By Ross Coker
While the discussion and debate over reform for civil asset forfeiture remain ongoing, most Americans still probably do not even know what it means, much less how it is being wielded by law enforcement.
In brief, the concept of civil asset forfeiture is that two different burdens are proof are used to determine if an individual is guilty of a crime and to determine if the individual’s property is “guilty” of being used for the crime. This presents the strange legal fiction where a car, a stack of cash or a house might be “seized” or held under suspicion of being “guilty” just as a person might be held by the police under certain circumstances even without being officially charged with a crime.
Police officers must, of course, have tools at their disposal that allow them to seize the presumed “fruits” of criminal activity. Sometimes the individual whose assets were seized ends up being guilty of the crime. Other times, they are never charged or are exonerated. In any of these circumstances, however, constitutional lawyers have taken umbrage, citing constitutional principles and protections.
Criticism of the practice of asset forfeiture should not be interpreted as to encourage stripping officers of all their ability to do so. Moderate reforms would benefit relations between law enforcement agencies and their communities by fostering trust and making it less likely that all officers are tainted by the perversely motivated seizures of a few bad apples.
As it is now, even in cases when individuals are never charged with a crime, getting their property back is never easy, and sometimes downright impossible. Property is usually held behind an appeals process, sometimes requiring legal representation to get it back, and that could cost more than the property itself. Agencies count on this: Property eventually stays in their possession long enough to auction it off and pocket the proceeds.
Fortunately, both in Georgia and nationally, the issue has begun to gain momentum, and reforms are trickling out. The California state legislature recently passed a bill requiring increased accountability and standards of proof for seizures valued at over $40,000. The amount was a concession to the law enforcement lobby to achieve passage.
Georgia’s most substantial reform, passed in 2015, did not go as far as California’s. Instead of requiring “clear and convincing evidence,” to seize property, the burden of proof requirement remains a “preponderance of evidence,” or 50 percent plus 1. The new law added transparency and reporting requirements and changed how the funds from forfeiture can be spent.
Other examples of recent marked progress and success are Michigan, Florida, and New Mexico. In Michigan, reform gained the support of the state attorney general, who stated that “as a lawyer and as attorney general, I’m in support of these seven bills.” The second part of this statement is singularly significant, as it reinforces what other legal scholars such as John Malcolm of the Heritage Foundation have cited as legal problems with civil asset forfeiture, distinct from policy analysis and opposition to this facet of the justice system.
In 2016, led by a coalition including the James Madison Institute and the Institute for Justice, Florida passed extensive reforms that included a tougher burden of proof and greater protections for individuals. New Mexico’s reform law, which requires a criminal conviction before seizure, made headlines recently: A supposed loophole in the law allowed Albuquerque law enforcement to seize a vehicle in a DUI-related case; it claims the law is not applicable to the city. The city is now being sued.
As for the progress that Georgia has made on the issue: Transparency requirements are an encouraging first step. But the law and policymakers need to go further, judging by recent examples of failure to comply with such requirements, such as the New York Police Department claiming that analyzing how much it has seized would crash the database and is therefore impossible. New York’s continuing struggle highlights also the need for an understanding of and respect for the changes by officers.
Heritage’s Malcolm proposes perhaps one of the more effective solutions to implement such a cultural change: Pool money from seizures at the state level then redistribute it based on metrics beside what department made the seizure.
His proposal bears in mind the nuanced, valid, concerns raised by law enforcement. It addresses head-on the core issue of perverse incentives. Without reform that works against a direct and literal profit for law enforcement – with or without an accompanying conviction – the temptation will remain, even when law enforcement does not succumb to it.
In Georgia, attempting to keep a spotlight on civil asset forfeiture through transparency measures is a good beginning. Another worthwhile step is to move the conversation and education forward on a national level. Conscientious policing of our communities requires mutual respect and understanding. Civil asset forfeiture in its current state is a stone in Georgia’s shoe, hobbling the state’s progress.
Ross Coker is Director of Research and Outreach at the Georgia Public Policy Foundation, an independent think tank that proposes market-oriented approaches to public policy to improve the lives of Georgians. Nothing written here is to be construed as necessarily reflecting the view of the Georgia Public Policy Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.
© Georgia Public Policy Foundation (September 29, 2016). Permission to reprint in whole or in part is hereby granted, provided the author and his affiliations are cited.