Judiciary Committee - Senate
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Bills discussed (3)
| Bill | Title | Sponsor | Status |
|---|---|---|---|
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SB197
· 10 mentions in chapter, agenda, transcript
Matched: “SB197 A. Clark TO REFORM THE CIVIL ASSET FORFEITURE PROCESS; CONC…”
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TO REFORM THE CIVIL ASSET FORFEITURE PROCESS; CONCERNING PROPERTY USED IN THE COMMISSION OF AN … | A. Clark | Sine Die adjournment |
|
HB1184
Act 147
· 4 mentions in chapter, agenda, transcript
Matched: “HB1184 Dalby CONCERNING THE DRAWING OF A PERSON'S BLOOD WHEN A PER…”
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CONCERNING THE DRAWING OF A PERSON'S BLOOD WHEN A PERSON WAS OPERATING OR IN ACTUAL … | Dalby | Notification that HB1184 is now Act 147 |
|
SB190
· 2 mentions in chapter, agenda
Matched: “SB190 A. Clark TO REMOVE A DRIVER'S LICENSE SUSPENSION OR REVOCAT…”
|
TO REMOVE A DRIVER'S LICENSE SUSPENSION OR REVOCATION AS AN AVAILABLE PENALTY FOR OFFENSES NOT … | A. Clark | Died in Senate Committee at Sine Die adjournment. |
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Senator Alan Clark
Unverified
0:00
Chair sees a quorum. Y'all are ready to get started. We will start with House Bill 1184 with Representative Dalby, who's already at the end of the table. Representative Dalby, you are
Representative Carol Dalby
Unverified
0:15
recognized. Thank you, Mr. Chair. Members, House Bill 1184 is really a very simple bill. What has happened that's causing us to make an amendment to our statute is the United States Supreme Court and the Arkansas Supreme Court have both said that in a DWI situation in which
typically you get a warrant for a blood draw, you can get consent by an individual, but it can't be implied. And so all this bill is doing is following what the courts have said is that you've got to have express consent. If you're unable to get a warrant or if you need to get a blood draw because there are exigent circumstances don't exist and you need to do that. A person can expressly consent to give their blood.
That's all it does. It brings it in line with the case law and I'll be happy to take any questions. Senator Ballinger. Thank
Chair
Unverified
1:17
you, Mr. Chair and thank you, Representative Dalby. I probably should have read the bill, but how does that work? Like, where and when do they get the consent? Well, it could be at
Representative Carol Dalby
Unverified
1:26
the scene of the accident. This is typically going to be when there's been a death or a near-death accident. It could be at the scene of the accident.
It may be on the way once they get to the hospital, those kinds of things.
Speaker 11
1:37
Okay, just sets up a mechanism for them to have. Yes, there would be a
Representative Carol Dalby
Unverified
1:40
mechanism, but it's going to have to be expressed. Can't be implied, that kind of thing. All right, thank you.
Senator Terry Rice
Unverified
1:57
Other questions from the committee? Senator Ross? And not on this bill, but this brings to mind on the one we did that had to do with farm equipment.
Do you happen to know if this
was the same thing there? That came after we did the, what is it, DWB? Yes, all that
Representative Carol Dalby
Unverified
2:15
was last session, as I recall. and I can't. Just wonder if there's
Representative Carol Dalby
Unverified
2:21
don't think so. We have from the state police, Ms. McLaren, who is the attorney for the state police, who might could answer that question. I just don't recall, Senator. I'm sorry. I'll find that offline on that. Thank you.
Other questions from the committee? If I could clarify just one thing to Senator Rice's question. This would be in regard to a motorboat or a vehicle accident, but on the farm equipment, we can certainly get that answer. And if that needs to be changed or amended on that side, we would do that also. Other questions from the
Senator Alan Clark
Unverified
3:00
committee? Seeing none, do we have anyone to testify for or against? Seeing none, what's the pleasure of the committee?
Motion do pass from Senator Johnson, second from Senator Ballinger. Any discussion? Seeing none, all for the motion signify by saying aye. Aye. All opposed?
Anyone? Bill has passed, Representative Dalby. Congratulations. Thank you, Mr. Chair. Thank
Representative Carol Dalby
Unverified
3:30
you, members of the committee. Okay,
Senator Alan Clark
Unverified
3:35
we will move on to Senate Bill 197.
And members, you have two handouts to go with SB 197. 7. And I, Senator Stubblefield, I am going to take leave of the chair to present the bill, and you are the senior member in attendance. May I
have the handouts emailed? They have already been sent,
Senator Alan Clark
Unverified
4:13
Senator Flowers. They've emailed them to me?
Unknown speaker
4:19
Emailed and texted. Okay, thank you. Thank you.
Senator Gary Stubblefield
Unverified
4:54
Senator Clark, you recognize to present Senate Building 197. Thank
Senator Alan Clark
Unverified
5:17
you, Senator Stauffield, Mr. Chair, members of the committee. with Senate Bill 197, you have two handouts. One are my talking points, which I will go
over, and the other is the Fourth Amendment of the Constitution of the United States. This bill is new, but it
has a longer history. I first ran a bill on civil asset forfeiture in 2013, my freshman session, and that was my first stakeholder meeting on a bill.
The prosecutors wanted to meet with me, and we met right up in the room above our heads, and there were right around 10 prosecutors in the room, and the first thing I was asked as a freshman senator was, did I not support law enforcement? I'm sure that at least some of y'all have been asked that in the last few days. And of course, the answer to that is, of course, I support law enforcement. I also support the Fourth
Amendment. I think it's also noteworthy that if term limits had not changed, none of us present today at this committee meeting except Senator Johnson would be here. I'd still be here. if you had
managed that last two years in the house so thanks for the correction
central boundary but what I was assured in that meeting was we we will do the right thing and I think we all feel that way the just There's, you know, I think there's that feeling among the populace. That's one of the reasons we have the Bill of Rights is just leave us alone and we'll do the right thing. But we have laws and we have rules for a reason.
And Senator Collins picked up the gauntlet and ran a bill on civil asset forfeiture in 2015-2017. Senator Hester ran a bill in 2019 successfully, and I thought maybe the issue was put to bed. It wasn't everything that we wanted, but it did quite a bit. However, I found out that that wasn't the case.
So, first I'd like to look at the Fourth Amendment. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrant shall issue upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. The conversations I've had with lots of great prosecutors
over the past few weeks have been interesting because one of the things that's been brought up is, you know, sometimes when somebody's in their parent's car, and that's been brought up as much as anything has been, spouses, et cetera, it's a close call. I don't believe that any legislative body ever intended for there to be a close call when it came to seizure of personal property. Most people, when they think of seizure, they normally think of a drug dealer,
although seizure was in the law before we had it for drugs. And one of the reasons that we have seizure is if somebody is profiting from illegal activity, and they can profit so much in fact that whatever fines we have in place and whatever criminal penalties we have in place aren't enough to actually make a dent in the amount of illegal money that they're making
and so the people that want to give law enforcement a tool that's one of the reasons for this that they could say hey you can't you can't profit off of this. And so they could take the fruits of illegal activity and also the tools by which they made that. But it's interesting that when we get into children and spouses and so on,
and if we got cases, and we do, where somebody has put property in someone else's name, You know, those are certainly legitimate. But, you know, I question, you know, would we charge this person with being an accessory to the crime? Would we charge them with conspiracy? And if we did, would a jury ever convict them? But we're seizing their property and keeping it.
But that's not even what brought this to my attention. What brought to my attention is we have some cases that aren't even close. So I'm going to go to the talking points because we all agree crime should not pay. Police and prosecutors are right to confiscate the fruit of crime. And SB 197 is not soft on crime. It's tough. SB 97 is tough on getting to a fair process to protect innocent Arkansans. Now, this, what I did after waiting on this to be fixed and without my help, was I went to others and said, let's look at the other states across the country and let's just do this right.
I knew that it wouldn't be popular with those that are currently doing it. I said if we've not been offered anything all along this to fix it, and I think the arguments you will hear today are either we don't need to do anything, which I think I can prove quite clearly is incorrect if you don't already know that, or this is the wrong thing, and if it's the wrong thing, fine, what's the right thing? And why has someone not offered that up until now?
It addresses the current barriers to justice, high costs relative to low seizure amount, and we'll get to that. SB 197 addresses the real problem. Size matters. The size is small in Arkansas. Many people think seizures and forfeiture are used only against drug mules who transport hundreds of thousands of dollars through Arkansas. that is inaccurate most seizures are small using forfeitures on small seizures is the cost of big
problems for the innocent for innocent arkansans prosecutors admitted in our hearing uh on this subject that the cost for arkansans to litigate under today's civil process exceed the value of most seizures and those of you who were not able to attend that video is still up on www.arcleg they admitted most cases are in the current process in by property owners default not a court decision because the owner does not join
the litigation this is because the owner cannot afford to answer the government civil complaint in 30 days his failure to answer triggers the default judgment The estimate of what that cost to hire a lawyer to do that was $3,000, but in no case ever less than $1,000. Here are the numbers since 2010. 43% of seizures are less than $500. On top of that, 19% are between $501 and $1,000.
That means 62% of seizures are less than $1,000. So I'll stop right there. 62 percent of seizures cost you more to get back than they're worth even if it's just your property and you didn't do anything on top of that 25 percent of seizures are less than five thousand dollars that means that nearly 90 percent of seizures are below five thousand dollars these low dollar amounts do not
represent the fruit of cartels in fact only five individual seizures since 2010 exceeded 1 million dollars out of the thousands done over the last decade sb 197 does not change how state law enforcement teams with the dea and u.s attorneys to seize from real drug mules that's uh page 28 line SB 197 does not change the proceeds distribution between police and sheriffs, 80% will continue
to go to law enforcement, it only changes the 20%, the bill splits it equally to prosecutors and public defenders. And here's how SB 197 works. SB 197 ends civil forfeiture, it repeals our current hybrid system, which is going to be one of the biggest complaints. They forfeit for the criminal prosecution, but if the property owner answers the government civil complaint, which of course takes a lawyer, and since 90% are less than $5,000 and 60% are less than $1,000, people just don't answer.
They just let the property go. Prosecutors admitted most owners default because they do not answer the prosecutor's complaint. SB 97 replaces the current process with criminal forfeiture process. It builds on the process in North Carolina, Nebraska, and New Mexico. Forfeiture litigation is more efficient because the process is streamlined. The litigation happens right after the criminal prosecution in the same courtroom or same plea agreement before the same judge. It is fairer because it avoids the current cost on property owner.
I have used the example many times because we'll have a witness here today that we had before. that in the same case the the man who was arrested a friend of mine a mechanic and worked on my sea dues many times and anybody's ever had their boats or sea dues worked on knows that sometimes somebody will have them for a month or two before you ever get them back and I said my property could have just as well been seized as anybody else's and one of the reasons that at my property
was every time that he would get out of prison and try to turn over a new leaf, we'd try to help. That's what family
and friends do, is they try to help people go to work. And if my property had
been sitting there, everything else was seized, so I'm assuming mine would have been seized too. And then I would have had to, got a lawyer, and proven that somehow it wasn't being used for crime.
