Lawmakers to limit Civil Asset Forfeiture in NY Budget Proposal
Contrary to the belief of most New York City Police officers it is not illegal to possess thousands of dolllars in cash and merely having cash does not mean that the person is engaged in criminal activity. Too often police have just taken the cash of innocent people and then those people who have had their money seized by the government have to jump through cumbersome hurdles to get their money back. Our New York City civil forfeiture Attorneys know that this is fundamentally unfair.
To stop some of the abuses by law enforcement, there are three major proposals to limit civil asset forfeiture, all of which are opposed by the District Attorneys Association of the State of New York. Prosecutors in New York will no longer be able to seize a defendant’s assets in most cases unless they can show those funds are the direct product of illicit activity, according to legislation that’s expected to be passed as part of the state budget Sunday. The proposal will amend the state’s law on so-called civil asset forfeiture, which is currently used by prosecutors in some cases to either freeze or collect the assets of a defendant throughout a criminal proceeding.
There are three major provisions of the legislation, all of which are opposed by the District Attorneys Association of the State of New York. The proposal was included in one of 10 omnibus bills that will make up the $175 billion state budget—a mishmash of policy items and appropriations.
The first section of the legislation would block prosecutors from freezing a defendant’s assets unless they can show they’re “tainted” or the direct proceeds of the crime an individual was charged with. This is a major step forward because prosecutors will not be able to just say that money is from illicit sources, they now have a burden to prove it.
Prosecutors are arguingthat, if they’re not able to freeze all of someone’s assets, the defendant could use them to either pay for their legal defense or get rid of the money in some other way. That would leave fewer assets to be awarded to victims in court if the defendant is convicted. Also if the prosecution has to wait until after a judgment is entered, there will be no assets left. Victims will be the ones that suffer. But our New York civil rights attorneys know that the government already has an advantage in any criminal prosecution and it is fundamentally unfair and unconstitutional to use the civil forfeiture laws to prevent someone who is accused of a crime from using their own money to pay a competent criminal defense attorney.
Current law allows prosecutors to calculate what a defendant earned from their alleged crimes and then get a restraining order against all of the defendant’s assets up to that amount. The legislation in the budget would allow prosecutors to only seize assets they can show are the direct proceeds of an alleged crime.
While the bill would make it more difficult for prosecutors to go after criminals who don’t pay taxes or fair wages to their employees, for example, because they wouldn’t be able to identify the specific dollars gained through those schemes to move for them to be frozen, it will also prevent the government from seizing lawful funds to make sure the accused can’t afford a competent criminal defense attorney and is stuck with a legal aide who is overworked and lacks the experience to prepare a proper defense.
Under current law, prosecutors can secure assets from a defendant to award to a victim regardless of whether those funds are the direct proceeds of the crime. In other words, if the direct proceeds of a crime have disappeared, prosecutors can seize other funds to award to a victim in their place. The proposal would only allow prosecutors to seize untainted funds if they can’t find the direct proceeds of a crime as argued by some. At that point, it would be up to the judge overseeing the case to decide whether a prosecutor could require those funds be seized.
The third provision would prohibit judges from considering whether funds were obtained illegally when deciding on a motion to release them to pay for attorneys’ fees. That would allow those funds to be released to pay for a defendant’s counsel, even if they’re alleged to be the direct proceeds of a crime.
“Under [the law] an application by the defendant … the court can release funds for reasonable living expenses and counsel fees. That will be permitted without the need to distinguish whether the assets are tainted.
However our New York civil forfeiture attorney know that even before this law New York police simply evaded New York’s civil forfeiture protections by turning the money over to the Federal government, which has more draconian laws. Under the federal administrative forfeiture laws, the government simply sends a notice that it is administratively seizing the money, which means it is presumed that the money is from illegal funds, unless the person whom the money belongs to files a written objection within a certain time limit.if the form objecting to the disclosure is not filed on time, then the government gets to keep the person’s money and there is no remedy.