Coauthored with Jorge Marin of Americans for Tax Reform. This op-ed was originally published at Peach Pundit on June 10, 2015.
Under the leadership of Gov. Nathan Deal, Georgia has become a national leader on justice reform. Prior to the reforms, which began in 2012, the Peach State spent over $1 billion annually housing almost 56,000 inmates, many of whom are low-level, nonviolent offenders, the rate of repeat offenders was depressingly high.
The new “smart on crime” approach undertaken by Gov. Deal has been a resounding success. The number of inmates has fallen and crime and repeat offender rates have dipped. The reforms have been good for taxpayers. In 2014, the Georgia Justice Reform Council estimated savings of $264 million over five years.
This past legislative session, Gov. Deal and the Georgia General Assembly took a look at another aspect of justice reform by reforming the state’s terrible civil asset forfeiture laws, which lack meaningful protections for innocent people.
Civil asset forfeiture is a particularly pernicious form of government overreach. Overzealous law enforcement can seize the property or money of an individual without ever charging or convicting them with a crime. In an inversion of justice, the seized items are considered “guilty” until proven innocent by the property owner.
Innocent people who are adversely affected by civil asset forfeiture walk away from their property rather than fight what would be a lengthy and costly legal battle to get wrongfully seized property back.
It gets worse. The seizing state or local law enforcement agency can keep up to 100 percent of the proceeds, creating a perverse profit motive to use this tool to, essentially, take property without the due process guaranteed by the Fifth Amendment. This profit motive also serves as a distraction for law enforcement by encouraging them to be revenue collectors.
Georgia law enforcement and prosecutors insist that civil asset forfeiture is an essential tool to fight illegal drugs, but it is clear that it breeds abuse.
A report released by the Institute for Justice, a libertarian public-interest law firm, found that 58 Georgia law enforcement agencies, in 2011, seized $2.76 million from individuals without ever charging them with a crime. Law enforcement agencies reaped an even greater sum, $32 million, through federal civil asset forfeiture laws.
Upon the release of the findings of the report, Lee McGrath, senior legislative counsel at the Institute for Justice, issued a stern warning for law-abiding Georgia residents. “Civil forfeiture,” he said, “represents one of the biggest threats to property rights in Georgia.”
Sadly, some innocent Georgians have learned this lesson the hard way. In March 2007, Michael Annan was pulled over for speeding in Camden County. Police did not find any drugs during a search of his vehicle but did come across $43,720 – money Annan, a skeptic of banks, said was his life savings. Police seized the cash, anyway.
After proving the money was earned legitimately, police returned the cash, but not before Annan doled out $12,000 in legal fees to prove his story.
In the final hours of the legislative session, lawmakers approved HB 233, the Georgia Uniform Civil Forfeiture Procedure Act. Signed by Gov. Deal in early May, the new law offers some reforms to the state’s civil asset forfeiture laws.
The Georgia Uniform Civil Forfeiture Procedure Act is a step in the right direction, but it is should be viewed as the beginning of a conversation toward more meaningful reform.
While the new law places some spending limitations on the use of civil asset forfeiture proceeds and increased transparency by enhanced reporting requirements, it is light on protections for innocent Georgians whose property is seized by overzealous law enforcement. For one, the burden of proof required for forfeiture is still an inadequate “preponderance of evidence,” or 50 percent plus 1.
Other state legislatures, including Montana and New Mexico, have enacted laws with strong, bipartisan support that ensure protections for innocent property owners by requiring a criminal conviction before property connected to a crime can be forfeited to the government. In addition to protecting blameless property owners, this sends a message to the community that only the guilty will pay for their crimes.
Georgia can and should go further by enacting stronger protections for innocent property owners and removing the perverse profit motive often behind seizures. These simple steps will not only restore due process in Georgia, but also promote public safety in its communities by allowing law enforcement and prosecutors to focus on the vitally important task of ensuring public safety against violent criminals.