It is fair because it avoids the current cost on the property owner. I said, I've got a problem with me having to pay a lawyer to get my property back if I didn't do anything. Reduces, don't have a problem with the criminal. Let's make sure we have a difference. I don't have a problem with the criminal having to do whatever the criminal has to do
to get their property back. But I have a problem with the innocent property owner having to spend money,
and especially more money than the properties were, to get their property back. Reduces the paperwork and complexity of a two-track system, allows the public defender to serve the indigent who he represents in the criminal prosecution, promotes justice by requiring conviction before forfeiture which brings us back to the fourth amendment but the bill is pragmatic with generous exceptions page 21 line 12 to the conviction prerequisite when the defendant dies is deported abandons property flees or is a confidential
informant it allows state and local law enforcement to continue to work unrestrained on tax forces with the federal government. Page 28, line 30. SB 197 better protects third parties like wives, mothers, and other innocent owner claimants, including community bankers and other secured creditors. It gives innocent owner claimants a prompt hearing. It flips the burden of proof to the government to prove the mother had actual knowledge of her son's use of her vehicle to commit a crime. And SB197 addresses the small size of Arkansas seizures. It stops seizures
of less than $200 in cash and vehicles worth less than $2,000. These are uneconomical for police prosecutors and owners to process. The minimums do not affect any underlying criminal charge, the $200 even might help suspects meet bail. Those are the talking points. I have experts lined up from across the country and across the state. We have people that just had let me know weeks ago they wanted to testify against this bill, and we had nothing
else on the agenda but Representative Dalby's bill, and I thought it would be a good time to air out what people have against it today. And we're going to run out of time later in the session to hear this bill and other bills. So the more you can hear about it now, the better. And so I'll be happy to take questions. And thank you, Mr. Chair. Thank
Senator Gary Stubblefield
Unverified
19:55
you, Senator Clark. Committee members, you've heard an explanation of the bill or any questions from committee?
Speaker 47
20:00
senator ballinger you recognize oh you didn't have a question i didn't have
Chair
Unverified
20:12
a question but i'll go and ask it sorry about that any other committee members have questions well i'll go ahead and say i know you and i actually i know they answered this question but it's probably good to be asked and answered this is not from your standpoint you have to have this or nothing right what you're wanting to do is is get the get the conversation conversation started so you can fix the situations, like I've heard you tell the story about the gentleman that you work with and
his mom and losing the property, that I think anybody can look at that and say that's an injustice. It needs to be fixed. And so your goal is to try to get there. You have what, and probably from a legal standpoint, it's probably a sound bill. It may be a step further than what we're able to take, but your position is you'd like people to start taking this seriously so that that kind of injustice can be created or
Senator Alan Clark
Unverified
21:02
corrected? Yes, Senator Ballinger. You know, I went to people who were interested
in doing something and asked them to write a bill. And I didn't intervene, didn't tell them to do something less or to do something more practical because I'm a very practical legislator. I said, do what you think needs to be done. And, but as you know, we have two big issues here, here, innocent property owners and the small amounts of property that need to be fixed. And if somebody's got something to offer on those two big subjects, I will certainly be listening.
Senator Gary Stubblefield
Unverified
21:46
Senator Clark, I have a question for you, and I was given this scenario. Under this bill, let's say that an
individual was driving down the road in a rented car with $300,000 in cash in a bag in the back of the car. He gets pulled over for speeding. Law enforcement sees the bag. They open it up. Under this bill, can they seize that cash? And the owner, let me add this. The driver says he had no idea or she had no idea that there was money in the back of this rented vehicle.
Senator Gary Stubblefield
Unverified
22:26
other questions from Senator Balancer if it
Speaker 53
22:31
is only speeding could they still seize that I
Chair
Unverified
22:36
mean and that may be I may be asking you this so the prosecutors couldn't address that but it's my understanding that they've got to be actually convicted I think of a felony and I'm not positive but they actually have to be convicted before they're able at least to keep those funds.
Senator Alan Clark
Unverified
22:53
And Senator Ballinger, if they couldn't, we would correct it.
But seizure is two steps. Right. One is actually the taking and holding of property, and the other is the court proceeding. Right. And so the normal citizen, when they hear seizure, is not the court proceeding. It is, can they take it? And the answer is yes. Now, in answer to what Senator Stubblefield asked, if the property if the person driving the car says it's not their property
then uh they're going to have a hard time
Senator Gary Stubblefield
Unverified
23:34
getting it back yeah that's correct any other committee members
Senator Mark Johnson
Unverified
23:41
have questions senator johnson you recognize whenever i was listening to your testimony you said in in the new process conviction has to happen before forfeiture. But you just said seizure is two processes, one at the time
of occurrence and then one after the time of conviction. So how is that different in this new process if you've got to have conviction before forfeiture? They can't seize it at the time
Speaker 68
24:12
that the occurrence happens and they have probable cause they can still seize
Senator Alan Clark
Unverified
24:17
it but there's no forfeiture until after conviction now we have forfeiture completely separate from
conviction it's a civil forfeiture and it's in a different court so and I'm sure you you can ask the prosecutors
how that works all right thank you
Senator Gary Stubblefield
Unverified
24:36
other questions from members all right we have some people lined up to speak against the bill the first one is kurt lang or drug
director mr lang if you'll identify yourself and who you're with for the record
Speaker 80
25:06
is your is your mic on i'm sorry yes mr chairman i'm kirk lane
Speaker 81
25:16
i'm the arkansas state drug director all right
Senator Alan Clark
Unverified
25:20
thank you you recognized to testify mr chairman uh members of committee i'm here today in opposition of this bill that guts the current asset forfeiture statute that
Speaker 83
25:29
we have a statute that has been vetted and built by Arkansas legislature for over 30 years, a bill that intends to remove all safeguards and practices outlined in the current statute that derived by
best practices of checks and balances and audit and evaluation. Changes have been made over the years to the current statute to ensure integrity, fairness, based on judicial guidance from law enforcement, judiciary, and you, the legislatures that represent our Kansas. Asset forfeiture is a powerful tool used by law enforcement agencies against criminal, excuse me, criminal and criminal organizations to deprive them
Senator Alan Clark
Unverified
26:13
of ill-gotten gains through seizure of these assets. Know that
Speaker 83
26:17
asset forfeiture has its roots in ancient practice of governments to defend against piracy and the seizure of vessels and contraband. Today, it is used to disrupt, dismantle, and deter those that prey on the vulnerable for financial gain, including criminal organization, drug dealers, terrorists, and white-collar criminals. It is used to punish criminals, to deter illegal activity, to disrupt criminal organization, to remove tools of trade from criminals, to
return assets to victims, and to protect communities. Narcotics trafficking is the primary catalyst in Arkansas for utilizing asset forfeiture. Narcotic trafficking, both domestic and international, is fueled by assets. Narcotic trafficking is not about public health and welfare or even entertainment. It is about the dollar. Narcotic trafficking is a scourge that continues to impact our families, our communities, state, and country. A continual drug epidemic
that trend from drugs like marijuana, cocaine, methamphetamine, and now opioids. An example of how powerful the monetary lure of narcotic trafficking is today is simply with fentanyl, a drug that we've all heard about currently, that fentanyl is a synthetic opioid that is quickly becoming a leading cause of drug overdose death. It is 50 to 100 times more powerful than morphine, and just milligrams can be fatal.
A narcotic trafficker with a $2,000 or $3,000 investment can purchase 2.2 pounds of fentanyl and turn that
Senator Alan Clark
Unverified
27:57
$2,000 to $3,000 investment into a million-dollar profit. Thus, the profit that fuels and empowers many to spread this poison that damages so many and their family. This bill intends to do away with civil asset forfeiture and recognize criminal asset forfeiture in its design,
Speaker 83
28:19
thus leaving out a vital voice of the people in a judiciary that is necessary. It intends to allow the bartering or settlement of criminal cases based on the forfeiture of the assets seized. This in itself will allow those with assets to go free or have reduced sentence and those without to face the full brunt of prosecution. Our current statute of having a civil and criminal asset forfeiture pathway ensures violators cannot buy their way out of their crimes. Narcotic traffickers are good at getting
around current criminal statutes by placing assets in others' names. Thus, the civil asset forfeiture is actually filed on the asset itself, requiring the owner to provide evidence of ownership and the seizing agency to provide evidence of instrumentality of the criminal act the bill also does not speak to the duties of the arkansas state drug director's office as the repository of all asset forfeiture forms that are served on those where assets are seized it does not speak to the proper service and requirements that ensure that people are properly
notified as required the drug director's office is the repository that collects these forms tracks them, and stands as a repository. A repository that by statute facilitates annual and independent audit that has delivered you, the legislators, as oversight. A repository that provides information to attorneys, researchers, citizens for a variety of uses and transparency. A repository that also ensures compliance of notification procedures and accountability by
design. Arkansas, over the last several years, realizes about 1,300 asset forfeiture cases per year at a value of totaling three to five million dollars per year in seized assets that are adjudicated by the court that we entrust to resolve these matters based on evidence and the guidelines of the current statute. In closing, drugs are the principal cause of crime, severe health issues, decay of society as a
Senator Alan Clark
Unverified
30:30
whole. Many of us know somebody that struggles with
a substance use disorder along with those that struggle with struggles in the family that struggles with them. Too many do not recover, which has led to
Speaker 83
30:45
the painful struggle many times leading to death. In the past three years, Arkansas has lost well over a thousand Arkansans to drug overdoses. Arkansans that were poisoned by narcotics traffickers that preyed upon their addiction for monetary gain. In order to combat and protect Arkansans from this scourge,
we must empower law enforcement to seek out and bring to justice those narcotic traffickers that are the root of this evil. We must provide them with tools like asset forfeiture and laws that allow them to effectively do their job and protect their communities. We must provide them with guidance, training, support, and ensure that these tools are properly used and the rights of the innocent people are protected. Historically, there has been clear evidence that has been presented before this body that our current statute does exactly that.
I would attest that it is a living document and
Speaker 84
31:41
that we should not get it. Thank you. And I'm open to questions. Any questions from committee
Senator Alan Clark
Unverified
31:58
members? Senator Clark, you recognize Thank you, Director Lane and I appreciate your long service in law enforcement You said this was an important tool and I agree
in dealing with criminal organizations Seizures under $500
Does that make a dent in criminal organizations? It can,
yes it can depending on where it leads to, a lot of times an investigation may start at a lower level and build its way up. It's my current understanding that the prosecutors in each county have a design based on their demographics of how much that threshold is that allows it to be seized.
Giving an example, in my county, in Saline County, it's a $1,000 threshold. So depending on the design of what that county is. But we understand that narcotics traffickers don't travel around a lot of times with all the money they have in the world in their back pocket. A lot of times day to day, it's what they have on them or what they have earned that day as a part of that drug dealing business that they have. And so it's important to have that start and that basis and let that
Speaker 83
33:11
investigation carry it on. Many times, a small amount seizure may have led
Senator Alan Clark
Unverified
33:16
to a larger investigation or a larger seizure down the road. But if you eliminate the smaller ones,
then you impede the whole
investigative process. Okay. Investigation and seizure, how does not seizing a couple hundred bucks or a clunker, how does
Speaker 83
33:40
that hinder the investigation? Well, like I said, a lot of times those
Senator Alan Clark
Unverified
33:46
investigations lead into continual investigations or a continued investigation into that drug trafficking organization.
So if you eliminate that smaller seizure, it may not lead you on that path to work up chain
Speaker 83
33:58
of what this person may have actually been doing or may be actually tied into.
Senator Alan Clark
Unverified
34:05
I still don't see the tie between seizure and
Speaker 83
34:10
investigation. Well, seizure is, you're seizing instruments of the crime, and money is an instrument of that crime. Okay. It is that profit of that crime.
