HSB 634

Topics:Crime & corrections Public safety & emergencies

Same legislation: HF 2560

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Official bill page Lobbyist declarations One-pager to print

Where it is now

Done: IntroducedJanuary 30, 2024
Done: SubcommitteeJanuary 30, 2024
Done: House committeeFebruary 14, 2024
Skipped: Passes the HouseContinued as HF 2560
Next: Senate committee
Next: Passes the Senate
Next: To the Governor
Next: Signed into law

Became HF 2560 → Its progress continues under the new number. Go to HF 2560 What’s a funnel?

What’s in it

AI summary Iowa would change how the state takes property away from people involved in certain crimes. Instead of many types of offenses, the state could only take property used for or gained from drug crimes. This new law also adds protections for property owners, such as requiring receipts for seized items and providing legal help for those involved in the process.¹

Read the official explanation

This bill relates to criminal asset forfeiture. Asset forfeiture is a process by which contraband and proceeds or instrumentalities related to criminal activity may be seized by the state and sold. Under current law, asset forfeiture is governed by Code chapter 809A. The bill repeals Code chapter 809A and replaces it with new Code chapter 809B. Currently under Code chapter 809A, a conviction for a criminal offense is not required for an asset to be subject to forfeiture for property valued at $5,000 and less, and forfeiture need not be expressly authorized as a penalty in the criminal statute. Under current law, forfeiture is provided as a remedy for certain driving while intoxicated offenses and for violations of Code chapters 706B (money laundering), 715A (forgery and related fraudulent criminal acts), and 716A (electronic mail). The bill prohibits civil forfeiture and provides that criminal forfeiture is only available to the seizure and forfeiture of property used in and derived from the violation of Code chapter 124, subchapter IV (controlled substances —— offenses and penalties). Under the bill, forfeiture is disfavored. The bill’s stated purposes are to deter criminal activity by reducing criminal activity economic incentives, confiscate property used in the violation of the law, and protect due process rights of property owners. The bill provides that the court that has jurisdiction in the related criminal matter shall have jurisdiction over the forfeiture proceeding and the forfeiture shall be part of the trial of the related crime. _____ property. The bill provides for the seizure of personal property without process if the property was seized during a lawful arrest. The bill further provides that the seizure of real property requires process and proper notice. The bill provides that people do not have property rights in stolen property or contraband. Stolen property may be returned to the rightful owner and contraband shall be disposed of. The agency that seized the property is responsible for providing adequate storage, security, and maintenance for all assets in the agency’s custody. The bill requires that the law enforcement officer that seizes the property shall provide an itemized numbered receipt of all assets being taken. The bill exempts United States currency totaling $200 or less and a motor vehicle valued at $2,000 or less from seizure and forfeiture. The bill provides that a person may execute a waiver to relinquish the person’s rights, interests, and title in the seized property and that waiver is subject to a claim by a secured interest holder, innocent owner, or other person entitled to notice. The bill further provides that a law enforcement officer, other than the prosecuting authority, may not request, induce, or require a person to waive the person’s rights in seized property. The bill requires a law enforcement agency making a seizure to submit a report to the appropriate prosecuting agency within days of the seizure. _____ conveyance, the report shall include the make, model, serial number, and year of the conveyance and the name and contact information of the person in whose name the conveyance is registered, and (9) any other relevant information. The bill provides that the title to the seized property vests with the state when the court issues a forfeiture judgment and relates back to the date when the state took control of the property. The bill provides for appointed counsel for a defendant in a forfeiture proceeding if the person has a public defender, or court-appointed counsel, to the person in the connected criminal matter. In a pro se proceeding, the court may exercise discretion applying the rules of pleading, practice, evidence, and procedure. The bill requires the prosecuting authority to perform a reasonable search to identify any person, other than the defendant, known to have an interest in the property subject to forfeiture and give notice to the interested person. The bill allows notice to be through publication if personal service is not available. The bill provides language that shall be included in the notice to other known owners. If the prosecuting authority does not serve notice on any persons appearing to have an interest in the property and the extension period has expired, the prosecuting authority or court shall order the return of the property to a person with a valid interest in the property who makes a request. The bill provides that following seizure, a defendant or any other person with an interest in the property has a right to a prompt post-seizure hearing and may file a motion to request a hearing. _____ has ordered the return of sufficient funds to the defendant, not needed as evidence, for the defendant to obtain counsel of choice but less than the total amount seized. The bill allows the court to impose reasonable conditions on the return of the property. The bill requires the prosecuting authority to provide a notice of proposed forfeiture with the court and the person whose property will be seized. The notice shall include (1) a description of the property seized, (2) the time, date, and place of the seizure, (3) the seizure receipt number, and (4) a description of how the property was used in or derived from the alleged crime. The bill provides that forfeiture proceedings are subject to the rules of criminal procedure.401 and the state has established by a preponderance of the evidence that the property is an instrumentality of or proceeds derived directly from the violation. Upon conviction, the court has the discretion to hold the forfeiture proceeding as soon as practicable. A forfeiture proceeding shall be held without a jury. The bill also provides that property may be forfeited by consent order approved by the court provided that secured interest holders, innocent owners, or others entitled to notice to consent to the forfeiture.401 and grant title of the property to the state if the prosecuting authority files a motion no fewer than days after seizure and proves that the defendant abandoned the property, fled the jurisdiction, was deported, or died. The bill provides for a proportionality hearing, where the defendant may petition the court that the forfeiture was unconstitutionally excessive. _____ innocent owners whose property has been seized by the state. The bill allows the secured interest holder and an innocent owner whose seized property is not returned to petition the court for a hearing for the property to be returned. The bill provides that a defendant is not jointly and severally liable for forfeiture awards owed by other defendants. The bill provides that in a forfeiture proceeding in which a claimant substantially prevails, the state shall be liable for attorney fees and other litigation costs incurred. The bill provides the procedure to return the property and any damages sustained to the property during its seizure.

