At a news conference at the state Capitol just before the 2012 legislative session began, Georgia Public Policy Foundation President Kelly McCutchen and Institute for Justice legislative counsel Lee McGrath joined forces to call for reform in Georgia civil asset forfeiture
By Benita M. Dodd
Atlanta resident Josiah Neff is so passionate about civil asset forfeiture reform in Georgia that last year he filed suit. One of five plaintiffs in a lawsuit against law enforcement agencies in Atlanta and Fulton County, the software company employee was outraged that the agencies didn’t even bother to comply with state law requiring them to disclose the private property they seized under suspicion that it was used or involved in criminal activity.
Three months later, when the suit went to trial, it took the judge just 30 minutes to rule the agencies out of compliance. But the victory for Neff, who currently heads Atlanta’s Libertarian Party, is hollow for the rest of Georgia: As of publication of this commentary – and despite the lawsuit – just 17 agencies have reports posted for fiscal 2011 on the centralized Web site where the law requires them to disclose the seizure and its disposition.
The lack of transparency makes it difficult for the average citizen to keep track of the millions of dollars a year that Georgia law enforcement agencies get to keep from asset forfeitures. But their minimal compliance with this simple act of reporting is just the tip of the iceberg. The seizure procedure itself is an even bigger problem.
The Institute for Justice, which filed the lawsuit on behalf of the five residents of Atlanta and Fulton County in March last year, declares, “Georgia has some of the worst civil forfeiture laws in the country.”
The institute gave Georgia a D- (one of five states) for its civil asset forfeiture law, which puts the burden of proof on the property owner to show that the car, house, cash, boat or other property are not involved in the crime: a presumption of guilty until proven innocence. The property owner does not have to be convicted or even charged in the crime, and the struggle to retrieve property from law enforcement can be protracted and expensive.
At a news conference at the state Capitol just before the 2012 legislative session began, Georgia Public Policy Foundation President Kelly McCutchen and Institute for Justice legislative counsel Lee McGrath joined forces to call for reform in Georgia civil asset forfeiture.
The issue is not hypothetical, and it is scary. “This issue is more of a threat to private property in Georgia than any other issue,” McCutchen said.
“When you have an innocent owner who has done nothing wrong, hasn’t been convicted of a crime, has not been accused of a crime, and their own government seizes property without compensation, and they have to sue to get their property back, that should not occur in the United States of America and it should not occur in Georgia.”
Or, as Neff sees it, “The whole system is completely backwards and throws due process completely out the window. The fact that police precincts get to keep the assets they seize gives them the worst incentive to ignore violent crimes and focus instead on petty drug crimes.”
Paula Peterson of Alma, Ga., spoke at the news conference. Alma police seized Peterson’s SUV when they charged her daughter and her daughter’s roommate with drug possession. The daughter denied the accusation; Peterson was not involved but it took her five months and an attorney to get her vehicle back.
There is no reason for criminals to keep their ill-gotten goods, as McGrath pointed out at the news conference. But Georgia’s current process is a stigma on law enforcement, a violation of due process and a hardship on innocent bystanders. Too many people find it cheaper to walk away than to hire a lawyer to fight for their right to their own goods.
The Foundation and the Institute for Justice propose several steps to wean law enforcement off the proceeds of seized assets.
- Asset forfeiture should not be a civil process. Nobody should lose their property until convicted of a crime.
- Law enforcement – police, sheriff’s departments or prosecutors – should not profit from the proceeds of criminal asset forfeiture, which should go into the state’s general fund.
- Expedite and facilitate the return of property to innocent victims of the asset forfeiture process.
The National Association of Criminal Defense Attorneys and the American Legislative Exchange Council have adopted model legislation that ensures property and civil rights are protected during the asset forfeiture process. Now it’s time for Georgia’s legislators to take another look at the state’s civil asset forfeiture law and repair this gaping hole. Insist that law enforcement, too, follow the law. And protect the property rights of innocent Georgians.
Benita M. Dodd is vice president of the Georgia Public Policy Foundation (www.georgiapolicy.org), an independent think tank that proposes practical, market-oriented approaches to public policy to improve the lives of Georgians. Nothing written here is to be construed as necessarily reflecting the views 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 (January 13, 2012). Permission to reprint in whole or in part is hereby granted, provided the author and her affiliations are cited.