Senator Alan Clark
Unverified
34:20
So you seized a couple hundred bucks.
Does investigation not go on, whether you seized 200 bucks or not, because I mean, if the $200 was
evidence, it'd be evidence anyway. Well, I think you're focusing just on the money seized and not the investigation as a whole. If I arrested you because you just sold drugs and you sold me $100 of fentanyl and you had another $200 or $300 on you, then that becomes of what that seized on that one incident. But as that investigation goes forward and to come to find out that you may have assets that may be far and greater than that, that is proof of instrumentality because you don't have a job and your phone records may have evidence of drug trafficking for a long period of time, then not
Speaker 95
35:11
doing that or not being able to proceed with that may damage that investigation.
Senator Alan Clark
Unverified
35:17
No, I don't think I'm confusing it at all, because the one, the $200 versus the million dollars over here, not season one doesn't keep you from season the other, and not season one doesn't keep you from investigating the other. But, and I don't, really, this is not part of my pathway, but since it's something that I'm going after, but you mentioned, and I was sure it would be, about the people being able to buy their way off if we didn't have forfeitures.
Is that not a two-edged sword? You have to define your question. Can people, could it not also be that people, that we
do civil forfeitures for a reduced sentence? No,
I think currently they, from what I understand, they have to be convicted
Speaker 84
36:15
of a criminal offense in those situations where you have a criminal offense and a civil forfeiture. In most cases, the criminal offense is adjudicated first and the civil case is held afterwards.
Senator Alan Clark
Unverified
36:27
I think that is part of the problem, but we will, that it's not, but we will, we'll
ask the prosecutors about that. Okay. The, and the fact that, and that's part of the reason they don't want civil to go away is that then the two are directly connected and have to be. It's the fact that they can use the civil forfeiture in the plea bargaining without a conviction, but it works both ways.
You can use that as pressure, but it also can be, it looks like it could also be, if somebody's going to be completely honest, somebody could get a reduced sentence by agreeing to
let the property go. Well, in answer to your question, as the repository, usually we see adjudication documents from the court after the criminal conviction or the civil case is settled afterwards. That is the majority of what we see coming in.
But I think that the biggest issue, though, comes back to the Fourth Amendment. As important as the fight and the war on drugs is, it's most important, is it not, that your property belongs to you? Well, I couldn't argue
Speaker 84
37:53
with that, but understand that you're talking
Senator Alan Clark
Unverified
37:57
about a document that is vetted by the Constitution, but we also have, in the federal system, we have criminal, we have civil, and we have administrative forfeiture,
far expanding what the state does. So I'm sure in those forms well beyond us as a nation that we invented that properly. But in that, yes, you do. But in the same token, fruits of a crime or instantality of a crime is what we're deferring and not just the
Speaker 83
38:27
money that you're in your or my pocket if we're law-abiding citizens. I
Senator Gary Stubblefield
Unverified
38:38
Mr. Chair. Senator Flowers, you'll have to wait until Senator Clark? I'll defer, Mr.
Chair. Okay. All right. Senator Flowers, you recognize. Thank you. Director Lane, in your
testimony, you mentioned and spoke about the whole process being gutted by this bill that's being introduced. Can you speak more to that and the consequences to the process in the bill that's before us?
Senator Alan Clark
Unverified
39:10
Well, thank you, Senator. I think I did in my explanation, and I pointed out several things that are done away with. One, the repository, the delivery, the transparency when a person's property is seized, how that documentation is handled. how it's kept as accountability, especially to this body, is a big part of that's not even in this bill whatsoever and should be. I think people have a right to know that their property C, they serve with this document, our forfeiture form. It tells them what processes they have to
go and it gives them good advice. It's just not taken and left up for them to figure it out on their own. And I think that's a big issue in forfeiture, or at least it has been, in the legislative body before, because our legislative body has fixed a lot of those problems
Speaker 107
40:06
in there. But that is just one of the issues that this
bill doesn't represent whatsoever. So, it sounds like the due process rights of the individual whose property is seized
might have serious issues or at least the ability to have due process under this bill. Would that be a correct statement? Yes, ma'am. In that instance, it
Senator Alan Clark
Unverified
40:33
would. And, you know, that's why I said our current statute has been built with 30 years of expertise of vetting. It's probably been in the legislative Legislative session, as long as I've known or been involved with the legislative session,
it always has come forward with some issue that has always ended up being resolved. I know from my training formerly as a law enforcement officer, my training has changed with asset forfeiture because of what was decided in legislature. And we have built a tremendous model, a model that a lot of other states look at. We don't have problems, a lot of problems. We do have some problems, but a lot of those problems are still waiting to be adjudicated. And we're still waiting to resolve, and we entrust our judiciary to make good decisions based on the evidence.
That's why they're in the
Speaker 108
41:33
position that they're in. Thank you. Thank you, Mr. Chair. Thanks,
Speaker 52
41:41
Senator Flowers. Any other committee members?
Senator Alan Clark
Unverified
41:45
Senator Clark? Yes, Director, do you believe, from what you just said, that citizens now find the system understandable, that it's very clear to them how? I believe so, yes. You think so? Okay.
And the problems that you think are here that are not addressed, I'm sure you would help us address those, right?
Absolutely. And have you approached me before today about any of those problems? I think you and I have talked in years past. About civil asset
Speaker 89
42:24
forfeiture? Yes, sir, we have. Okay. But since this
Speaker 84
42:27
bill was filed? Not since this bill was filed. I was under the impression, I was notified that this bill was filed as of yesterday. No, bill's been, I'll let Mr.
Senator Alan Clark
Unverified
42:35
McMahon will know how long the bill's been filed because he told me the next day that the prosecutor's going to testify against it. So he can give us a better idea of how long the bill's been filed.
Senator Gary Stubblefield
Unverified
42:48
Okay, thank you. Senator Johnson, you're recognized. Director Lane. I'm
Senator Mark Johnson
Unverified
43:00
going to assume a process such as this has been in place in Arkansas since the founding of enforcement. Am I correct in that? You know, I've been in law enforcement for 33
Senator Alan Clark
Unverified
43:11
years, and I have known it in one shape or fashion over the 33 years, and that's why I didn't venture to say more than 40 years, because I can only attest to what I know.
Speaker 121
43:22
so in testimony and then you know in his opening statements he goes to the fourth
Senator Mark Johnson
Unverified
43:30
amendment but in the fourth amendment is warrants and probable cause and that's what enforcement acts upon is that true at times and uh if you didn't have probable cause whether you had a thousand dollars on you as a person or three hundred
thousand dollars in a duffel bag law enforcement
Senator Alan Clark
Unverified
43:55
wouldn't act on that would they they might uh based on the current statutes and training a lot of it's your training that comes in to be able to describe that but it all comes down to the court weighing the evidence and what the officer's testimony is and the evidence that's before them. So I think going back to your question and your question before that you gave if you had an amount of money there. Yes, it can be seized, but can it be forfeited?
Maybe not, depending on what the officer articulates. He or she describes how that's instrumentality of the crime. But, I mean,
Senator Mark Johnson
Unverified
44:37
if they were speeding and there There would have to be probable cause for other investigation inside
the vehicle, wouldn't there not? There would be. Thank you. Thank you, Senator Johnson.
Senator Gary Stubblefield
Unverified
44:58
Any other questions from committee? Senator Clark, you recognize. One last question,
Senator Alan Clark
Unverified
45:01
Mr. Chair. So is it your position, Director Lane, that civilized forfeiture law in Arkansas does not need to be changed? I think it does not need
to be changed does it stand to be tweaked at times when problems arise yes sir and that's been the track record but does it need to be changed
now does not, not in the form that you have it does it, wasn't, my question wasn't
in the form that I have it, my question was does it need to be changed I
Senator Gary Stubblefield
Unverified
45:39
would say no then thank you by the way So, Mr. Lane, this bill was filed 16 days ago, 16 days
Senator Mark Johnson
Unverified
45:51
ago. Senator Johnson, you're recognized for questions. Well, I'll follow on with the Fourth Amendment. Do you know, or this may be a prosecutor's question, has this been our process now been adjudicated on the Fourth Amendment
or the individual's rights being violated through the Fourth Amendment in our current process? I think I'm going to defer to the prosecutor on that. All right. Thank you, Director Lane. All right. Any
Senator Gary Stubblefield
Unverified
46:28
other questions from committee members? All right, Mr. Lane, thank you for your testimony. Thank you, sir. Next, we
Speaker 137
46:33
have Mr. Rosenzweig, Jeff Rosenzweig, to testify for the bill.
Speaker 140
46:36
If you'll cite your name and who you're with. Jeff Rosenzweig, Arkansas
Speaker 141
46:53
Association of Criminal Defense Lawyers. The question I think that the committee just needs to look at ultimately is going to be this. Is the state or local authorities, are they going to take people's money when they're not convicted of a crime?
Senator Clark pointed out that there are two steps to the process. One is taking it, the seizing, and then the second step being forfeiting or keeping the money. Certainly, if you're investigating someone and you come across something which you think might be an instrument of a crime or fruits of a crime, it's one thing to take it, log it in, appropriately document it.
But while Mr. Lane's investigation is proceeding, and let's say it turns out to be a dry hole, there's nothing there, are you going to keep the money? Even though you can't prove anything, you've got the wrong person, you've got an innocent person, you've got a small amount of money for some reason. And the policy thing that Senator Clark is trying to get at is just, are we going to take money from someone whom the legal system did not find to be guilty? Or take property of someone that
the legal system to not find to be guilty. Now, exactly how you get there from a standpoint of civil forfeiture versus criminal forfeiture, when you do it, obviously, that can be tweaked or rewritten. Senator Clark's bill does it in a way that protects these people, protects the The secured interest protects the innocent owner of property.
And so this will, the adoption of this bill, the passage of this bill, will have the effect of getting rid of a lot of the abuses that currently infect the system, particularly with the small amounts of forfeiture. And I'm happy to answer any questions. All
Speaker 142
49:07
right, committee members, any questions? Mr. Rosenzweig, I have
Senator Gary Stubblefield
Unverified
49:17
a question. In the case that we heard last fall of the lady over in Hot Springs where her property was seized,
even though she had nothing to do with
the crime, her property was seized, and they kept it for a period of time, and then she was sent a stack of papers to fill out, and because she left off or didn't see in the small print the part about being notarized, her property was sold. She was unable
Speaker 141
49:49
that the intent of this bill is to protect those kind of people? Yes, it's to protect people who, in fact, are innocent,
who have not been convicted of anything, maybe not even being charged with something, and to allow and to require the conviction of the defendant, of a particular defendant, before you seize the property. If this person is not a defendant and criminally convicted, then the state would not be able to
Senator Alan Clark
Unverified
50:31
Senator Clark, you're right. Mr. Rosenzweig, in order to protect the innocent people's property from being seized and forfeited, being really the part
we're talking about, does Arkansas law
Speaker 141
50:54
need to be changed? I believe so. So, in other words, so you don't have innocent people who have to run, well, run the obstacle course of the paperwork that Senator Stubblefield referred to.
But secondly, the question is, just as a matter of ultimate policy, do you want to take money or property from people who are not convicted of an offense? Thank you, Mr. Roosevelt. Thank you, Mr. Chair. Next, we have Mr.
Senator Gary Stubblefield
Unverified
51:28
Sipes from the Association of Chiefs of Police. If you will
Chair
Unverified
51:37
identify yourself and who you're with, you're recognized.
