Georgia’s Civil Asset Forfeiture is Bad Public Policy
Civil asset forfeiture is a mechanism that permits law enforcement officials to seize private individuals’ property with limited due process and little regard for their guilt or innocence. Starting in the 1980s, its use grew rapidly. It was intended to be a weapon in the drug war that would deprive cartels and dealers of their financial basis for operation. But now, law enforcement officers employ the practice more widely and in unrelated contexts, thanks largely to perverse incentives that allow their offices to directly benefit by eschewing due process.
In Georgia, police officers are permitted to seize private individuals’ property if there is probable cause to believe that it was linked to illegal activity. The owners don’t need to be convicted or even arrested to lose their property outright. If they hope to recoup their property, then they have a very narrow window of opportunity to present their case in court.
In order to recover their belongings, owners must demonstrate that their property wasn’t connected to any illicit acts. None of this occurs in the presence of a jury of peers. Rather, it happens at a bench trial where the sitting judge unilaterally settles the matter. If the owner fails to persuade the judge or simply doesn’t pursue a case, then the property is forfeited and officially awarded to the government.
The scale of the problem in Georgia is hard to quantify because the state’s civil asset forfeiture record-keeping has been poor in years past. More recently, a 2015 law standardized the record-keeping process and made it more transparent. The findings since then have been shocking.
Georgia has employed civil asset forfeiture aggressively. In one case, a police officer in Camden County, Georgia, confiscated $11,500 in cash from a grandmother named Alda Gentile during a traffic stop. Other than allegedly speeding, Gentile had done nothing wrong and wasn’t even arrested. Still, the officer seized her cash because he believed it was drug money. Gentile insisted that she withdrew the $11,500 as a down payment on a Florida condo. It’s astounding that simply carrying money in your own vehicle while driving on the interstate is an adequate justification for its seizure.
Civil asset forfeiture strikes at the core of our justice system. American jurisprudence is based on the presumption of innocence – being innocent until proven guilty. Requiring innocent property owners to prove that their belongings are not tied to any criminal activity — in essence, demonstrating that it is “innocent” — in order to regain their property is antithetical to this notion.
What makes civil asset forfeiture particularly dangerous is a highly-problematic embedded incentive. The mechanism’s structure encourages law enforcement agencies to emphasize practices that will lead to forfeiture windfalls because departments stand to benefit financially. Effectively, some law enforcement officers undertake certain activities not to protect public safety, but rather to fundraise.
Further, civil asset forfeiture proceedings place Georgians at a disadvantage. Though related to alleged criminal behavior, civil asset forfeiture is technically a civil matter, meaning there is no right to counsel. Underprivileged property owners, therefore, are not provided counsel like defendants in criminal proceedings; they must instead either represent themselves against seasoned attorneys or, if they can somehow afford it, hire their own lawyer. However, it doesn’t always make financial sense to do so. If $1,000 is seized and it will cost $300-500 an hour for a reputable attorney, then even if the owner is victorious, the result will be a net loss.
Last legislative session, Georgia had an opportunity to improve its civil asset forfeiture laws. Rep. Scot Turner, R-Holly Springs, introduced HB 505, which would have simply required a criminal conviction for the government to retain seized property. If the defendant was acquitted or the corresponding charges were dropped, then the property would be automatically reinstated to the owner. The bill was never given a floor vote.
Opponents of civil asset forfeiture-reform claim that it will undermine police officers’ ability to fight crime and prevent them from removing criminals’ lifeblood – their money. This criticism badly misses the point. Rep. Turner’s bill would not have precluded law enforcement from seizing property from those suspected of illicit behavior; it would have simply required people be proven guilty before their property can be permanently forfeited.
In a free society, that really isn’t asking too much.