Thomas Hawk / flickr

Nearly a year after California voters overwhelmingly agreed to lessen sentences and release inmates convicted of minor crimes, statistical and anecdotal evidence has cast doubt on the wisdom of Proposition 47.

A souring trend

Change has been swift, but results have been mixed, with little to suggest the dynamic is soon to shift. “In the 11 months since the passage of Prop. 47,” the Washington Post reported, “more than 4,300 state prisoners have been resentenced and then released. Drug arrests in Los Angeles County have dropped by a third. Jail bookings are down by a quarter. Hundreds of thousands of ex-felons have applied to get their previous drug convictions revised or erased. But along with the successes have come other consequences, which police departments and prosecutors refer to as the ‘unintended effects.'”

“It’s too early to know how much crime can be attributed to Prop. 47, police chiefs caution, but what they do know is that instead of arresting criminals and removing them from the streets, their officers have been dealing with the same offenders again and again.”

As early as August, the numbers painted an unflattering picture of change. “In San Francisco, theft from cars is up 47 percent this year over the same period in 2014,” noted Debra Saunders at the San Francisco Chronicle. “Auto theft is up by 17 percent. Robberies are up 23 percent. And aggravated assaults are up 2 percent, according to San Francisco police spokesman Carlos Manfredi. Burglaries are down 5 percent.”

Los Angeles, Saunders added, “saw a 12.7 percent increase in overall crime this year, according to the Los Angeles Times; violent offenses rose 20.6 percent, while property crime rose by 11 percent. Mayor Eric Garcetti says Prop. 47 may explain Los Angeles’ change in course from crime reduction to crime increases.”

Now, cities and municipalities have begun facing up to the problems. In Santa Barbara County, for instance, the Board of Supervisors heard that, in the wake of Prop. 47, “the average daily population of the county jail has since crept back closer to normal levels, and the burdensome court workload is holding steady,” according to Noozhawk.com.

“The law — crafted outside the state Legislature — is meant to save the state $100 million to $200 million by eventually reducing the criminal-justice workload and freeing up jail beds and probation resources. But that money isn’t coming until August 2016 at the earliest,” the site noted.

Holding out hope

Defenders of the measure insist that the wait is worth it. Writing in The Desert Sun, Indio public defender Roger Tansey called it “far too soon to declare Proposition 47 dead,” since “the second part of the proposition — the estimated $250 million in savings to be spent on rehabilitative services — has yet to be channeled to the counties.” Until that money rolls in, Tansey said, it’s too hard to tell whether repeat offenders are coaxed out of crime through rehab programs.

Other supporters shifted the grounds of the debate to Prop. 47’s impact on the next generation. “Children suffer most when we cavalierly incarcerate their parents,” cautioned San Diego Unified School District board member Richard Barrera in an editorial for U-T San Diego. “According to the Department of Health and Human Services, children of incarcerated parents are seven times more likely to be locked up one day. And according to the Women’s Prison & Home Association, one in 10 will have been incarcerated before reaching adulthood. Prop. 47 savings mean more money for schools. It means more money to invest in our communities’ health and safety. It means more students with stable homes, and more support for those looking to get their lives back on track.”

Momentum stalled

The initial wave of enthusiasm for Prop. 47 extended well beyond California, with the measure fitting the pattern of Golden State policies framed up as models for nationwide use. But in an editorial urging caution around the so-called Justice Reinvestment Act, Massachusetts’ answer to Prop. 47, the Boston Globe warned that many fewer addicts are agreeing to participate in drug court “while the homeless population has risen. Massachusetts lawmakers should examine California’s experience and find ways to avoid such unintended consequences.”

OCT. 15, 2010

By JOHN SEILER

Dan Lungren faces a tough re-election challenge in his re-election bid for Sacramento’s 3rd congressional district. He faces Democrat Ami Bera, an Indian-American physician. The difficulty of the election is surprising in an election year highly favorable to Republicans.

Lungren is a longtime congressman and former attorney general of California, from 1991-98. He lost the 1998 gubernatorial election to Democrat Gray Davis.

Lungren may be facing difficulty because his conservative credentials long have been in doubt, especially on the rock-ribbed conservative issue of property rights. More than any politician in America, Lungren is associated with civil asset forfeiture. Under such laws, someone need not even be arrested, let alone found guilty, before the government seizes his in an alleged crime.

In his first stint in Congress, Lungren sponsored the infamous 1984 “Lungren Law,” whose offical name is the Comprehensive Forfeiture Act of 1984.