Speaker 149
51:43
Thank you, Mr. Chair. I am Gary Sipes, and I'm the Executive Director of the Arkansas Association of Chiefs of Police. Thank you, committee. And I thank you, Mr. Clark, for trying to do some things to correct what you see as a problem. First of all, I really didn't know how I was going to address the committee with this bill. It's so lengthy and really it just changes the whole works. But I decided I'd start off by, back in the 80s, I worked for the North Florida Police Department
where I started my career. And for about 20 years, I worked undercover. And I cannot recall an instance. I do remember one of the forfeiture, the seizures and civil forfeiture came about. Couldn't give you the date, but I can remember when it came about because when we arrested a drug suspect, the biggest thing that they were concerned about was their funds and if you asked one of these individuals if they would be honest with you if
they would talk to you they would say i would ask them are you going to get out of this now that you've been you've been caught they'd always nine times out of ten they would say no because it's too profitable and that's absolute truth whether they have five hundred dollars or whether they had $100,000. That money, the almighty dollar, is what was important to them because they can get more drugs, but the money, I mean, they live by the dollar. That's the only way
that we're never going to beat the war on crime, but we can slow it down by taking their funds. I can't recall ever seizing property that wasn't seizable. We always worked the prosecutor and attorney's office. They were always advising us what to seize and what not seize. And as a matter of fact, it's a lot of paperwork to seize funds or property
of an individual. We have, in several cases, we may have picked up the property that belonged to another, but we were always diligent in returning that property. Mr. Rosen, Swag, and I have faced off in court before, and any defense attorney, and it's their job to do, if they can't beat a good case, like I made hand-to-hand buys. If they can't beat that hand-to-hand buy in court, then they're going for a technicality. And Mr. Rosen-Swag
has beaten me a few times on technicality. Therefore, the way this reads, if they're not convicted on a technicality, they're going to get the property back. So, again, I represent the chiefs of Arkansas, and they're all opposed to this, that responded to my question, whether we stay neutral or oppose, and we're very much opposed to this. All right, thank you, Mr. Seitz. We have a question for Senator Johnson.
Senator Mark Johnson
Unverified
55:10
Mr. Seitz, so just what you said, so the
conviction you don't think should incite the forfeiture. Do you think the presumption of guilt is enough to take those assets?
Speaker 149
55:32
Yeah, the current bill or the statutes as they read now are very sufficient. Like someone said a while ago, there's always
anything that can be tweaked. We'd be happy to sit down with you, Mr. Clark, if you would like to get a group of chiefs to come in and discuss this, we would certainly do that. I mean, that's what
Senator Mark Johnson
Unverified
55:55
I heard. I mean, I'm coming from, you know what I mean, a fly on the wall perspective, but, you know, the conviction, you said it was, you know, you would like to be able to seize on the presumption rather than the conviction.
Speaker 149
56:14
Well, if you've ever been in a court of law on a drug case and you've made the hand-to-hand buy, yes, there's too many ways that these defense attorneys, and again, that's their job, to get these folks off on technicality. Thank you. Senator Clark, you have a question? I do.
Senator Alan Clark
Unverified
56:44
because you raise a really good point. You
were undercover. You made the drug hand-to-hand buy. You know it's a drug dealer. So in that case, we should seize the property and go through forfeiture, right? Correct. Okay. Let's take a
different case. You're not there. You don't know. Not found guilty. Am I drug dealer?
Speaker 156
57:28
I mean, the way you just described it, that's not practical. But it is practical. I'm not found
Senator Alan Clark
Unverified
57:34
guilty. Who decides? Well, I can't make an arrest
Speaker 156
57:41
unless I'm there. So I really don't understand your question. If I make
Senator Alan Clark
Unverified
57:48
an arrest, then I find drugs. My question is, you were there, and you're giving us an eyewitness, and I'm saying, okay. But I'm saying, but taking that further with the Fourth Amendment, Fifth Amendment, et cetera, is, let's go to other cases.
Am I a drug dealer? Does the system have the right to take my property? Does the state have the right to take my property? because somebody
Speaker 149
58:18
in the system says I'm a drug addict. There's not a way for an officer to make that arrest unless he has
Senator Alan Clark
Unverified
58:26
the probable cause to arrest. So probable cause then is where we're at on guilt then,
Speaker 149
58:42
not being found guilty. if an individual is arrested in those drugs money or whatever is in the proximity of one another
Speaker 156
58:54
then yes it's seasonable property so you're here to represent the chiefs of
Senator Alan Clark
Unverified
58:59
police and what you're presenting is that we should be able to take citizens property because of probable cause we made an arrest so therefore uh the state should be able to take their property
Speaker 156
59:13
If they're committing a crime, yes, sir. But the court said they weren't. On the technicality, yes, sir. That's what I was referring to. I know what you're
Senator Alan Clark
Unverified
59:24
referring to, but we're coming back to the rule of law. And I'm saying that you're saying, because are you telling me that nobody, that nobody in the state of Arkansas has ever been arrested outside the bounds of the rules? Nobody's ever been arrested without probable cause? No, I can't answer that. Well, if I had you under oath, I'd ask you this question, and I'm going to ask you anyway.
Do you know of anybody ever being arrested without probable cause? Probably,
yes, sir. Yeah, you've been in law enforcement a long time. Got lots of friends here in law enforcement. So love them all, but you're no more perfect than the rest of us. So people are arrested without probable cause,
and so somebody is arrested without probable cause, And so then, but we seized a property because there must have been probable cause. You see where I'm going? I think so, yes, sir. So it's just, it's back to what I was told eight years ago, trust us.
Speaker 149
1:00:22
Is that what I'm hearing? You should be able to place law enforcement, yes, sir. We cannot help that there are bad
Senator Alan Clark
Unverified
1:00:33
apples. No, sir, we cannot. And so, and let's
come back to forfeiture itself. itself. My salesman, there's a debate within the type of things that we do. Some people don't pay by commission. Some people do pay by commission. And one of the arguments on that is you work by commission. People have more of an incentive to maybe pressure sell
things that they don't need. I don't necessarily agree with that. But it's there. I definitely agree with the premise so and when when law enforcement's being especially drug task force which I very much appreciate are being funded by asset seizure and forfeiture is there not an incentive?
Speaker 149
1:01:22
Mr. Clark are we not? I want to say this this was a calling for me. I get offended when someone tries to shade that, but it's a calling
for most. And for these, nobody hates a bad cop worse than a good cop. And you've got 99% of the law enforcement are good. And we can't. That's all I'm going to say about it. Yes, sir. I
Senator Alan Clark
Unverified
1:02:01
agree with you that there's nobody that hates a bad cop
more than a good cop. I would move the percentage down to 98.5, maybe. But nevertheless, they
exist. And you've known some. Sure. Sure. And that's part of why we have laws. But
you don't believe that anybody should be put in prison without a guilty plea? Correct.
Speaker 149
1:02:35
But you do believe that we should forfeit property without one? I do believe that the current statutes are workable. They have been workable for over, like Mr. Lane said, 30 years. I think they are workable. I mean, if we've had one instance where a person's property was mistakenly or taken purposely, maybe something needs to be tweaked, but the whole statute does not need to be changed.
Senator Alan Clark
Unverified
1:03:07
But the reason that we don't put people in prison without a finding of guilty, what's the reason for that? What's the reason of what? That we don't allow people to be put in prison without a finding of guilty. It's called the justice system. There's a basic foundation of our law that we would rather let the guilty go free than the innocent. be punished isn't that the basic foundation yes sir but when it comes to forfeiture
Speaker 149
1:03:42
the same thing doesn't apply i'll stand by what i've said the current statute works it has worked in the past and if there's one one situation what your friend you're referring to happened i think there is other ways to go about rather than changing it totally and do you think there's only one. I don't know
Speaker 163
1:04:09
of any. No, sir. Thank you. Thank you, Mr. Chair.
All right. Any other committee members have questions? I'd like to make a motion to limit the debate.
Speaker 167
1:04:33
We have a motion to limit. What do you want to
limit it to? Five minutes for each witness. How many witnesses do you have left, Senator Stubblefield?
Ten more, Senator Flowers. So if we could, limited five minutes per witness. It's 1038 now by my clock. So five minutes for each witness I would move to limit the debate to. All right. That motion is
Senator Gary Stubblefield
Unverified
1:05:02
non-debatable. We have a motion to limit the debate to five minutes. Per witness. Per witness. All those in favor? Aye. All opposed? No. All right. Your motion fails.
Speaker 174
1:05:19
Thank you. Ms. Tackett, Patricia Tackett. Ms. Tackett,
Senator Gary Stubblefield
Unverified
1:05:30
if you would go to the end of the table and identify yourself
for the record. My name is Patricia Tackett. If you want to go ahead and sit
Senator Mark Johnson
Unverified
1:05:48
down there and make sure our mic is turned on. I'm here because Alan asked me, and my property was taken.
Senator Gary Stubblefield
Unverified
1:06:02
You want me to just tell my story? Yes, Ms. Tackett. And if you would, you don't have to, but if you want to take your mask off so we
Speaker 174
1:06:15
can hear you, that's fine. But if you don't have
Senator Mark Johnson
Unverified
1:06:20
to. I need to. All right, thank you. yeah just tell just tell us your story well I have another house that's two houses from where I live the house I live in and I had let my son live in it and I was up there pretty regular
pretty often. He had been on drugs off and on, and of course I did my best to try to keep him off of them. He had a real bad arm, had a motorcycle wreck, and he just had to work what he could. He had a mechanic on boats and motorcycles and sea doos and whatever he could, so I was letting him live in the house. I wasn't charging him any rent. It
wasn't his house. It was my house. And one morning my neighbor woke me up and said something's going on up at the other house up at Rick's there. They are cops and SWAT teams or whatever all over the place. So I went up there and they had, was in the house, going through
the house and all, and had him and a friend outside, sitting on the edge of a vehicle there. But they wouldn't let me in, let me know where near. Of course I told them, you know, well this is my house. And anyway they told me that I couldn't get in. I couldn't even park there
in my own driveway. And then I saw, I went around and turned around and come back. They had half the roadblock. And I saw another vehicle go right up into my backyard there, and they didn't stop him. But anyway, I turned around and came back and went back to my house, which was just two houses in the railroad track,
between my two houses there. And so then I I was just sitting on the porch watching in the road back and forth and then I saw my camper coming down the road on the back of somebody's truck and I was right there close. My house is pretty close to the road and you can see the road and I went running out and
hollering, hey, hey, stop. Where are you going with my camper? And I said, what are you doing? He said, I'm working. He stopped because it was a railroad track there and he had to slow down. And he did talk to me. He said, well, I'm working. And I said, well, that's my camper. Where are you going with it? And he just drove on. And then here come my Bronco, which my son had taken it up there just to work on it. It had belonged to my husband and I, and so they took it too.
And then here comes a boat, you know, and my husband had built that boat. I had sold it to my daughter-in-law, and of course she never paid. I gave her a bill of sale and an IOU to sign so that she would pay me later, and she went ahead and got the title for it.
