As a general rule, law enforcement – whether it be for the cops on the street or the prosecution of felony cases – is expensive. One of the tools law enforcement has in the battle against high-end felony drug cases has been the ability to seize cash and property and, if convictions are obtained, use those funds to further the fight against drug crime.
But, a bill going through the Minnesota Legislature would effectively gut the ability for local law enforcement/prosecution to adequately fight felony drug crimes – or do so with the local taxpayers being required to pay for it.
Two bills currently in the Legislature – House File 1971, authored by John Lesch (DFL-St. Paul) and Senate File 2155, authored by Scott Newman (IR-Hutchinson) – would significantly change how undercover drug enforcement would take place and how seized property and cash – the life blood of such investigations – would be allocated.
Under current Minnesota law, cash/property that is seized goes 70 percent to the arresting agency, 20 percent to the prosecuting attorney’s office and 10 percent to the state’s general fund. In the wording of the proposed legislation, the arresting agencies would have no access to seizure funds. Seized cash/property would be part of criminal action instead of civil action and split equally between four state agencies – the Office of Justice Programs, crime victim services organizations that provide services to sexually exploited youth, the Minnesota Public Defenders Board and the state’s general fund.
Assistant Wright County Attorney Greg Kryzer told the Wright County Board of Commissioners that the elimination of civil forfeitures and the ability to seize cash and property at the time of an arrest would greatly impact the county. He said that, for example, if officers came on a meth lab that had $30,000 in cash on a table next to the drugs, they would be required to leave the money behind even if it was clear that the cash was derived from drug sales under the new law and create a completely new paradigm.
“I think what these bills should really be called is ‘Make Crime Pay,’” Kryzer said. “In talking with the sheriff, what’s going to have an impact on the county budget is that, right now, they use drug forfeiture funds to do a controlled buy. If this bill passes and we don’t have drug forfeiture funds, that’s going to turn into levy dollars that will be used to buy methamphetamine from some doper on the streets. Taxpayers in this county are going to be paying for meth. That’s what people need to understand – if this bill passes, you will be levying dollars to go out and buy meth.”
What is stunning to Sheriff Sean Deringer is that the bill, which was introduced last year but died in committee, has been brought back in almost identical form this year without seeking any input from those most intimately impacted by its sweeping changes.
“This is a garbage bill,” Deringer said. “It amazes me that it has been introduced twice without law enforcement being invited to the table. You can’t devise laws like this and do protocols like this without soliciting the input of the professionals who use it every single day. It’s a regurgitation of the same bill that came up last year and it’s still garbage. That’s the frustration, because they’ve yet to invite us to the table to discuss it.”
The money brought in through forfeiture/seizure laws are critical for law enforcement agencies to fight drug crimes. The total brought in varies from year to year. In 2017, the Wright County sheriff’s office took in $280,000 in seized cash and property. The department is still using that money for things like training, officer vehicles, drug buy money in investigations, equipment items like Kevlar vests and protective helmets for the SWAT team and educational materials. The county attorney’s office gets a much smaller percentage, but used its funding to buy a binding machine that Kryzer estimated has saved the county $30-40,000 over the last five years to bind appellate briefs.
Deringer has been reaching out to all of Wright County’s legislators to discuss the bill with them and the significant ramifications if it passes and changes the landscape.
“All of the tools in our toolbox to investigate drug crimes in Wright County that forfeiture funds help pay, I would now have to line-item budget for,” Deringer said. “The cost of fighting the drug dealers would fall on the taxpayers of the county if this passes.”
Robert Small, a former Hennepin County judge and current executive director of the Minnesota County Attorneys Association, has been spearheading the fight in St. Paul to get law enforcement as a player in the discussion, which he said has been greatly exaggerated by the bill’s authors – both of whom have a potential conflict of interest since both were defense attorneys/public defenders before becoming legislators.
Small admitted that, more than a decade ago, there were significant abuses of seizure laws by the Metro Gang Strike Force at the beginning of the meth epidemic. But in the years since, laws have been created that brought significant changes to seizure/forfeiture protocol to prevent similar abuses of power. But, the proposed bills don’t take into account those changes and have created misinformation about the issue.
“The narrative being put forth is not accurate in the experience of current law enforcement and doesn’t match with the call for a need for change that this legislation proposes,” Small said. “It is a bill that was created on a false narrative and goes strongly in the face of law enforcement and the job they’re assigned to do for public safety.”
The bill was modeled on a New Mexico law. Small said he knows of no other states that have enacted a similar law that would create such sweeping change. He added that, in speaking with colleagues in New Mexico, the creation of the new law has effectively gutted the forfeiture cases in for local police forces and attorney’s offices.
At the heart of the problem for law enforcement is that, while officers and attorneys are still expected to do their jobs in terms of fighting crime, they do so with their hands effectively tied in terms of being able to fund the battle. What makes the issue so galling to Deringer is that, even the second time around with the same bill, nobody from the law enforcement community has been asked to sit down with the bill authors to explain the dire ramifications that its passage could have on so many at the local level – those in the public safety business and ordinary citizens who may eventually pay the tab.
“It’s been my offer to sit down at the table and, if there is common ground to be reached, let’s find that common ground,” Deringer said. “But, to change the law without any representation from law enforcement or prosecuting attorneys to jam a bill out there and see what happens, that’s the biggest problem I have with it.”
It is unclear if the bill has the support to make it to the floor of the House and Senate for a vote as the clock ticks down on the 2019 legislative session in St. Paul, but Small is concerned that it might make it to a vote and, if it does, it may get voted up or down without legislators having a full understanding of the potential ramifications.
“Sadly, I think this has a very legitimate chance of passing,” Small said. “What is so concerning is that Minnesota sheriffs, police chiefs, county attorneys and drug task force members are all unanimously opposed to this bill. It’s surprising to me that our law enforcement community seemingly isn’t being listened to on something so important.”
John Holler covers government and the Wright County Board of Commissioners.