In California, one of the worst aspects of state forfeiture laws was that the property generally was kept by the local or state police department — a slush fund not accountable to voting taxpayers. A November 17, 1992 news article in The Orange County Register explained how it worked:

No one looked twice when Police Chief Arb Campbell cruised around town in a 500 SEL that officers had seized during a 1991 drug bust.

Yet state policy emphasizes that all forfeited assets should be used strictly for law-enforcement work, according to David Puglia, a spokesman for Attorney General Dan Lungren. It’s unclear whether Campbell’s use of the 1985 Mercedes-Benz was a violation of state law….

City Manager Kevin Murphy said it was unclear whether Campbell’s use of the Mercedes was a violation, even if the chief used it on personal trips. Campbell had been given extra privileges with his city car to use on personal business as long as he paid for the fuel, Murphy said.

Death by seizure

An even more infamous asset forfeiture case involved rancher Don Scott, who was killed by police on his ranch in 1992. Wikipedia described what happened:

When deputies broke down the door to Scott’s house, Scott’s wife would later tell reporters, she screamed, “Don’t shoot me. Don’t kill me.”^[3] That brought Scott staggering out of the bedroom, bleary-eyed from a cataract operation — holding a .38 caliber Colt snub-nosed revolver over his head.^[4] When he emerged at the top of the stairs (note: this was a one-story residence), holding his gun over his head, the officers told him to lower the gun. As he did, they shot him to death. According to the official report, the gun was pointed at the officers when they shot him. ^[1]

Despite a subsequent search of Scott’s ranch using helicopters, dogs, searchers on foot, and a high-tech Jet Propulsion Laboratory device for detecting trace amounts of sinsemilla, no marijuana — or any other illegal drug — was found….

Michael D. Bradbury, the District Attorney of Ventura County conducted an investigation into the raid and the aftermath, issuing a report on the events leading up to and on October 2, 1992. ^[1] He concluded that asset forfeiture was a motive for the raid. ^[6][7]

Lungren vs. reform

It was such abuses that led to a movement to allow California’s civil asset forfeiture laws, passed five years earlier, to expire at he end of 1993. The movement was led by a “strange bedfellows” alliance between conservative Newport Beach Assemblyman Gil Ferguson, a decorated U.S. Marine combat officer and veteran of World War II and Korea, and liberal Democratic Assemblyman John Burton, later Senate leader and current chairman of the California Democratic Party.

Ferguson, a brave and beloved figure in Orange County politics, died in 2007. Ferguson once said, “In the Roman legions they had men in each company who carried the standard. He’d rush among the enemy to plant it in the ground. All the other men would fight toward the standard to rescue him. That was his job. I view that as my job.”

Leading the opposition against them was Dan Lungren, who had been elected attorney general in 1990. As The Orange County Register wrote in a February 23, 1993 editorial:

At the end of this year, California’s own draconian seizure law expires. The state legislature now is debating whether to extend the law….

California Attorney General Dan Lungren, considered a conservative, backs the extension of this extremely unconservative state assault on property rights. In 1984, as a US congressmen, he even sponsored the US federal seizure law now in effect.

Mr. Lungren needs to reassess his position to realize that a free society rests on the rock-solid right of private property….

Seizure laws also violate our ancient Anglo-Saxon tradition of someone being innocent until proven guilty. If government seizes your property, you only can reclaim it after paying expensive legal fees and grinding through years in court.

On April 20, 1993, The Register explained the duel between Ferguson/Burton and Lungren:

On Tuesday, May 4, the state Senate Judiciary Committee will hold hearings on SB 1158, a bill proposed by central valley Republican Sen. Ken Maddy and supported strongly by Attorney Gen. Dan Lungren to broaden the power of state government and law-enforcement agencies to seize the assets of people accused of crimes, especially drug crimes. The committee would do well to reject this bill and opt instead for the kind of reform embodied in a different bill that has already passed the Assembly Committee on Public Safety.

AB 114, proposed by Democrat John Burton of San Francisco, is not perfect. But it is a good-faith attempt to reform laws that allow law-enforcement agencies to seize property owned by people accused of crimes — purportedly because the property is the proceeds of criminal activity or has been used to conduct criminal activity….

It is curious that people generally viewed as conservatives of one stripe or another, who should be in the forefront of the fight to safeguard the right to private property, are instead seeking to weaken those safeguards. We hardly ever agree with Assemblyman Burton, but on this issue he displays a healthy concern for civil liberties. The Legislature should follow his lead here and administer a sharp and well-deserved defeat to Mr. Maddy and Mr. Lungren.