So the title is in her name, but I still have the title because she gave it to me. anyway, then he had a boat and there it went too. So anyway, I questioned, you know I went up there then and talked to who all was left after they, there was a detective there and he was real nice and he talked to me and of course they boarded up my house and my stuff
I never did get a chance to get back. I tried. I called the task force in different places and told them, you know, why did they take my stuff? My son, they didn't get anything of his except the truck. He didn't have any money. He didn't have any they said he was drug dealing, but I didn't know it.
if I had known it, you know, I would have put him out. I knew he did drugs, but I never knew he was selling them. And I, like I said, I thought he was off of them at that time. He had been working and, but he never made enough money except just, you know, to I guess support his habit, but I mostly helped him with, I'd pay the utilities sometimes and because
it was in my name they wasn't his utilities, but I didn't see why my stuff should have gotten taken. Of course they took him to jail and he hadn't been found guilty yet. That's this almost two years ago now. But anyway I'd sure like to have my stuff back. I didn't see any reason they should have taken and I had the camper it was fully loaded to go camping or to go to the woods if I wanted to
live in the woods. I had survival food. I had just everything you can imagine in there. So it would cost me quite a bit of money for them to take my camper. And the old Bronco, it was a 69. And it's just like a family heirloom. It wouldn't run, but Rick always liked to tamper with it. We'd had it since he was like 13, 14 years old. And my husband
died 17 years ago. And I just kept it there. I told my other son he could have it and Rick Rick warned it, but I gave it to David, my other son, and he passed away two years ago. So it was still on my property, he never took it, you know, it was still there. And then after he had died, Rick took it up to the other house and was tinkering with
it, seeing if he could get it started and get it running, because as far as worth, I'd been offered, you know, quite a bit for it because it's antique, but not running, you know, wouldn't be worth that much, but it sure was a lot of sentimental
Senator Gary Stubblefield
Unverified
1:14:10
value to me. Ms. Tackett, would you share how you tried, did you not try to regain
Speaker 180
1:14:17
possession of your property? Well, I did everything I knew to do.
Senator Mark Johnson
Unverified
1:14:22
I kept calling the task force and I kept contacting
and the detective, Schumer, Spicener, I can't remember his name right off. And then I got a letter in the mail, and I didn't understand it. I filled it out to the best of my knowledge. I thought it was saying that it's going to give me my stuff back. And so I just filled it out. And by forfeiture, I thought they meant that they had taken my stuff and that they was going to give it back to him.
So I guess I filled it out wrong, according to what a lawyer told me later on down the road. And then my son kept telling me, well, they can't sell our stuff and your stuff until I go to court. And to this day, he still hadn't been found guilty. He's still in the county
Senator Gary Stubblefield
Unverified
1:15:20
jail. Is it not true that you wrote a personal letter, and on that letter you listed the VIN numbers and all the identification numbers of the property it was taken?
Yes, and said it was mine. And because you left off not getting that letter notarized, was that the reason that your letter was discounted
Speaker 179
1:15:41
and your property was... I don't know. Nobody ever
Senator Gary Stubblefield
Unverified
1:15:44
told me anything. Nobody ever gave you a
Senator Mark Johnson
Unverified
1:15:47
reason as to why they sold your property? And the only one that told me they sold my property was a court-appointed lawyer of Riggs. When I was asking him, I asked everybody I knew along, and I'd even told Alan about it.
And I didn't do anything wrong, I don't think, but I didn't realize that I needed a lawyer to help me with that piece of paper. I just thought, it's my stuff, they're going to give it back. You know, they didn't have any reason to take it. It didn't have anything to do with drugs. or I'd had the camper down at my house, and it had a leak in it.
And my son might have been a drug dealer, but he sure was a help to me. He took my camper up there and tore the whole end out of it where it had rotted from one leak on one end and had rebuilt the end of it. And that's what it was doing up there at that time. But it was my house anyway, so I didn't think anything about
Chair
Unverified
1:17:05
it. All right, committee members, any questions from committee members? Senator Johnson, you're recognized.
Senator Mark Johnson
Unverified
1:17:10
Did they sell your house also, not just your
Speaker 195
1:17:14
camper? No, they gave me a chance to
Senator Mark Johnson
Unverified
1:17:18
get my house back. They boarded it up and I had to pay a fine. And they told me if I'd pay the $250 to the city attorney office, this was the detective I was working with. It's the only one that I really got to work with through all this.
And they said I'd have to go to court and pay $500. But if I'd go talk to the city attorney, then I could get off with just paying the $250 to get my house back. So about five days later, they took the boards off my house and gave me my house back. I'll
Speaker 197
1:18:06
follow up, please. So your real property and your personal property was treated differently?
Speaker 202
1:18:13
Yes. Thank you. Senator Rice, you have a question? Who told you, who revealed to you that you had to
Senator Terry Rice
Unverified
1:18:30
pay $500 or down to $250 to get your house back? And what was the reason that they did it? Because they said it was used for a crime. Okay.
Speaker 25
1:18:43
I've got other questions for other people. any
Senator Gary Stubblefield
Unverified
1:18:53
other question from committee members thank you Ms. Tackett for your testimony Senator
Senator Alan Clark
Unverified
1:18:59
Clark so was that a criminal fine was what now the $250 was that a criminal fine I don't know I
Senator Mark Johnson
Unverified
1:19:07
just paid it you know I wanted my house back so I just did what they told me to do
Senator Alan Clark
Unverified
1:19:15
I said I'd have to go to court otherwise. Pat, do you think everybody understands the law on civil asset, seizure and forfeiture? I
Senator Mark Johnson
Unverified
1:19:27
don't. I couldn't understand that, but I just did what they asked me to do. And
Senator Alan Clark
Unverified
1:19:36
the trailer was yours? Yes. Then the Bronco was yours, titled in your name? Oh, it's the title of my husband's name, but he was deceased.
Senator Mark Johnson
Unverified
1:19:46
How long had it been since the Bronco ran? Rick had maybe messed with it every couple of years, you know, and got it running a little, but it
Chair
Unverified
1:20:07
several years. All right, thank you. Senator Johnson, you're recognized. Had your
Senator Mark Johnson
Unverified
1:20:14
son, Rick, had previous convictions, drug convictions? Yes, he had been in and out of jail and prisons from,
I don't think he'd ever been in there for selling, but he had been for being caught with
Speaker 121
1:20:31
drugs. How many times would you assume that he's been throughout
Senator Mark Johnson
Unverified
1:20:39
the years until this time? Oh,
I couldn't keep, I never kept up with him, but he started out, you know, on marijuana back years ago, and I didn't have any part in any of it.
I wouldn't allow it, you know, in any
Senator Gary Stubblefield
Unverified
1:21:08
of my houses. Thank you. Any other questions? Senator
Senator Terry Rice
Unverified
1:21:16
Rice. Did you ever talk to the prosecutor or request to talk
Speaker 204
1:21:23
to the prosecutor? The one that's prosecuting this his case now? Yes. No, I did talk to a
couple of people that might get me an appointment with him. And so the ones
Senator Terry Rice
Unverified
1:21:39
One of the ones that you relied on to
Speaker 214
1:21:42
about to get your property was the drug task force connections. And I couldn't reach them. I went to
Senator Mark Johnson
Unverified
1:21:50
the courthouse and they said, you know, there's a right over there and I knocked on the door. There wasn't anybody there and I went way out by the museum. Somebody told me they had a place out there.
Speaker 213
1:22:04
So nobody that seized your property gave you any instructions at all
Speaker 216
1:22:08
on how to process it? No, other than when the
Speaker 216
1:22:18
him. He was just a wrecker driver, is that correct? No, he
Speaker 216
1:22:25
Okay, but was he just a truck driver, not part of law enforcement? He didn't have
Speaker 204
1:22:29
anything on his truck. Okay, thank you.
Senator Alan Clark
Unverified
1:22:34
Senator Clark, you, Ray, can ask for a question. I'd just like to answer Senator Johnson's question because I'm not Rick's mom. And I don't want to sugarcoat anything. But this is part of the problems with these things. You know, what she's been told, you know, Rick's been a continual problem for law enforcement over the years. And I don't
have any doubt that I want to be careful and not guilty of slander.
But I would be surprised if he had not been in prison for selling drugs. But, again, back to what family knows and what family's involved in is two entirely different things. But I'm sympathetic with law enforcement. But you're coming back to a mother and grandmother who doesn't know and, you know, you're
expecting a drug dealer's making money, not his mother paying his rent and his utilities.
Senator Gary Stubblefield
Unverified
1:23:45
Any other questions from committee members? Ms. Tackett, thank you for coming and testifying. Thank you. We have Greg Parish now from the Public
Defenders Communications. Mr. Parish, you can be able to identify yourself with a record. Thank you, Mr. Chair.
Speaker 221
1:24:16
My name is Greg Parish. I'm the Director of the Arkansas Public Defender Commission. And in full disclosure, let me advise the committee In my prior life as a deputy prosecuting attorney, I did asset forfeiture for several years back in the 90s under former elected prosecutor David Butler, who's now deceased. And I've also served as a director of a drug task force in the 13th district. So I'm fully aware of what we're talking about here from personal experience. And I will tell the committee, I'm not opposed to the bill as a whole, only as it applies to my agency.
I think there are some good parts in the bill, but that's for others to discuss, not me. What needs to be pointed out, I think, is Arkansas presently has two types of forfeiture statutes, as we stand here right now. We have a contraband forfeiture statute that is located at Arkansas Code Annotated 5-5-301. And this current bill discusses what contraband is.
Speaker 222
1:25:23
It's not always money or a car. We also
Speaker 221
1:25:32
have the drug asset forfeiture statute, which is at 564.501 and following, because 564.401 is the Arkansas Controlled Substances Act. And what follows in 501 deals with forfeitures. And over the years, that has been tweaked. And so with pointing that out, I'm just going to tell you my concern with the bill, and
Senator Clark is fully aware of this, from my standpoint. On page 13, line 8, specifically under 5-5-602A2, it moves these cases from the civil realm to the criminal case. Right now, if there's a forfeiture proceeding, you have the criminal case and you have what's called an in-rem proceeding
filed in a civil court. And typically it's two different judges. I like it that way because as public defenders, we don't touch the civil case. there's no chance of incarceration no loss of liberty we should not be involved in that whatsoever in 5-5-603 on page 13 line 28 again it gives the criminal court jurisdiction over the
forfeiture. On page 18, line 8, at 5-5-614, it permits counsel. And so, here's what I expect we would see. I represent a defendant on a criminal case who also, under the new bill has a forfeiture that is part of the criminal case. This bill allows the prosecutor
to come to me, and I'm not saying they would, but potentially, and say, okay, here's the offer. Three years probation, forfeiture of the car. My client doesn't want to forfeit the car okay three years adc i am then put in a position that i've got to advise my client about an asset that i have no interest in whatsoever i should not have an interest in that
asset and i should not be representing him with regards or her with regard to that asset But because in 1687-306, which is the public defender statute, it says I'm only involved in cases, except in one instance, and it's not this, where liberty is at stake. Only liberty. And so if this bill gives me, as the director also, the
Speaker 220
1:28:44
authority to authorize counsel with regard to the forfeiture.
