Besides awesome football, what do Georgia, Michigan, Texas, Virginia and West Virginia have in common? These are the five states that the Institute for Justice list in an extensive 2010 study titled Policing for Profit as having the most egregious civil asset forfeiture laws in the country. Unlike criminal asset forfeiture, under civil forfeiture the owner of the property being seized does not have to be charged with a crime. Cash, cars, homes and other property can be taken without even filing charges, let alone convicting the property’s owner of a crime. Georgia law also puts property owners in the position of providing the burden of proof to reclaim their property once it has been taken from them by the government.
Worse, the process is facilitated because of the lack of procedural safeguards: “Because it is a civil proceeding, civil forfeiture does not provide all the legal rights guaranteed to individuals charged with a crime, such as the right to counsel,” the institute said. “The individual charged with a crime enjoys the presumption of innocence and the government must prove the crime beyond a reasonable doubt. Property owners enjoy no such procedural protections in civil-forfeiture proceedings.”
What was once a useful tool for prosecutors in taking down large criminal organizations, civil asset forfeiture in Georgia has morphed into a mechanism by which many police departments and sheriffs departments now rely on these funds as a recurring method to fund larger and larger percentages of their department’s overall budgets. According Policing for Profit money, cars, real estate and other assets are seized by literally accusing the article of being involved in criminal activity.
But civil forfeiture is a legal fiction that enables law enforcement to take legal action against inanimate objects for participation in alleged criminal activity, regardless of whether the property owner is guilty or innocent—or even whether the owner is charged with a crime. Civil forfeiture actions are in rem proceedings, which means literally “against a thing”—the property itself is charged with a crime. That is why civil forfeiture proceedings have bizarre titles, such as United States v. $10,500 in U.S. Currency or People v. Certain Real and Personal Property. And because they are civil proceedings, most of the constitutional protections afforded criminal defendants do not apply to property owners in civil forfeiture cases.
Seizing the property of someone without evidence that they are involved in criminal activity is bad enough, but the larger issue in Georgia is that 100% of the funds seized by a law enforcement agency go right back to that agency, whereas the law in most states directs funds acquired as the result of asset forfeiture return to the state. As the Cohen Law Firm in Atlanta puts it: “Unlike many states, Georgia follows laws that let law enforcement agencies sell the confiscated property and keep 100 percent of the proceeds, according to the Huffington Post. Critics worry this creates an incentive for authorities to seize property without strong proof that a crime even occurred.”
Forfeiture proceeds are “free money” for law enforcement executives, and it is often spent like free money.
Other specific examples of misspent funds are difficult to pinpoint, as most Georgia law enforcement agencies simply choose to ignore the “strict” reporting requirements required by state law, as is highlighted in this IJ report: Forfeiting Accountability: Georgia Law Enforcement’s Hidden Civil Forfeiture Funds
It’s time for the legislature to close the door on Georgia’s harsh asset forfeiture laws. There was an attempt to do so in 2013 but that legislation was strongly opposed by Georgia’s law enforcement leaders and failed. It’s time for Georgia’s law enforcement agencies to learn to live within their means, and if they are unable to do so perhaps they should convince legislators of the necessity for additional funding and stop financing their departments on the side of the road.