That’s exactly what happened. Later, the Burton-Ferguson bill was passed, and some rights of the innocent were restored — although federal asset forfeiture laws still could be used by local and state law enforcement.

Toe-to-toe, Ferguson vs. Lungren

I well remember those times. The duel between Lungren and Ferguson was real. A staffer with Ferguson at the time just told me the following, on condition that I not use his name:

Gil was adamant about private property and property rights. He was a good and longtime friend of the late professor Bernie Siegan. Both he and Gil opposed zoning laws, government building codes and eminent domain.

Gil and Lungren did not see eye to eye on several things. Lungren supported the vicious club of government asset forfeiture.  As a firm advocate of private property and property rights, Gil was very opposed to megalmaniacs like Lungren and thier war on private property and freedom. They went toe to toe at a Republican convention in 1991.

Gil was quite the Rennaisance man: a soldier, a corporate executive, a community organizer, a legislator, a homebuilder, a philosopher, a newspaper publisher, a father and an artist.

Gil was a great man. His courage on the beaches of Guadalcanal, the frozen mountains of Korea, and battling with and winning often over the seething viciousness of the California Assembly, the Republican Party and the community itself was unparalleled.

Lungren for governor

There was a comic element to Lungren’s fixation with giving the police more powers and perks, including Mercedes 500 SELs. He hoped to ride their endorsements into the governor’s mansion. But something funny happen. In the early 1990s Gray Davis, then the head of the Democratic Party, pulled a switcheroo.

Until then, there was a balance in state politics. Republicans were “law and order” and sided with the police. Democrats backed “civil rights” and often clashed with police over excessive police powers. But the 1978 Dill Act, signed into law by then-Gov. Jerry Brown — whose chief of staff at the time was Davis — made legal collective bargaining with state worker unions, including police  unions.

Davis figured that, if Democrats sold out on the civil rights aspect, police — and prison guards — would naturally gravitate to the Democratic Party, the natural home of unions. That’s just what happened. In 1998, Lungren ran on a “law and order” platform, but most law-enforcement unions backed Davis, who won by 20 percentage points. The police and prison guards’ unions were rewarded by Davis with pension-spiking and pay-spiking, major contributors to the state’s endemic fiscal problems.

How bad it was

On August 29, 1993, as the California asset-forfeiture law was about to expire, The San Jose Mercury-News ran a story describing the damage to innocent, regular Californians by the law that Lungren was so devoted to:

After Kay Van Sant’s 30-year-old son was arrested on drug-trafficking charges last spring, the Bakersfield police marched into her bank and drained her checking account of $3,912.

Van Sant, a self-employed bookkeeper who hasn’t lived with her son in 10 years, has never been accused of a crime. And she hasn’t gotten her money back.

Miluska Portilla and Percy Ormeno, T-shirt vendors who live in Daly City, lost $1,045 when San Francisco police raided their house looking for drugs. No drugs were found. No arrests were made. The only thing police officers found was a piece of paper they said was a record of narcotics sales — a document the prosecutor who took their cash admitted he’d never seen.

Roberto De La Torres’ pickup was seized in March after his cousin was arrested in it with a pound of marijuana. De La Torres, who speaks no English, wanted to explain that he’d loaned the truck to his cousin before leaving on a Mexican vacation. He never got the chance. Announcing that “the court doesn’t speak Spanish,” a Kern County judge awarded De La Torres’ pickup to the police, ignoring his pleas for an interpreter.

These tales and dozens like them are the untold story of California’s asset-forfeiture law, a 5-year-old experiment designed to combat the overlords of the state’s multibillion-dollar illegal-drug industry.

The state’s top law-enforcement officers call the experiment — which they estimate has resulted in at least $1 billion in seizures — an unqualified success, and are pushing to make it permanent.

But a three-month San Jose Mercury News investigation found a very different world — one of widespread abuses, where suspicion and hearsay can cost you your car, your cash, your house, the pictures on your wall and the clothes in your closet; where the police seize property first and ask questions later; where you’re guilty unless you prove otherwise — and if you can’t afford a lawyer, too bad.

It is a world where, if you’re poor or ignorant, you stand almost no chance of winning –even if you happen to be innocent.

Fast-forward to 2010. If Dan Lungren is re-elected, and Republicans take control of Congress, he will be one of the most powerful men in America.

John Seiler, an editorial writer with The Orange County Register for 20 years, is a reporter and analyst for CalWatchDog.com. His email: writejohnseiler@gmail.com.