Speaker 221
1:28:50
however if I'm in the criminal case and this is the criminal case with the forfeiture I'm in it for all purposes for instance you go hire an attorney to do a divorce and you have children that attorney should not it would not tell you okay I'm going to represent you on the grounds for divorce but you got to get you another lawyer for custody i'm not touching that
i get all the issues i don't just i don't get to pick and choose and i would not get to be able to tell that client i don't represent you in the forfeiture i would have to advise that client it also in 5-5-618 it allows to be part of the plea agreement as i've stated and that is on page 20 line 36 then at page 28 line 3 5-5-631 it allows for disposition of the
proceeds which is good it allows for the payment of attorney's fees but it puts us at number six in the list behind towing and storage and I'm not saying my agency benefits from this it would be the state but it also talks about in there that I would say we need to be real careful about the term overtime is used in that statute as far as salaries
and benefits now as I read the statute the only person that can bring a forfeiture action as a prosecutor or help prosecutors designee that's the only one that can bring it I couldn't bring a forfeiture statute a forfeiture request on this are we gonna start talking about overtime for full-time state employees that is part of our job I think we better be real careful with that I have a concern that
this language also could conflict with the rules of professional conduct model rule 1.5 where it talks about fees and so what I would do if this bill passes is that I will tell this committee I'm not going to mix the two we've worked too hard to separate the two but I would ask for an additional attorney for every
district and that's all that attorney is going to do in that district is asset forfeiture they can advise the client and when the prosecutor comes to us and says here's the plea offer subject to forfeiture my response would be is this public defender will talk to you about the criminal case this public defender talk to you about the asset forfeiture. And so that keeps us out of the money business as criminal lawyers. There are there are numerous other parts of the
bill that I really like. I'll say that but that's not for me to decide. I'm only talking about how it affects my agency. That's all I have
Senator Gary Stubblefield
Unverified
1:32:28
and I'll take any questions. Mr. Parrish you discuss your testimony was mainly about the first party. What about the second
Speaker 221
1:32:35
party like the lady that just testified? I can only tell you how we did it. When we would file something, if there was a lien holder or someone who we knew had an
interest in it, they would be named as well. For instance, there's numerous times we would seize a car that GMAC would have a lien on or something. And we would recognize that lien, but I would also put GMAC on notice when we return that property. You now know that this property that you're getting back as a lien holder is alleged to have been used in illegal conduct. If you
give this back to that party that you have a contract with and it's again used in illegal conduct, we're going to seek to void your lien because you're now on notice that that vehicle is being used to transport drugs, sell drugs out of, whatever the case may be. Senator Rice, you have a question?
Speaker 202
1:33:43
From your aspect, the testimony we had where she had to
Speaker 152
1:33:48
pay a fine or I don't know if it was a court
Senator Terry Rice
Unverified
1:33:52
fee or what. But regardless of what you think, there's nothing in a conviction. So it is a not guilty party that owns private property that somebody is renting or staying in and and they have done illegal activity, while they may not be adjudicated,
they may have past history that still puts them in jail, should the owner of that property not have what you just said about that car company, the opportunity to be on notice not to allow the property back in the hands of somebody that might be doing illegal activity. Why did this lady have to pay to get her property back?
Speaker 221
1:34:56
I'm talking about the house. Sure. I'm going to have to make a couple of assumptions, Senator Rice. My first assumption is it was presumed that she had notice of his illegal activity based upon his prior conduct that has been discussed here. I don't know what it was, if he's been convicted of anything in the past. And so entrusting your property to somebody that you know has criminal conduct in their past, you're really taking a big risk. I mean, it's like loaning your car to somebody who's had two DWIs in the past.
Is that a good decision? Probably not. The money that she's talking about, I have no idea what that is unless it's a housing violation or something on the premises since she's the owner. Rubbish or something. I don't know. there is a criminal statute called maintaining a drug premises but it's a felony and so I really doubt that's what she was cited for I suspect since it's
district court she was probably cited as the owner of the property for not keeping the property up
Speaker 211
1:36:08
thank you Senator Johnson you're recognized Mr. Parrish, I
Senator Mark Johnson
Unverified
1:36:16
mean, in all the testimony we've heard so far, do you think it would be a good process to keep them separated, the civil and the criminal, but the civil to be dispensed after the criminal?
Well, if the criminal conviction happens, then the civil action would depend on the criminal. And what kind of delays would that cause? I mean, I know you're talking about district court and circuit court, but what kind of backlog or process would that cause in the courts if those civil assets were not dispensed or done until after a criminal conviction occurred?
Speaker 221
1:37:06
It's a double-edged sword, Senator. First off, you look at the items. Could it be spoilage? If there's anything there that's contraband that could be spoilage, then you've got to move faster. What about the innocent owner? Asserting an innocent owner claim. But I will tell you that, and it has changed over the years, the feds, because I spoke to them a couple of days ago, now make this part of their criminal indictment. It is part of their, much like this bill does, because I spoke to, there was a lady that
I worked with back in my past year, she's now retired, so I called the U.S. Attorney's Office to speak to someone else to see how it had changed. But they're real limited in what they take. I mean, they're not, they're going to take the $300,000, they're not going to take the $300. dollars. We're not going to do it. I see benefits both ways, because when I was doing asset forfeiture, if I knew these items were subject to forfeiture and we took them from you, I'm going to file the civil action, and along with the civil action, I'm going to hand you
a notice of deposition, because I can depose you in the civil action. I can send you interrogatories in the civil action. And what I'm going to see is if that person has an attorney, they're going to do one of two things. More than likely, they're going to default. They're not going to answer because they don't answer my questions at her deposition, which will take place a lot faster than the criminal case will. Or they'll try to invoke their Fifth Amendment right and stay the
civil proceedings. I mean, stop them until the criminal case is over with. More times than not, they default. Now, make no bones about it, when there's real property, the law as it stands right now says there has to be a conviction anyway before you can forfeit real property as it stands right now. And so, yes, there would be a delay on that real property, you'd have to have a conviction. Likewise, unless it's changed, the
contraband forfeiture statute that I told you about earlier only deals with about six or seven crimes and it requires a conviction before forfeiture. It likewise names in the in that statute, it's kind of been amended, it's it's thrown in the offense of continuing a criminal enterprise and that's typically associated with drug dealing. Fortunately, I think, unless I'm wrong, there's only been one CCE case tried at the state level that I'm aware of, and
Mr. Butler was the lead prosecutor and I was second chair. I don't, that's usually left to the feds, typically. Now,
Speaker 222
1:39:59
if some other prosecutors tried that case, that's news to me. Thank
Senator Gary Stubblefield
Unverified
1:40:05
you. Any other questions from members? Senator Clark? Mr. Chair, I
Senator Alan Clark
Unverified
1:40:16
don't have a question. I just want to thank Mr. Parrish for coming and visiting with me about his concerns.
Senator Gary Stubblefield
Unverified
1:40:24
Thank you, Senator Clark. Thank you, Mr. Parrish. Next, we have William Bryant. Colonel Bryant, Do you want to go up to the end of
Speaker 228
1:40:49
the table and identify yourself? Good morning, Mr. Chairman. Bill Bryant, Director of the Arkansas State Police. You're recognized.
Speaker 230
1:40:54
Thank you. First of all, I just kind of want to give you a little bit of my background. I've been in law enforcement for 45 years. I started in 1976 as a local police officer, and then in 1984, I went to work for the Drug Enforcement Administration. I was a special agent and spent 30 years with the Drug Enforcement Administration, whose main job is to investigate and arrest major drug trafficking organizations all over the world. 20 of my 30-year career was here in Arkansas.
Since that time, I also became the director of the state police. I've had seven years, coming in my seventh year, as director of the Arkansas State Police. I think it's very important to know that, to me, again, I'm in opposition to the bill, but the civil asset forfeiture is a major tool to disrupt and dismantle drug trafficking organizations. That really hasn't been addressed much, but the civil asset forfeiture, the level of proof is different. It's preponderous of the evidence. and where a criminal forfeiture is beyond a reasonable doubt, okay?
And drug trafficking organizations exploit the law. They do. And I'll get into a few examples, but, you know, during my career, especially with DEA, 30 years of interviewing and arresting drug trafficking members of cartels, smaller organizations, the number one thing drug traffickers hate is losing their money Because if you think about it, when a drug trafficker is involved in smuggling the drugs across the border, distributing it, and then finally get to their proceeds of the money, they've done all the work.
So they expect to lose loads of drugs, okay? But what's very difficult for them is losing the money, okay? So, you know, civil asset forfeiture has been a huge tool for law enforcement. You know, and the drug cartels are very smart. They know not to mix the drugs and the money. They want to keep that separate. So a lot of times what you see, especially here in Arkansas, these drug trafficking organizations,
what they will do is they will use vehicles with hidden traps in the car or, you know, conceal the drugs in different compartments in the car, bring it up here to Arkansas, give it to the cells that distribute the drug trafficking, but they'll use that same vehicle with the hidden traps. Like a trap, I'll give you an example. You might have to have your air conditioner on high and your flasher's on and your left blinker, and they might have a hydraulic thing under the front passenger seat where it'll raise up
and it's a hidden compartment and they put it down. They make it very difficult for law enforcement to try to find the seized currency. But then they smuggle the bulk currency back to Mexico, the cartels do. But they're very smart enough to know that you don't mix the drugs and the money because that makes it easier for the forfeiture because you have the crime, the cocaine, methamphetamine. Methamphetamine is the number one drug problem here in the state of Arkansas. So, you know, they want to keep that separate.
So that's why civil asset forfeiture is very important to us. And what we've seen, we have the interstate criminal patrol team that works, you know, we have interstate 30, we have interstate 40, we have interstate 55 here in the state. You know, the general motoring public uses, but also the drug cartels use it to transport their drugs. But what we see is, especially, you know, if we have a vehicle and we get probable calls to search that vehicle and we find this, nine out of ten times they'll go, I don't know whose money it is, I don't have a clue, I just want a receipt for the money, because if they go back to Mexico without a receipt that that money was taken, they're going to be killed.
A lot of them will sign a disclaimer, and I'm no lawyer, and I'll defer to the prosecutors, but I think in the current bill that says you will not be allowed to sign any waiver. So I'll leave that up to the prosecutors whether that would be a disclaimer or not. you know our focus is not a money grab for law enforcement especially for our interstate criminal patrol team our job is to disrupt and dismantle drug trafficking organizations so if i say senator rice that we stop him he's got a half a million dollars in his car
all right we'll seize the money but our goal is to try to link senator rice into other members of the organizations or other cartels or whatever the organization is it's just not a money grab for law enforcement. But I want, you know, I felt like I need to educate the committee how these drug trafficking organizations work. We hurt them worse when we take their money from them because they've done all the other process. And I think a couple things. I think Senator Clark brought up a good point. And I think as far as these smaller forfeiture things, you know,
what I have done as the director of the Arkansas State Police, because historically I looked and we seized $5.80. Why do we do that? So now we have a policy where it's got to be $1,000 or more. And if it's under $1,000, we have to get the prosecutor's permission. So I think that's one way law enforcement can address this is through a policy issue to avoid these small forfeitures. But two, some of these small forfeitures, what Director Lane testified to, again, I don't mean to pick on Senator Rice, but he's a drug dealer,
and I'll buy an eight ball of meth off of Senator Rice. And he stopped down the road later. We take that money and see that it might be the buy money. So that's why some of the times of the money that sees might be from a buy. But at that time, we chose not to arrest Senator Rice, you know, for his activities. Because sometimes you always try to make a better prosecutable case. You might do one, two, three buys and then see if we can determine if Senator Rice takes the money over to Bill Bryant, you know, who is the main source of supply.
So it's different than investigative techniques. But, you know, that is one way I agree with you on that point. A policy issue, I think we could fix that. I think law enforcement can fix that. I think it's very important, too, that I think state police has done an outstanding job is if we seize money, you know, we make sure we have probable cause. Because what our interstate criminal patrol team does, and I have the figures here for you, a lot of times we'll stop these cars and they have a lot of money. But if we don't have the probable cause to seize the money, we give it back.
