, presented SB144 on Wednesday. Existing law gives a judge discretion as to whether to sentence a defendant to one to 20 more years in prison if a deadly weapon — gun or otherwise — was used in the commission of a crime. The proposed bill would remove the judge’s discretion and specify that so-called “weapons enhancements” automatically result in a prison term that matches the length of the underlying sentence and is served in addition to it.

“The use of a deadly weapon in the commission of a crime makes them significantly more dangerous, more threatening to our community, and they warrant a punishment that ultimately doubles the sentence,” Kieckhefer said. “These are people who violated the social contract, right? These are people who have stepped far beyond the line of what we consider acceptable.”

Under the existing law, Hicks said, someone might be sentenced to 20 years to life in prison for murder but only have a weapons enhancement of 1-3 years of prison time because a gun was used in the crime. The measure — which reflects an older sentencing structure Nevada used in the 1990s and early 2000s — would raise such a sentence to 40 years to life.

The bill earned plaudits from Las Vegas police and prosecutors, who argued that people using weapons are “the worst of the worst” and that strong penalties were needed to stave off a rising number of crimes involving firearms.

“Our prisons should be reserved for the worst of the worst,” said Las Vegas police lobbyist Chuck Callaway. “And quite honestly, I can't think of any worst of the worst worse than those folks that are committing violent crimes, with a firearm, against the citizens of our communities.”

The provision could affect thousands of defendants each year. Callaway said Las Vegas police responded to 77 murders, 1,244 robberies and 2,039 aggravated assaults involving guns last year.

But it drew scorn from public defenders and a representative of the American Civil Liberties Union of Nevada, who said it would make Nevada the state with one of the most draconian weapons enhancement laws in the country.

“Nevada is already an outlier because its weapon enhancement is so harsh; we should not deviate even further in this direction,” wrote Jim Hoffman of the Nevada Attorneys for Criminal Justice. “The only effect will be to take away discretion from judges and to leave our prisons even more overcrowded, expensive, and inhumane. SB144 is a solution in search of a problem.”

Several attorneys noted that the bill isn’t limited to guns, the deadly weapons that bill supporters mentioned most — prosecutors have at times defined a deadly weapon as a pillow, a shoelace, a clothes hanger and even the ground. Lawyer Lisa Rasmussen testified that if the concern is guns, the bill was not the fix.

“We have a firearm problem, not a sentencing problem,” she said.

Some members of the Senate Judiciary Committee raised questions about how the measure fits in with a national movement to end mass incarceration and move away from the “tough on crime” policies that swelled prison populations.

“Why does the enhancement need to be equal to the sentence of the underlying crime?” asked Democratic Sen. Dallas Harris. “I don't know that I'm convinced that each and every time, it's twice as bad."

Democratic Sen. Melanie Scheible, who is a deputy district attorney, said her constituents seemed to be asking for different solutions than harsher penalties.

“I was elected by a group of people who are trying to move away from using the big heavy hammer in order to prevent crime and this feels and sounds to me like a step backwards,” she said. “Why it is that we're returning to this old-fashioned, law and order, stiffen the sentences, reduce crime policies that I don't think have been working?”

Democratic Sen. Nicole Cannizzaro, who chairs the committee and also works at the Clark County district attorney’s office — an agency that testified in support of the bill — said the measure reflected a conversation that the Nevada Sentencing Commission had in the interim about how to ensure more consistency in sentences.

“When you're in front of some judges, you know that that is going to be an equal and consecutive amount for the deadly weapon enhancement, and in front of some judges, it isn't,” she said in an interview. “And so it changes the expectation and people are treated differently because of that — the judge they draw.”

Cannizzaro said she needed to talk to other members of the committee before she could say whether she would bring the bill up for a vote. She said she sees people who have a drug problem or mental illness as different than people who commit violent crimes.

“That is a very different circumstance and obviously I'm somebody who thinks that is where we should be focusing our punishment efforts,” she said.