A 40-year old man was arrested and charged with several drug crimes and violations, including criminal possession of a controlled substance, criminal use of drug paraphernalia, unlawful marijuana possession, and unlawful possession of fire works.
The accused, despite the absence of the district attorney, was permitted to enter a plea of the crime of possession of a controlled substance, which is classified as a misdemeanor. The DA argued that he is authorized to exercise his right to proceed for forfeiture asserting that such proceeding can be brought against a person not even charged or convicted of any crime. Thus, the DA said, forfeiture against one convicted of a misdemeanor crime is appropriate.
A review of relevant criminal laws discloses that a forfeiture proceeding may be brought for a “pre-conviction forfeiture crime.” The court deduced that the only crime for which a forfeiture may be sought and ordered in advance of a conviction are the felony of criminal marijuana possession in the first degree and the crime of criminal sale of marijuana in the first degree. While the law authorizes the commencement of a forfeiture action before conviction for what are clumsily called “post conviction” forfeiture crimes, which are crimes other than the denominated drug related charges called “pre-conviction forfeiture crimes,” the statute nonetheless expressly provides that a court may not grant forfeiture until the conviction has occurred, the court noted.
The court clarified that relevant laws do not authorize even the commencement, much less the conclusion, of a forfeiture proceeding in advance of a conviction for a misdemeanor, not even a drug-related misdemeanor. The court concluded that the DA could not have proceeded against the accused by way of any type of proceeding for the misdemeanor crime to which the accused pleaded guilty: criminal possession of a controlled substance.
If the remedy of forfeiture is a criminal penalty, the court pointed out two serious constitutional questions arising. First, where there has been a conviction for a crime subsequent attempts to seek forfeiture based upon that crime may be barred by the double jeopardy clause of the United States Constitution. Second, as to that part of the statute which permits forfeiture actions based upon drug offenses, the Due Process Clause may be violated because forfeiture can be based upon only a showing of clear and convincing evidence, as opposed to proof beyond a reasonable doubt, that the drug related crime in question was committed.
The court said it supports the ends which forfeiture proceedings seek to accomplish. However, the court said it does not support it with such zeal that time proven constitutional safeguards can be abrogated. Because there exists constitutional deficiences to the forfeiture proceedings, the court said the issue of whether the provisions governing the forfeiture fail to pass muster under tests established in a catena of similar cases must first be determined.
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