I'll give you, for example, in 2017, we did not seize $128,843. And that was off of one, two, three, four, five, six different stops. One of them was $90,000. We don't have the probable cause to seize it. We don't seize it. 2018, the total on that was $140,730. 2019 was $66,955. In 2020, it was $250,000. You know, I think law enforcement, we need the probable cause to seize the money. I think it's very important we do that, we follow the law, and then, you know, again, I'm just afraid the way the bill is written, these major drug trafficking organizations will exploit this because, again, I think civil forfeiture asset, again, is preponderance of the evidence.
these organizations split the drugs and the money and we stopped these money load cars so it's very difficult without civil forfeiture to be able to seize that money and I think the current law is effective and fair you know each person does have due process rights and I'll listen to this lady's story and I don't know all the facts or whatever but I know during my career and I remember I think it was 1986 when federal forfeiture came first came because I was only an agent a couple years federal asset forfeiture. But anytime it's an innocent third owner, you know, I would always
make sure, or third party, that we had clear and convincing evidence before we seized that. Again, I don't know the facts of the case. There's always two sides to the story, but I'm just telling you from my experience, I would make sure that, you know, it's clear and convincing evidence when it concerns seizing money, you know. And two, I can assure you the state police, you know, our budget It does not depend on asset forfeiture money, although we do, when money goes through the process, because it is reviewed by a prosecutor, it's reviewed by a judge, they have the right to appeal that,
but once that money is forfeited, that does come to use of law enforcement. I know we're one of the only really law enforcement agents in this state. If I spend any drug asset forfeiture money, we have to give quarterly reports to peer. We're reviewed by the legislature of every asset forfeiture dollar that we expend. Examples, you know, we bought pistols when we went from 45 to 9 millimeter. We also bought bulletproof vests. So, you know, that is there, but that's not the sole determination of this statute.
It's to disrupt, dismantle drug trafficking organizations. Again, I would, you know, my suggestions after hearing Senator Clark and some other is, I think law enforcement could set policies to avoid this, you know. I'm trying to think the critical way but you know some things like
Speaker 232
1:50:14
they talked about seizing you know I don't see I don't see anything that eats and poops you know that's not a
Speaker 230
1:50:22
good thing you know livestock cattle any of that stuff but really the majority of our stuff is off the
interstate from these drug cartels and I just don't want to see them exploit this upcoming proposal. Again, I would like to work with Senator Clark. It's probably on me. I haven't talked to him before, but he knew I testified against this bill last time. But those are some of my
Speaker 232
1:50:45
suggestions to the committee to entertain, and I'll be glad to take any questions. Any questions from committee? Senator Clark.
Senator Alan Clark
Unverified
1:51:00
My last bill was eight years ago, so
Speaker 232
1:51:02
I don't really remember. No, sir. It might not have been your bill, but it was Linda Collins. It was here in this
Senator Alan Clark
Unverified
1:51:14
room, and I sat right in the same chair, I believe. Yes, sir. You talked about law enforcement setting policies. Why should the legislature, in conjunction with law enforcement,
not set those policies in law? I believe each agency is
Speaker 230
1:51:28
different. By far, I think we seize more than any law enforcement agency in the state
only because of these cartels on the interstate. But each individual is different. I have 550 personnel where Walter and Petey, I'm not sure how many they have. But I think each law enforcement agency can do that step up in policy instead of having to do it by statute. I've testified in other committees where I've had legislators said, do I need to change the law? And I'll go, no, sir, we can affect this with our policy. So I think that's an easy step for law enforcement to take. I would agree.
Speaker 232
1:52:04
I thought that eight years ago. But why hasn't that happened? All I can testify is my agency, and that's what I
Senator Alan Clark
Unverified
1:52:22
took care of. And I think you bringing this to the forefront, it's good. And you said something I really liked. And by the way, Colonel, I appreciate your service in law enforcement all these years and your experience. The third-party forfeiture, we'll set aside the seizure, third-party forfeiture, clear and convincing evidence.
Speaker 230
1:52:44
Why wouldn't that be good to be in the law? I think it is. You know, in the civil process, it depends what the manuals are or how you do it. I think different policies say that. But, again, I don't know the deal. I think Mr. Parrish brought up a good point is a lot of times, GMAC, if we seized a car and it had dope in it or, you know, they had a lien on it, next time they do it, same thing. If I catch you driving a rental car, I'm not going to go seize the rental car
because that's an innocent third party. But on the other hand, and what I've seen, unfortunately, is and this i'm just speaking generally i've seen where relatives parents or whatever might put things in nominee names or and they know they've been in trouble you have to use great caution if you're over there and again this is i think my understanding is an ongoing case so i don't want to speculate or whatever but if they have knowledge or you know or willful blindness you can't go i know you know he's not dealing drugs so i again those are the kind of things we look at but i'm
just telling you personally the steps that I take, especially when I was a DEA agent as director of state police, we make sure that it should be clear and convincing evidence why we seize money or things like that. I mean, that's why the system is reviewed by a prosecutor and a judge. The judge sits up there and he reviews the facts and evidence of this case on the civil forfeiture. He makes those decisions. So we do have some stopgap
Speaker 232
1:54:15
measures, checks and balances, And that's why I like the system that we have now.
Senator Alan Clark
Unverified
1:54:22
But the system that we have now does not have clear and convincing evidence as the standard for third party. Well, again, again, we
Speaker 232
1:54:32
talked about it's the preponderance of the evidence is just let me finish, please. There's a preponderance of the evidence, but the judge, that's the that's why we have judges. They decide the evidence, and that's my terminology, clear
Speaker 230
1:54:48
and convincing, but again, it's just like, do you have probable cause for a search warrant?
Do you have this? That's up to the determination of the judge, not
Senator Alan Clark
Unverified
1:55:06
in my opinion. Are you done? Yes, sir. Because of another bill, we've been educated on the difference between preponderance of evidence and clear and convincing evidence lately. and we know that it's not just your term, it's a legal term, then they're very different preponderance of evidence. It's just slightly, one just outweighs the other,
just slightly clear and convincing, we're told, requires expert testimony. So I don't necessarily agree that it takes expert testimony, but they're two entirely different standards. standards uh and so you said and i agreed with clear and convincing evidence you said that you would uh third party that be that there would have to be clear and convincing evidence why should that not be the standard for every department again uh i
Speaker 232
1:55:57
think that would be up
to the legislature i mean that y'all make the laws
Senator Alan Clark
Unverified
1:56:03
and we enforce the laws and that was Back to my question, from the legislature, why should that not be in the
Speaker 232
1:56:11
law? There would be different arguments, but I mean, my opinion, I'm fine with that. Thank
Senator Mark Johnson
Unverified
1:56:22
you. Senator Johnson, you have a question. So the procedures
on those third party, could you speak to notice that is given to those third party people in your state police?
I mean, she's like, felt like she was hanging out there without any notice, except for this piece of paper that came to her, and she was concerned about that personal property and the real property. I mean, that would seem a very good departmental policy to have, you know, a good dialogue between that third party and you're, you know, for the agencies.
Speaker 232
1:57:08
Yes, sir. Two things. One, with the state police, I know that if we take someone's property, we give them a receipt. And hopefully, which I think my people do, they tell them, hey, this has been seized. You know, you have the right to
Speaker 230
1:57:23
contest this. You know, if you want to contest it, you, you know, touch base with the prosecutor's office. The other part, I think, Mr. Parrish, from his testimony, my understanding, but law enforcement, it's up to the prosecutor. We seize it. And I'm sure they send notices out to the people that the property has been seized from.
Speaker 232
1:57:43
That's my assumption. But that would be that. I mean,
Senator Mark Johnson
Unverified
1:57:47
that clarification of procedure might be a good thing through this conversation that comes out of it. Thank you. Yes, sir. Any other questions? by committee. Colonel Bryant,
Senator Gary Stubblefield
Unverified
1:58:00
you did say that most of the contraband is being brought in across the interstates. Yes, sir.
Do we still have, are there instances of any of this being brought in by air? And I understand
that's federal, but are there any cases in Arkansas where they brought in
Speaker 230
1:58:17
drugs by air? Yes, sir. Historically, it was more air smuggling, Senator, but the majority of what we're seeing now is just in hidden traps because they use that vehicle to purpose. Again, it's concealed in the car in a trap or a concealed apartment. They bring it to Arkansas. I'll just pick a town. Baseful. They will get that to the cell. That car will wait until those drugs are distributed. And then they collect the money, put the money back
Speaker 232
1:58:43
in the car, and it's called bulk currency smuggling. And then they smuggle it back across the Mexican border.
Senator Gary Stubblefield
Unverified
1:58:50
All right. Colonel Bryant, thank you for your service. Yes, sir. Thank you. Appreciate it. All right, next
Speaker 245
1:58:58
we have Kermit Channal, State Crime Lab. Channal,
Speaker 246
1:59:07
if you'll introduce yourself. Thank you. This is Kermit Channal. I'm the director of the Arkansas State Crime Laboratory. And a little bit different than most, I'm really not here to talk about the merits of civil versus criminal. you know basically I've been a forensic scientist for almost 32 years now and the director for 14
years and I'm not even here to talk about innocence versus guilt because that's not my job but I would just want to point attention to the way the law used to be and the way this changes for my agency specifically in the old statute basically it was 20 percent of everything over twenty thousand dollars would come to the crime laboratory and now it's basically 20 percent of the remaining proceeds after it's doled out. And my only concern with that is, as a state crime laboratory, we're required to, of course, test all these drugs for the entire state.
And so my concern is actually for that funding stream, like, probably not like the rest of the people here to talk against it. But we get approximately $500,000 in asset forfeitures, and that money is specifically to buy the instrumentation that we need to do our job to test those illicit substances, if they are or not. I mean, we've had instances where people have been detained and they've got a bag of white powder and it's not illicit drugs. And so that is my main concern is to making sure that we have an adequate funding stream
actually to be able to support law enforcement and those individuals whose property are seized and who's, you know, when we're required to test that material. Any questions from members? for
Senator Gary Stubblefield
Unverified
2:00:43
Mr. Channel. Thank you for being here, Mr.
Channel. Thank you. Next, we have Rodney Wright, New York South Sheriff's Association. Mr. Wright, if you will identify yourself
Speaker 247
2:01:02
for the record and you're recognized. Yes, sir. Sheriff Rodney Wright,
Speaker 248
2:01:09
Saline County. And I'm here to oppose it for the Sheriff's Association. And Senator Clark is my senator. Part of my county is in his area. And I guess my question, Senator, and I apologize because I just received this yesterday. I understand it was filed 16 days ago, but y'all tend to file a lot of bills. And so I got this yesterday and I read it and I was more confused the second time I read it. And by listening to who's testified so
far, there's obviously some things that could be addressed. And I guess my question to you, Senator, is that I'm your sheriff, Sheriff McCormick is your sheriff, and you didn't reach out to either one of us, as far as I know, and not that you have to, but again, if it's an issue with law enforcement or an issue that needs to be discussed, I would hope that you would reach out to us, and I'd hope that maybe Chris walton my prosecutor could could help you as well um you know by listening to some of the testimony
Speaker 249
2:02:09
that we do need maybe minimums you know in our county it's a thousand dollar minimum um but
Speaker 248
2:02:16
and i'm not saying that that the law doesn't need to be tweaked but i didn't i don't think it needs to be personally have a discussion like this in
Speaker 249
2:02:27
here whereas it could have been done maybe a month ago or two months ago, and we could have maybe had a lot of this worked out prior to coming here. That's my concern, Senator.
