If the state can take property without a conviction, no property is safe

By Rep. Ken DeGraaf | Guest Commentary, Rocky Mountain Voice

Civil asset forfeiture began as a narrow exception in colonial maritime law, not as a general tool of domestic policing. In those early admiralty cases, the government often had jurisdiction over the ship or cargo, but not over the owner. The vessel might be in port, but the owner could be overseas, unknown, or beyond the reach of the court. In that circumstance, proceeding against the property itself—an action in rem—was often the only practical way to enforce customs law. 

Justice Neil Gorsuch recently highlighted this history in his concurrence in Culley v. Marshall and asked the obvious question: if the government today has full jurisdiction over the person—if it can arrest, charge, and prosecute them directly—why should it be allowed to permanently take property without first proving the crime? 

That is the question Colorado should be asking as House Bill 1250 moves forward. 

It is important to be clear about what property we are discussing. This is not evidence in a criminal case. Evidence is handled separately under its own provisions in the Colorado Revised Statutes. The property at issue in civil asset forfeiture is property seized for its alleged nexus to a crime—property claimed to be the fruits or instrumentalities of criminal conduct. The state is not holding it because it needs it as evidence; it is seeking to take title to it permanently. 

That distinction matters. 

Civil asset forfeiture depends on the legal fiction that the property itself is somehow guilty, separated from the person and prosecuted in its own right. That fiction made sense in maritime law when the owner was absent and unreachable. It makes far less sense when the owner is standing in the courtroom and the state has full criminal jurisdiction. 

That is why many states are moving toward criminal asset forfeiture—requiring conviction first—because permanent deprivation of property should follow proof of a crime, not precede it. 

In Culley, the Supreme Court did not directly rule on the constitutionality of modern civil forfeiture because that specific question was not before the Court. But the Court strongly questioned whether applying that old maritime exception makes constitutional sense when ownership and jurisdiction are both known. Justice Gorsuch, in particular, made a compelling case that modern civil forfeiture has drifted far beyond its historical and constitutional justification. 

Our job as legislators is to represent citizens, not the state. Our duty is to secure and defend the certain, self-evident, Creator-endowed rights of the people who elected us—not merely to make the trains run on time. Our responsibility is to defend the citizen against the power of the state, not to habituate citizens to the yoke of the state. 

HB26-1250, as amended, is a narrow and deliberate fix to that constitutional problem. It does not overhaul law enforcement, it does not end civil asset forfeiture, and it does not interfere with seizure authority. It closes one loophole: the ability of the government to permanently forfeit property without first securing a criminal conviction. 

Let’s be clear about what this bill does not do. 

HB26-1250 does not alter seizure. Law enforcement retains the exact same authority to seize property during an investigation. 

HB26-1250 does not end forfeiture. If there is a crime, and that crime is proven, forfeiture remains available exactly as it should. 

HB26-1250 does not change abandonment. If property is abandoned, title transfers under current law exactly as it does today. In fact, abandonment is often the largest practical driver of forfeiture revenue. 

What this bill addresses is the narrow loophole where property belonging to the accused—or to an innocent owner whose property was unwittingly used, borrowed, or stolen into criminal conduct—can be forfeited without a conviction. Current Colorado law is clear that “a judgment of forfeiture may be entered without a criminal conviction of an owner.” 

That should trouble every Coloradan. 

If the state can permanently forfeit property without proving a crime, then no property is truly safe. If citizens risk deprivation of property simply because they fail to navigate an arcane civil bureaucracy—at their own expense—just to establish that they intended to keep the property already in their possession, then possession is no longer nine-tenths of the law. It becomes a mere footnote. 

The presumption should be that people intend to keep their own property. The burden should be on the state to prove otherwise—and to prove the crime that justifies permanent forfeiture. 

Prosecutors have pointed out that 99 percent of innocent owner property is returned before trial. If that is true, then it should be easy to agree that the remaining 1 percent should simply be stayed until after acquittal or conviction. If the overwhelming majority is already returned, then requiring conviction before permanent forfeiture is hardly radical. 

What is more troubling is the repeated argument that reform cannot happen because law enforcement depends on the revenue. 

Colorado law is already clear that the purpose of asset forfeiture is to punish and deter crime—not to raise revenue. Yet the principal defense of the current system has been the money it generates. 

That is logically inconsistent. 

If something truly rarely happens, it cannot simultaneously be a critical funding stream. And if that revenue is critical, then we have admitted the system is functioning as a revenue mechanism rather than a justice mechanism. 

Something cannot simultaneously “rarely happen” and also be indispensable to the budget. 

Colorado spends roughly $2.5 billion annually on law enforcement. On-book forfeitures are around $12 million in assets, with roughly $6 million ultimately realized. The 25 percent LECS (Law Enforcement Community Services grant fund) allocation at issue is 25% of that—approximately $1.5 million—a rounding error in the broader budget, but life-changing for the individual whose property is taken. 

Under HB26-1250, that temporary diversion would support indigent defense to ensure due process before deprivation of property—because the Fifth Amendment protects life, liberty, and property. 

That is not anti-law enforcement. That is constitutional government. 

To those who object to the state taking unclaimed property, remember: these are not unclaimed assets. These are claimed properties belonging to people still presumed innocent until conviction. 

Our justice system is premised on the principle that it is better for many guilty people to go free than for one innocent person to be wrongly punished. That principle should apply to property just as much as liberty. 

If there is a crime, prove it. If there is a conviction, forfeiture remains. But if there is no conviction, there should be no permanent taking. 

That is not radical. That is due process.  

Rep. Ken DeGraaf represents House District 22 in northeast Colorado Springs and has served in the Colorado House since 2023. He’s a 27-year U.S. Air Force veteran and pilot, a graduate of the U.S. Air Force Academy and holds a master’s in structural dynamics from Columbia University.

Editor’s note: Opinions expressed in commentary pieces are those of the author and do not necessarily reflect the opinions of the management of the Rocky Mountain Voice, but even so we support the constitutional right of the author to express those opinions.

HB26-1250 was introduced Feb. 18, 2026 as bipartisan legislation by Rep. Ken DeGraaf (R-Colorado Springs) and Rep. Jennifer Bacon (D-Denver). The House Judiciary Committeereferred the bill to House Finance on a 6-5 vote on April 21, 2026, after adopting seven of eight proposed amendments. The bill heads next to the House Finance Committee before any floor vote.

According to Colorado Secretary of State lobbyist registrations, supporters include the ACLU of Colorado, the Institute for Justice, the Colorado Criminal Defense Bar and Rocky Mountain Gun Owners. Opposition includes the Colorado District Attorneys’ Council, County Sheriffs of Colorado, Colorado Association of Chiefs of Police, Colorado Fraternal Order of Police, Colorado Municipal League, Colorado Counties Inc., and the cities of Colorado Springs, Arvada, Brighton, Commerce City and Parker.