There’s no doubt that Georgia’s law enforcement officials dislike strings that restrict civil asset forfeiture, which is the power of law enforcement to seize and keep property suspected of being involved in criminal activity. They’ve told legislators that time and again.
For the rest of Georgia, however, it s a problem. Unlike with criminal asset forfeiture, under civil forfeiture the owner of the property being seized does not have to be charged with a crime. Cash, cars, homes and other property can be taken without even filing charges, let alone convicting the property’s owner of a crime.
It’s a cash cow and an incentive for excessive enthusiasm, even abuse, on the part of law enforcement. Why? As an op-ed by Dougherty County Sheriff Kevin Sproul published in the Albany Journal last year noted, “Currently, seized property or cash may be used by the law enforcement agency that made the case against the offender.”
“As your sheriff, I have used such funds to purchase equipment for our investigators, pay for a website to better track sex offenders, repair damage from lightning strikes at the jail, and replace equipment that failed during the year that was not planned for in our budget. … The only other alternative would have been to use funds from our operational budget, which comes from the county’s general fund. Making these purchases using seized funds means that we didn’t have to use tax dollars.”
The sheriff’s concern is “fewer assets being condemned through the forfeiture process, and law enforcement only getting a portion of those that do. Not having that resource for tax-free funding of equipment will require law enforcement agencies to place a greater burden on the taxpayers.”
Georgia’s sheriffs succeeded last year in halting passage of reform legislation, although a watered-down version is still alive this year in the state’s two-year legislative session. The resistance is no surprise: Dougherty County reported seized assets from August 2012 to June 2013 totaled $189,000.
That campaign to reform civil asset forfeiture in Georgia has been led by the Institute for Justice, a public interest law group, along with the Georgia Public Policy Foundation and civil rights groups.
The Institute for Justice was in Maryland this week, testifying in support of reform in that state. The institute testified that current laws have departed dramatically from early laws and fail to provide “adequate procedural safeguards to protect innocent property owners while providing a loophole that incentivizes the seizure of property.”
Mainly, it noted, “in contrast to most of American history, during which the proceeds from civil forfeitures went to a general fund to benefit the public at large, federal forfeiture laws and those of many states allow law-enforcement agencies responsible for seizing the property to keep proceeds from forfeiture.”
Georgia is one state where the property can be seized and held even if it does not belong to the perpetrator of the crime. If the criminal is driving the parent’s car, for example, or conducting drug deals in a home owned by someone else, that property can be seized. And the legitimate owner’s fight for its return can be lengthy and expensive. Meanwhile, the owner is deprived of the use.
Under Maryland’s law, all proceeds from civil forfeiture flow to the state general fund or the local governing body. Under Georgia law, they go to the law enforcement agency. As a consequence, civil asset forfeiture has morphed into a revenue-generating enterprise for law enforcement.
Worse, the process is facilitated because of the lack of procedural safeguards: “Because it is a civil proceeding, civil forfeiture does not provide all the legal rights guaranteed to individuals charged with a crime, such as the right to counsel, the institute said. The individual charged with a crime enjoys the presumption of innocence and the government must prove the crime beyond a reasonable doubt. Property owners enjoy no such procedural protections in civil-forfeiture proceedings.”
If law enforcement agencies maintain that some Georgians must suffer the injustice of property seizure without due process, then all Georgians deserve accountability and transparency in how forfeiture is being used. The central website where agencies are supposed to report the seizure and disposal of assets, however, is often an afterthought and unevenly applied.
Georgia’s legislation would give oversight of the proceeds of asset forfeiture to the state Prosecuting Attorneys Council, tighten the rules on use of the funds and strengthen reporting requirements. Uniform reporting requirements will allow policy-makers and citizens to judge the effectiveness of forfeiture.
The litany of abuse and misuse of the proceeds from civil asset forfeiture and the accounts of innocent victims of seizure are clear signs that Georgians deserve, at the very least, a process governed by transparency and accountability. It was Georgia’s own civil rights icon, Martin Luther King Jr., who warned, “Injustice anywhere is a threat to justice everywhere.”
[Benita M. Dodd is vice president of the Georgia Public Policy Foundation an independent think tank that proposes market-oriented approaches to public policy to improve the lives of Georgians.]