Speaker 202
2:02:40
Anyone have any questions? Senator Rice, you
Senator Terry Rice
Unverified
2:02:51
recognize me. You are the current chairman of the Sheriff's Association? I second vice president. Second vice president.
Our chairman's got COVID right now. Did you hear a testimony that this has been brought up in 2013, 15, 17, 19, and now 21? I did.
Do you realize that there is, we represent the people that elect us? Absolutely. If you're continuing to have problems every session, and I support law enforcement, and I hear you're a good one, and I've seen you in committee, and I'll commend you because I've heard good things about you. And I'm not saying anybody is less or bad, but I take a little bit of offense,
and I understand having a local sheriff and a local legislator, but Senator Clark has reached out on this issue. he he's removed himself although he's helped to let others run the bills to try to come to some conclusion and we have not just with any particular organization we always have a lot of last minute stuff that you hadn't met with me you hadn't met with i guarantee the parties that are here today
I know we have a concern from our elected officials, from the citizens that elect us, that we need to work something credible out. And it's not in all areas. We're hearing that this morning. It's good testimony. So I'm a little taken aback because I don't think there's been some good faith effort on some parties to get together and try to work something out. Again, over multiple sessions.
So while I appreciate your concern for your elected official, it works both ways. And
Speaker 249
2:05:02
I totally agree with you, Senator. And I
Speaker 248
2:05:05
think, now I wasn't in office in 13, but I remember 15 and 17 and 19, that there were tweaks to this, correct? There was adjustments to the bill, or to this current law? That's where we're at right now, Senator? There
Senator Alan Clark
Unverified
2:05:21
were bills in 13, 15, and 17.
There was a tweak in 19. Okay. Nothing happened in 13, 15, and
Speaker 248
2:05:27
17. Okay. So I guess what I'm saying is, Senator, is that in 19, there was a reason to be tweaked, and so it did change. And, Senator, I'm not saying that there needs to be done here. Um, I just, because of what I've heard already, I see that there's more concerns than what I've already read. Um, and I hope that we can try to work that out going forward.
Senator Alan Clark
Unverified
2:05:59
Sheriff, and you, I'm sorry. Are you done, Senator Clark? I, I didn't ask to be recognized, but Sheriff, I forgot myself. Senator Johnson,
Senator Mark Johnson
Unverified
2:06:13
you were recognized. I have no
idea which part of Allen's district you're the sheriff of. But, you know, we heard testimony of the lady whose son was, you know, those third party forfeitures. Could you speak to the process of notification or, you know, that's in that civil process,
her being a third party and feeling separated from it. but you know she lost her her personal property she retained her real property because it seems like our you know we can not do dispose of that real property until after conviction so i mean i appreciate the process we have now but also that third party person could you speak to
that or if you're in that district?
Senator Terry Rice
Unverified
2:07:09
Well, I'm not in that district. That's the Garland County in my project.
Speaker 248
2:07:13
Okay. That's the Garland County Sheriff. But, you know, the process right now, and I think the prosecutors are here too, that will help us clarify how that process goes as far as who's notified and who's not. If the process needs to be done better, I think that we should address that. Absolutely. If we need to make sure that the people who receive the paperwork understand it absolutely we need to do better and we need to fix that but i don't think it
needs to be i don't think the whole bill needs to be scratched and then and start it over i think we can do just like we did in 19 tweak what
Senator Alan Clark
Unverified
2:07:57
needs to be fixed thank you sir thank you senator clark you recognize thank you mr chair
sheriff thank you for being here and thank you for the job that you do and the well-deserved reputation you have. In answer to your question, to my knowledge, and again,
I don't know what we can expect citizens to know when state senators don't know. But to my knowledge, law enforcement is part of this seizure. I didn't, I'm really not aware that law enforcement had that much to do with the forfeiture, which is where, because the seizure's not my, you know, when you're there on the scene, whatever,
you know, if you seize everything, I'm not complaining, because you, you know, you've got a job to do, you don't know, it's what we determine later, and so that's why my my visit because certainly Mr. McMahon has been very aware of my concerns for eight years. And so I did not mean to leave you out in answer to your question, nor would I have
disrespected you or Sheriff McCormick, who as far as I know
was not involved in the other. And I have purposefully not named the county, because I think very highly of the prosecutor in that county, and that's why I don't think this is a one-off. I don't think, you know, I've been on this subject for some time, and not only do I not think it's a one-off, because I think very highly of the prosecutor, I also don't think
it's a one-off because as we talk about the what people know and notification, etc., is I called early. I go to church with this woman and have since I was 12 years old. I called early in the process and said, these two pieces of property, there's lots of pieces of property there, but these two pieces of property are her. What do we need to do? I'm state senator.
What do we need to do? And I don't think that the prosecutor wasn't trying to help me. Okay? And obviously, I don't understand the process. Okay? Because, you follow me? I mean. It's very confusing. Because I don't know.
I think Ms. Howell would help me. I think the one in Garland County would help
me. I think you would help me. But somehow, an innocent third party ends up losing their property. And I said, I've said there was a problem since 13.
There's a problem. And I think it's a good discussion to have. And I went to the people who were interested, you know, and they wrote a complete overhaul. And that certainly got everybody's attention. Absolutely. But because as you have expressed, there may need to be changes. There do need to be changes. And this is not a lack of respect for law enforcement. It's not a lack of respect for our prosecutors. It's saying that if we have people that are being hurt and there's Fourth Amendment issues, we need to fix it.
And, you know, and I talked to a prosecutor of a distant part of the state last night. And we talked about possible ways to fix this. And I'll be glad to sit down with you and others on possible ways to fix this other than this bill. Because that's what we always do. and you and I worked together on 9-1-1 and I loved you because you were just honest and I like honest people. But wouldn't you agree that if there's tweaks
that need to be done, we do need to be sitting down and getting them figured out and getting them done? Absolutely, and I
Speaker 248
2:12:07
think you make a good point as far as communication. And I think that's what it boils down to, whether it be from the prosecutor to that third party or whoever the rest of the agency is. It's about communication. And if we don't clarify that communication, that's why we're here right now. And none of y'all would
Senator Alan Clark
Unverified
2:12:24
ever have happened what happened. But it's not the only time it's happened. Because I was told that in child welfare, it's just that one case.
We don't want to do what I did in child welfare and start bringing those cases. Okay? And say, no, it's not just one case. Because we can do that. Uh, but none of y'all would want this to happen, right? I mean, if the facts are as presented, you wouldn't want that to happen. And so what we're asking now in a public forum is, is we're the ones that get called about a problem and a continual problem. And all we're asking is that, uh, is that y'all help us fix it. And we're very open to your ideas. Uh, and that you would
agree with both of those things. Wouldn't you share? Absolutely. Thank you. And thank you.
Speaker 86
2:13:19
thank you for being here. Thank you, sir. Mr. Wright, I have one question for
Senator Gary Stubblefield
Unverified
2:13:22
you. I just want you, if you could explain, do you think, do you think that requiring a conviction before forfeiture is a good thing or a bad thing? Sorry about that. I'm sorry, are you talking to me? Yeah, I apologize. I'm sorry, I let you get away too quick. Do you think that requiring a conviction before forfeiture
Speaker 248
2:13:37
is a good thing or a bad thing. Are you saying dividing up criminal and civil?
Speaker 261
2:13:47
Yes. I think it's good that it keeps it separate. Like the public defender said, I don't think it needs to be in
Speaker 177
2:13:56
the same courtroom or even the same conversation. So separate them and answer the question. Separate the civil and
Speaker 249
2:14:04
the criminal. Well, the criminal, as far as, yes, it should be, if you're convicted, yes.
Speaker 248
2:14:10
And then the civil, I mean, I'm assuming that it would be the same
Senator Alan Clark
Unverified
2:14:22
as guilt, correct? Okay. All right. Thank you, Mr. Clark. Senator Clark, you have a question? Yes, Mr. Chair. I do not want to keep anybody
who has traveled here to testify from testifying. But the committee has been very patient in hearing a very important issue today that I've brought before it. And I know that a lot of us are late to another meeting.
And like I said, I don't want to keep anybody from testifying, but I'm ready to pull the bill down today and with an offer to work with whoever wants to work with me on other solutions. That doesn't mean I won't run this bill. But, again, I'll leave it to the committee because, again, I don't want to keep anybody from testifying, but we've heard a lot already.
Senator Gary Stubblefield
Unverified
2:15:12
All right. Committee, you've heard of Senator Clark's willing to pull this down and work on any issues
with those people who are involved. Mr. Chair? Yes, Senator Flowers. How many other witnesses do you have on the list to testify
five left, Senator Flowers. Well, if the sponsor can't make a decision today as to whether he's going to bring the bill back up or not,
and people have traveled to the Capitol to speak for or against the bill, I guess those all are—it's a mix of for and against that's left to
Senator Gary Stubblefield
Unverified
2:15:56
testify, is it? No, these are—the five left are all against,
speaking against the bill. Well, I would make a motion to limit the debate and allow them to testify for at least three minutes each, and so that at least we can get a fuller debate
and the opposition from those who have traveled to the Capitol. So maybe if the bill is brought back up, they won't have to make
Senator Gary Stubblefield
Unverified
2:16:27
an extra trip. All right. You have a
motion to limit the debate to three minutes per witness. Per witness. All right. That motion's non-debatable. Committee,
all those in favor of limiting the debate
to three minutes per participant, say aye. Aye.
All opposed? No. No. Motion fails,
Senator Flowers. Aye. Senator. Well, the other thing is the point of order, Mr. Chair, if this debate on this bill continues, I would ask that the sponsor limit his dialogue to just questions of the witnesses and not statements. That's an improper motion. It's not a motion.
I would just ask for that point of order. I have not objected, but a series of this dialogue each time with each witness seems to be more of a position stated on the part of the sponsor as opposed to a question. I understand that, Senator Flowers. And I understand this
Senator Gary Stubblefield
Unverified
2:17:38
is a very important piece of legislation
with a lot of people who have traveled a long way to be here. Senator
Ballinger, do you have a motion? No. Okay. Senator Clark, you have agreed to pull the bill down. I have. If there's no objection, if there's no objection from the other committee members, then the bill has been pulled down
for further consideration. Thank you. We're adjourned. I've got to do a big battle. I'm far.
Agenda
Call To Order
SB190 A. Clark TO REMOVE A DRIVER'S LICENSE SUSPENSION OR REVOCATION AS AN AVAILABLE PENALTY FOR OFFENSES NOT RELATED TO DRIVING A MOTOR VEHICLE.
SB197 A. Clark TO REFORM THE CIVIL ASSET FORFEITURE PROCESS; CONCERNING PROPERTY USED IN THE COMMISSION OF AN OFFENSE THAT IS SEIZED AND FORFEITED AS A RESULT OF A CRIMINAL INVESTIGATION.
HB1184 Dalby CONCERNING THE DRAWING OF A PERSON'S BLOOD WHEN A PERSON WAS OPERATING OR IN ACTUAL PHYSICAL CONTROL OF A MOTORBOAT OR MOTOR VEHICLE WHILE INTOXICATED.
ADJOURNMENT
Documents
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| Agenda — JUDICIARY COMMITTEE - SENATE AND HOUSE, Feb 10, 2021 | Agenda | 1 | Official source ↗ |
Speakers
Senator Alan Clark
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Representative Carol Dalby
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Chair
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Senator Terry Rice
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Senator Stephanie Flowers Chair
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Senator Gary Stubblefield
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Senator Mark Johnson
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