Changed since by amendment H-8127; see Amendments.

Full bill text²

House subcommittee

Named January 30, 2024. On February 12, 2024 it recommended passage. Vote Total: 2-0.

Three legislators hear a bill first and recommend what the committee should do; it’s the best time to weigh in. How to take part

210 written public comments to its subcommittee: February 12, 2024 (210) · on the Legislature’s site

Fiscal note

AI summary This bill prohibits civil asset forfeiture and limits criminal forfeiture to property used in or derived from controlled substance offenses. The fiscal impact on agencies that handle forfeiture property or proceeds, such as the Department of Public Safety, the Department of Justice, local law enforcement, and county attorneys, is unknown. Additionally, the cost to law enforcement agencies for paying attorney fees if a property owner prevails, and the impact on the Indigent Defense Fund, cannot be determined.³

Read the fiscal note

Description

House File 2560 repeals Iowa Code chapter 809A and replaces it with new Iowa Code chapter 809B. The Bill does the following:

Prohibits civil forfeiture and provides that criminal forfeiture is only available to the seizure and forfeiture of property used in and derived from the violation of Iowa Code chapter 124, subchapter IV (Controlled Substances — Offenses and Penalties).
Provides that the court that has jurisdiction in the related criminal matter will have jurisdiction over a forfeiture proceeding, and that the forfeiture is a part of the criminal trial. The forfeiture proceeding must follow a finding of the defendant’s guilt or be conducted at the court’s discretion. If the prosecuting authority fails to meet the burden in the criminal or forfeiture proceeding, the court must enter judgment dismissing the forfeiture proceeding. The Bill provides for appointed counsel for a defendant in a forfeiture proceeding if the person has a public defender, or court-appointed counsel, to the person in the connected criminal matter.
Provides that in any proceeding in which a property owner’s claim prevails by recovering at least half, by value, of the property or currency claimed, the court must order the seizing law enforcement agency or prosecuting authority at fault to pay all of the following:
Reasonable attorney fees and other litigation costs incurred by the claimant.
Postjudgment interest.
In cases involving currency, other negotiable instruments, or the proceeds of an interlocutory sale, any interest actually paid from the date of seizure. The Bill also provides that if the forfeiture is granted, the court is required to order the sale of forfeited property. When all forfeited property is reduced to proceeds, the court may order the distribution of the proceeds to do any of the following:
Pay restitution to the victim of the crime.
Satisfy recorded liens, mortgages, or filed security interests in the forfeited property.
Pay reasonable costs for the towing, storage, maintenance, repairs, advertising, sale, and other operating costs related to the forfeited property.
Reimburse the seizing law enforcement agency for nonpersonnel operating costs, including controlled-drug buy money, related to the investigation of the crime.
Reimburse the prosecuting authority, public defender, or court-appointed attorney for nonpersonnel court costs, including filing fees, subpoenas, court reporters, and transcripts. After disbursements under Iowa Code section 809B.33(4), the court may reimburse actual costs of up to $100,000 by ordering the disbursements of:
Up to 50.0% of remaining funds to reimburse the seizing law enforcement agency for the salaries, benefits, and overtime pay of uniformed personnel expended in the seizure of the property and investigation of the crime.
Up to 25.0% of the remaining funds to reimburse the prosecuting authority for the salaries, benefits, and overtime pay expended in the prosecution of the crime and forfeiture proceeding.
Up to 25.0% percent of the remaining funds to reimburse the public defense or the fund to pay court-appointed counsel for the salaries, benefits, and overtime pay expended in the defense of the criminal defendant and forfeiture proceeding.

After disbursements under Iowa Code sections 809B.33(4) and 809B.33(5), the court may order the remaining funds be disbursed to any of the following:

The General Fund of the State.
The Department of Public Safety (DPS) to supplement existing statewide grants to law enforcement agencies for the purchases of equipment.
The prosecuting agency for uses other than reimbursement of salaries, benefits, and overtime pay of personnel associated with the criminal prosecution of the case.
The State Public Defender for uses other than reimbursement of salaries, benefits, and overtime pay of personnel associated with the criminal defense of the case. A law enforcement agency is prohibited from selling forfeited property directly or indirectly to any another law enforcement agency.

