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Help Reform Georgia’s Asset Forfeiture Laws

On February 1, 2013, in states, by Scott Alexander Meiner

Howard Sills, President of the Georgia Sheriff’s Association and Putnam County (GA) Sheriff, has voiced opposition to House Bill 1, the Georgia Uniform Civil Forfeiture Procedure Act. The civil forfeiture reform proposal, introduced by Representative Wendell K. Willard, Chairman of Georgia’s House Judiciary Committee, and co-sponsored by Representative Stacey Abrams, House Minority Leader for the Georgia General Assembly, and Representative Edward Lindsey,  House Majority Whip for the Georgia General Assembly, would overhaul Georgia’s forfeiture procedures by, among other things,

  1. elevating the state’s burden of proof to a showing of “clear and convincing evidence that seized property is subject to forfeiture”;
  2. denying law enforcement agencies access to civil forfeiture proceeds when agencies misuse “property derived or resulting from civil forfeiture actions” as well as deny access to forfeiture proceeds where agencies fail to submit and make public (through the Carl Vinson Institute of Government) annual reports ”specifying the property received during the fiscal year and clearly identifying the use of such property, including the specifics of all monetary expenditures”;
  3. requiring that Georgia law enforcement receiving federal forfeiture proceeds comply with Georgia’s proposed accountability restrictions;
  4. capping forfeiture proceeds paid to district attorneys’ offices at 10% of forfeiture proceeds and limit applicable usage of such payments to the offices’ “trial expenses, victim-witness services, training expenses, travel expenses, and maintenance or improvement of equipment”; and
  5. clarifying and simplifying forfeiture laws in Georgia through a comprehensive rewrite.

These reforms are a good start. Nonetheless, the bill requires a rewrite before becoming acceptable legislation.

Most problematic, in my opinion, is the innocent owner language:

118 9-16-5.
119 A property interest shall not be subject to forfeiture under this chapter if the owner of the
120 interest or interest holder establishes that the owner or interest holder:
121 (1) Is not legally accountable for the conduct giving rise to its forfeiture;
122 (2) Did not consent to it;
123 (3) Did not know and could not reasonably have known of the conduct or that it was
124 likely to occur;

125 (4) Had not acquired and did not stand to acquire substantial proceeds from the conduct
126 giving rise to its forfeiture other than as an interest holder in an arm’s length commercial
127 transaction;
128 (5) With respect to conveyances for transportation only, did not hold the property jointly,
129 in common, or in community with a person whose conduct gave rise to the forfeiture;
130 (6) Does not hold the property for the benefit of or as nominee for any person whose
131 conduct gave rise to its forfeiture, and, if the owner or interest holder acquired the interest
132 through any such person, the owner or interest holder acquired it as a bona fide purchaser
133 for value without knowingly taking part in an illegal transaction; and
134 (7) Acquired the interest:
135 (A) Before the completion of the conduct giving rise to its forfeiture and the person
136 whose conduct gave rise to its forfeiture did not have the authority to convey the
137 interest to a bona fide purchaser for value at the time of the conduct; or
138 (B) After the completion of the conduct giving rise to its forfeiture:
139 (i) As a bona fide purchaser for value without knowingly taking part in an illegal
140 transaction;
141 (ii) Before the filing of a forfeiture lien on it and before the effective date of a notice
142 of pending forfeiture relating to it and without notice of its seizure for forfeiture; and
143 (iii) At the time the interest was acquired, was reasonably without cause to believe
144 that the property was subject to forfeiture or likely to become subject to forfeiture.

The required elements may be read conjuctively, which could lend itself to absurd situations where the innocent owner defense could be denied because the property owner possessed knowledge that some third party was using the owner’s property, without consent, to commit illegal acts that the property owner was actively attempting to deny. Indeed, the unsuccessful effort to deny could be interpreted as evidence of knowledge. Moreover, it should be the prosecution’s burden to prove that the claimant had knowledge–not the other way around.

Secondly, the conveyance clause would allow the state to forfeit vehicles by parties who commonly own title to a vehicle where one party commits an act subjecting their shared property to forfeiture without the other party’s knowledge or consent. That is exactly what happened to Tina Bennis when Michigan forfeited her car because her husband was surreptitiously soliciting the services of a prostitute with their jointly owned car. Why Georgia would want to deprive innocent spouses the availability of an innocent owner defense is unclear–and frankly bizarre.

At minimum, the innocent owner defense needs to be genuinely available to innocent parties. It would be preposterous to pass the legislation with language that would make it easier for the state to forfeit property from innocents. Improvements need not end with the innocent owner language, however. Specificity in reporting requirements would greatly improve the bill. The bill would ideally condition the availability of forfeiture to a conviction–or at least dispose of the language preserving a prosecutor’s second chance at punishing an alleged offender through civil forfeiture after an acquittal in a criminal prosecution concerning the same conduct. Language arguably preserving the availability of forfeiture after constitutional violations should be amended to exclude the availability of forfeiture where law enforcement violate a person’s rights while seizing private property. Language authorizing triers of fact to infer that currency found in proximity to contraband was used, or intended to be used, to facilitate conduct giving rise to the forfeiture is wholly inappropriate and should be deleted. Additionally, the bill could (and should) do more to sever the corrosive incentives that drive the prevalence of forfeiture.

Sheriff Howard Sills is asking constituents to write to their local legislators in opposition to the reforms. While I respectfully disagree with Sheriff Sills on his stance concerning forfeiture laws, I do share his apparent respect for the democratic process. Prior to voting, legislators should be informed of why the laws need changing in Georgia–and particularly what is wrong with, or could be improved upon, their current proposals. So, if you have experienced or know of asset forfeiture abuse in Georgia, or have clients who might be willing to testify for Georgia’s Assembly about their personal experiences with forfeiture, or have criticisms/suggestions, please consider contacting Georgia’s legislators and/or contacting me to help get the information before those who will ultimately decide whether and how to reform Georgia’s forfeiture laws. I may be reached at scott (at) forfeiturereform (dot) com.

The Institute for Justice has evaluated Georgia’s asset forfeiture laws as being among the worst in the United States. Georgia’s forfeiture laws are clearly ripe for reform. And, Representative Willard deserves credit for trying to fix Georgia’s draconian laws. However, HB 1 still needs work.

It should be noted that the Institute for Justice strongly opposes the current incarnation of HB 1 for a number of reasons, including (but not limited to) those discussed above, but are hoping to help fix the bill’s current deficiencies.

 

Grades*
Forfeiture
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Georgia
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Forfeiture Law
Georgia has terrible civil forfeiture laws and uses equitable sharing extensively.  Under state law, depending on the property, the government need only establish probable cause or a preponderance of the evidence that the property was connected to illegal activity to forfeit it.  You bear the burden of showing that the property is not derived from illegal activity or that you are an innocent owner.  Even worse, law enforcement keeps 100 percent of the proceeds from any sales of seized property, which creates a strong incentive for law enforcement to seize property even in situations where it may not be warranted.  And public oversight is limited:  In response to requests, Georgia provided only one year of forfeiture data, for 2001.

Retrieved from http://www.ij.org/asset-forfeiture-report-georgia

 

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1 Response » to “Help Reform Georgia’s Asset Forfeiture Laws”

  1. [...] sheriffs, and fellow legislators to propose amendments to Georgia’s asset forfeiture laws. An earlier reform proposal from GA House Judiciary Chairman Wendell Willard was withdrawn after finding opposition (for very [...]

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