Highway robbery and civil forfeiture

“Highway robbery” brings to mind the romantic legend of Robin Hood and his Merry Men, a righteous group that “stole from the rich to give to the poor.”

It’s also what happens when law enforcement agencies embrace civil asset forfeiture, the confiscation of money and property from people they suspect of criminal activity.

In both instances, someone can be left on the side of the highway without their property – and with little likelihood of getting it back.

Few worry about the people whose property is taken; they’re seen as having it coming: “The money was probably ill-gotten gains anyway; nobody honest carries that much cash.” Plus, it’s out of criminal hands and will be put to good use by law enforcement.

There’s just one problem: In most states, the person who loses property to a law enforcement agency does not have to be convicted of a crime first. Just 16 states require a criminal conviction. Georgia is not one.

It was only in 2015 that Georgia began to require a “preponderance of evidence;” efforts to require a criminal conviction have been thwarted by law enforcement agencies. Legislation introduced in 2021 seeking due process went nowhere.

In fiscal year 2020 the U.S. Department of Justice distributed nearly $6.9 million in “equitable sharing payments of cash and sale proceeds” to Georgia law enforcement agencies. More than $5.5 million was cash. The total distribution for all states in FY 2020 alone was about $244 million. In FY 2019, Georgia’s share was $11,703,818, about $9.5 million in cash.

“This system – where police can seize property with limited judicial oversight and retain it for their own use – has led to egregious and well-chronicled abuses,” wrote U.S. Supreme Court Justice Clarence Thomas in a 2017 case.

“These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.”

In 2021, the Georgia Advisory Committee to the U.S. Commission on Civil Rights is holding a series of hearings on civil asset forfeiture and its impact on communities of color. Speakers include the Georgia Center for Opportunity (GCO), Institute for Justice (IJ) and American Civil Liberties Union (ACLU). Once the hearings are complete, the committee will issue findings and recommendations to the Commission.

In 2015, Georgia’s Legislature beefed up reporting requirements: “Any law enforcement agency, multijurisdictional task force, district attorney, or state agency receiving property and proceeds forfeited … and any income resulting from the sale of forfeited property, including property distributed in kind,” must submit a detailed annual report by January 31 to the state auditor and copy the Carl Vinson Institute at the University of Georgia.

A GCO speaker told the committee his organization discovered many reports were missing, illegible or complete. Agencies appeared confused about who must report. GCO proposed a web-based platform for reports. IJ, which analyzes forfeiture laws in its “Policing for Profit” publication, gives the state an F for its reports. There are consequences for fraudulent reports, not for incomplete reports or not reporting.

The state also gets a D- for its “standard of proof, burden to innocent owners, and incentive for law enforcement to abuse forfeiture.” And, IJ adds, with the median cash seizure in Georgia at $540, “83% of forfeitures aren’t worth the cost of hiring an attorney.”

All that cash adds up, however: An IJ speaker told the committee $108 million in cash was seized at Atlanta’s airport alone between 2000 and 2016, mainly for violations of federal reporting requirements.

Slowly but surely, “policing for profit” is eroding. In 2021 Arizona became the 16th state to require a criminal conviction. Georgia, a leader in criminal justice reforms, needs to be No. 17: Ensure first that someone losing personal property is, in fact, a criminal.

[Benita Dodd is vice president of the Georgia Public Policy Foundation and a member of the Georgia Advisory Committee to the U.S. Commission on Civil Rights. Established in 1991, the Foundation is an independent resource for voters and elected officials. © Georgia Public Policy Foundation (May 21, 2021).]