Background

Asset forfeiture is a process by which contraband and proceeds or instrumentalities related to criminal activity may be seized by the State and sold. Asset forfeiture law in Iowa is governed by Iowa Code chapter 809A.

Under current law, civil forfeiture proceedings are independent of any criminal prosecution for the same conduct, and therefore, property may be forfeited even if criminal charges are not brought or if the defendant in a criminal case is acquitted. For seized property to be forfeited, the State must show, by clear and convincing evidence, that the property is subject to forfeiture under Iowa Code section 809A.4. There are five types of property that are subject to forfeiture: controlled substances, real and personal property, proceeds, weapons, and enterprise interests. In addition, in some circumstances, substitute assets may be subject to forfeiture. Conduct giving rise to forfeiture is defined as an act or omission that is a public offense and is a serious or aggravated misdemeanor or felony in Iowa, or an act or omission occurring outside of Iowa that would be punishable by confinement of one year or more in the other state and would be a serious or aggravated misdemeanor or felony if it occurred in Iowa. Therefore, conduct that is a simple misdemeanor or a scheduled violation does not give rise to forfeiture. If the value of the property to be forfeited is equal to or exceeds $5,000, whether an act or omission is conduct giving rise to forfeiture does not depend on whether a person is arrested, prosecuted, or convicted for the act or omission, and an acquittal or dismissal in a criminal proceeding does not preclude forfeiture of property. Asset forfeiture for property valued at less than $5,000 is prohibited unless the conduct giving rise to forfeiture results in a conviction, or one of the other exceptions related to the property owner has been met. Once property has been forfeited to the State, the property must be delivered to the Iowa Department of Justice (DOJ) and destroyed, sold, traded, or given to any other State agency or to any other law enforcement agency within the State if, in the opinion of the Attorney General, it will enhance law enforcement within the State. Forfeited property that is not used by the DOJ in the enforcement of the law may be requisitioned by the DPS or any law enforcement agency within the State for use in enforcing the criminal laws of the State. Forfeited property not requisitioned may be delivered to the Director of the Department of Administrative Services to be disposed.

Forfeited property that is a controlled substance or a simulated, counterfeit, or imitation controlled substance must be destroyed, but prescription drugs may be given to nonprofit hospitals. Forfeited weapons and ammunition are deposited with the DPS and disposed of in accordance with the DPS’s rules. Weapons that are not illegal or offensive may be sold at auction. Proceeds from weapons sales, less expenses, are deposited in the General Fund of the State.

If the forfeited property is cash or proceeds from the sale of real property, the DOJ is prohibited from retaining more than 10.0% of the gross sale of any forfeited real property. The balance of the proceeds is distributed to the seizing agency for use by the agency or for division among law enforcement agencies and county attorneys pursuant to any agreement entered into by the seizing agency. In the event of a cash forfeiture of more than $400,000, the distribution of forfeited cash is to be as follows:

45.0% is to be retained by the seizing agency.
45.0% is to be distributed to other law enforcement agencies within the region of the seizing agency.
10.0% is to be retained by the DOJ.

Refer to the LSA Legislative Guide Forfeiture Reform Act for more information related to Iowa’s forfeiture laws.

Assumptions

The number of forfeitures and total proceeds from forfeitures made by law enforcement may be reduced.
The seizing agencies may incur increased costs due to additional attorney fees and litigation costs.
The transfer of forfeiture proceedings from civil to criminal would expand the scope of representation and duties of court-appointed attorneys representing criminal defendants.
Employees of the Office of the State Public Defender will represent clients in forfeiture proceedings, which will result in additional costs to the Indigent Defense Fund.
The hourly rate structure for State Public Defender attorneys will remain at $73, $78, and $83.
State public defenders and contract attorneys will spend an additional two to three hours per case on average.

Figure 1 shows the total amount of proceeds from cash forfeitures in each of the last five fiscal years, including the total amount the Attorney General’s Office received. The Attorney General’s Office received approximately 10.0% of the total amount received by the State for cash forfeitures in each given year.

Figure 1 — Cash Forfeiture Proceeds

Fiscal Impact

House File 2560 will likely have a fiscal impact on all agencies that dispose of forfeiture property or retain a portion of the proceeds from forfeitures, such as the DOJ, the DPS, local law enforcement, and county attorneys. The extent of the fiscal impact to these agencies is unknown. The fiscal impact from a property owner prevailing in a forfeiture proceeding would require the seizing law enforcement agency to pay the attorney fees is unknown and cannot be determined.

According to the Attorney General’s Office, the State has received a total of $10.4 million in cash forfeiture proceeds over the last five fiscal years. Of this amount, the Attorney General’s Office has received approximately $1.0 million in cash forfeiture proceeds over the past five years. The fiscal impact of the Bill to the Attorney General’s Office is unknown. Over the past five years, the DPS has received a total of $819,000 from State forfeiture proceeds. The fiscal impact of the Bill to the DPS is unknown.

The total cost to the Indigent Defense Fund is estimated to be approximately $241,000 per year. Of this total, $160,000 would result from an increase in hourly workload for the State Public Defender’s Office and $80,000 would result in increased workload for contract attorneys.