Two years ago, Georgia lawmakers reformed the state’s civil forfeiture law to make it modestly harder for law enforcement to take property from innocent people. That 2015 law, which passed the state House unanimously, mildly strengthened protections for property owners and required law enforcement agencies to publish annual reports on their forfeiture activity. But those reforms didn’t go nearly far enough, and neither does a pending forfeiture bill ostensibly designed to better protect property rights and due process.
State representative Scot Turner has introduced House Bill 505, which explicitly states that “an acquittal or dismissal in a criminal proceeding shall preclude civil forfeiture proceedings.” Current Georgia law allows law enforcement to seize private property from people and forfeit it without even charging—let alone convicting them—of a crime. Although HB 505’s language is a good start, the bill would benefit from a more comprehensive approach that curtails abuse and retains law enforcement’s ability to deprive bad actors of the poisoned fruit of criminal behavior, like Institute for Justice’s (IJ) Model Criminal Forfeiture Law:
I. Property may be forfeited if (a) the offense is of a state law felony subject to forfeiture, (b) the offense is established by proof of a criminal conviction, and (c) the state establishes that the property is forfeitable under sections 100:3 through 100:5 by clear and convincing evidence.[…]
III. The court may waive the conviction requirement if the prosecuting authority shows by clear and convincing evidence that the defendant (a) died, (b) was deported by the U.S. government, (c) is granted immunity or reduced punishment in exchange for testifying or assisting a law enforcement investigation or prosecution, (d) fled the jurisdiction after being arrested, charged with a crime that includes the forfeiture of property, and released on bail or (e) abandoned property.[…]
V. Abandoned property shall be delivered to the state treasurer within 30 days without further forfeiture-related litigation. The state treasurer shall dispose of all non-currency property. The sale proceeds and currency shall be deposited into the state’s general fund.
If Georgia enacts such reform, it would join 14 other states in requiring a criminal conviction in most or all forfeiture cases. But to really protect property rights, lawmakers should heed the example of neighboring North Carolina, which abolished civil forfeiture entirely and enacted criminal forfeiture. Under criminal forfeiture, the judge and jury that found a suspect guilty of a crime would also determine whether the defendant’s property should be forfeited because of that crime, and the defendant would be entitled to an attorney. Lawmakers in Nebraska and New Mexico have also implemented criminal forfeiture.
According to the Institute for Justice’s (IJ) “Policing for Profit” report, Georgia earns a D- for its civil forfeiture laws because of its low bar to forfeit property, poor protections for innocent third-party property owners, and allowing law enforcement agencies to keep as much as 100 percent of forfeiture proceeds—which encourages police to treat citizens like ATMs. As an example, the district attorney’s office for populous Fulton County has been embroiled in multiple forfeiture-related scandals over the years, spending thousands of dollars in federal forfeiture funds on everything from a lavish holiday awards galas and alcohol-fueled parties to concerts and professional sports games.
Moreover, if an innocent person’s property gets allegedly used by somebody else in a crime, the innocent owner bears the burden of proving that he or she neither knew about nor consented that criminal activity. Even worse, if the property seized is a car and the person accused of using it in a crime is a co-owner, Georgia law provides no way for innocent owners to get it back. The innocent victim can’t even get compensated for the loss.
But even if Georgia fixes all these problems, law enforcement agents could still get around it. Under the U.S. Department of Justice’s equitable sharing program, local police can invite federal agencies to seize property under federal law and kick back nearly 80 percent of the proceeds. Between 2000 and 2013, Georgia agencies pocketed more than $243 million this way. Lawmakers can close this loophole by requiring state and local agencies to obey state law in all cases, even when federal agencies are involved.
Georgia lawmakers should do more to protect innocent people from the injustice of civil forfeiture.