Civil Asset Forfeiture Reform Gets a Facelift

January 22nd, 2014 by Leave a Comment

By Mike Klein

Mike Klein Editor, Georgia Public Policy Foundation
Mike Klein
Editor, Georgia Public Policy Foundation

Georgia civil forfeiture reform legislation has undergone a cosmetic facelift that might improve its chances for passage but critics are already focused on language which states “an acquittal or dismissal in a criminal proceeding shall not preclude civil forfeiture proceedings.” In effect, you could be found innocent in court but you could still lose your personal property.

An HB 1 substitute was published Tuesday afternoon after the first meeting of the House Judiciary committee chaired by Rep. Wendell Willard who is the bill’s primary sponsor.  The new bill makes significant concessions to prosecutors and sheriffs who essentially shut down civil forfeiture reform effort last year with their strong opposition to proposed reforms.

Civil forfeiture is the concept that law enforcement can retain and liquidate private property for cash if there is reason to believe the property was involved in the commission of a crime.  For example, an automobile that was used during drug trafficking.  Where this becomes problematic is when that automobile – or any seized property – is owned by someone who was not part of the alleged criminal activity and who can reasonably prove they had no knowledge about it.

Prosecutors and sheriffs argued they were not part of writing the original HB 1 that changed the state’s civil forfeiture burden of proof from “a preponderance of the evidence” to “clear and convincing evidence” which is a stricter standard.  The original bill reduced the estimated value of personal property seized from $25,000 to $5,000 for an automatic judicial review.  The HB1 substitute published Tuesday retains “preponderance” and the $25,000 level.  The bill does contain some protections for private parties, including timetables to file for a judicial review if someone believes his or her personal property should not be subject to forfeiture.

“We were recommending clear and convincing evidence as a standard.  We have agreed to come back to the probable cause standard,” said Chairman Willard.  Changes came about after a series of working group meetings this past summer that Willard chaired on behalf of House Speaker David Ralston.  Several prosecutors and sheriffs were included in the working group.

Prosecutors won another concession in how financial assets from civil forfeiture seizures would be held.  The substitute bill creates a Forfeiture and Investigative Trust Fund and it appoints the Prosecuting Attorneys’ Council of Georgia as the fiscal officer.  This section of HB 1 provides very detailed guidance about allowable expenses with civil forfeiture funds (lines 965 – 986).

Annual reporting is another changed area.  Under current law prosecutors and policing agencies are required to file reports with the state, but as the Council for Criminal Justice Reform reported this month, there are no consequences for not filing and confusion over who should file.  Some law enforcement agencies said the responsibility belonged with local governments.

The HB 1 substitute states prosecutors and law enforcement agencies would be required to file annual reports with the University of Georgia’s Carl Vinson Institute of Government.  Agencies that miss filing deadlines would be banned from collecting civil forfeiture funds until the Attorney General’s office certifies they are in compliance.  Any agency that knowingly files fraudulent reports would be banned from receiving forfeiture funds for two years.

Tuesday afternoon’s House judiciary discussion was a congenial affair, much different from a year ago when red-faced witnesses shouted about being excluded from the process and made allegations about people’s personal integrity.  It appears those days are over.  “We believe the bill will move quickly,” said Gwinnett County District Attorney Danny Porter.

Porter served on the 2012 Council on Criminal Justice Reform that changed the juvenile justice landscape in Georgia.  He testified against civil forfeiture reform in the 2013 Legislature.  Now he says, “Prosecutors of the state are satisfied with the changes because we do believe people should know what the money is being spent for and we have no problem with that.  The things we are talking about today are completely different from what we talked about last year.”

Porter said, “We retained a definition of who is an innocent owner, that is, they knew or should have known that the items were being used for illegal conduct, not could have known.”

The Virginia-based Institute for Justice does not like the innocent owner definition.  “A person who holds a (motor) vehicle jointly with a suspect automatically loses her claim as an innocent owner,” said legislative counsel Lee McGrath.  “This means that any spouse or grandmother who jointly owns a vehicle does not even get her day in court.”

McGrath opposed HB 1 before House Judiciary in last year’s General Assembly because he thought the original bill did not provide enough protections to citizens.  “This bill does not substantively change Georgia’s forfeiture law,” McGrath said after reviewing the substitute.  The Institute for Justice will hold a news conference next month at the State Capitol in Atlanta.

The first House Judiciary subcommittee hearing on the HB 1 substitute will be held at 1:00pm this Friday, January 24, in room 132 at the State Capitol.  Prosecutors had representatives in the room Tuesday afternoon but there were no representatives for the state’s sheriffs.

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