ATLANTA, Ga. (Feb. 25, 2019) – Bills introduced in the Georgia House would reform the states asset forfeiture laws and close a loophole allowing state and local police to circumvent the more stringent state asset forfeiture process by passing cases off to the feds.
Rep. Scott Turner (R-Holly Springs) introduced House Bill 278 (HB278) on Feb. 13. Under the proposed law, prosecutors would not be able to move forward with asset forfeiture proceedings without first obtaining a criminal conviction.
Under current law, Georgia law enforcement agencies can seize property without even filing criminal charges. There is also a strong policing for profit incentive with law enforcement agencies keeping up to 100 percent of forfeiture proceeds. The Institute for Justice gives current Georgia forfeiture laws a D- grade.
HB278 includes language that would prohibit law enforcement agencies and prosecutors from passing cases off to the federal government in order to circumvent the state forfeiture process in most situations.
Turner also introduced several other bills that would reform the state’s forfeiture laws more modestly, including standalone legislation HB115 that would close the loophole and HB107, which would raise the burden of proof for forfeiture from “preponderance of the evidence” to “clear and convincing evidence.”
Turner said he introduced multiple bills because it might be necessary to “chip away” at forfeiture due to political realities. He told the Daily Report that civil forfeiture reform is a tough sell in the legislature where sheriffs and prosecutors have wielded their influence to kill such bills.
NECESSARY
While some people believe the Supreme Court “ended asset forfeiture,” the recent opinion in Timbs v. Indiana ended nothing. Without further action, civil asset forfeiture remains. Additionally, as law professor Ilya Somin noted, the Court left an important issue unresolved. What exactly counts as an “excessive” in the civil forfeiture context?
“That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal.”
Going forward, opponents of civil asset forfeiture could wait and see how lower federal courts will address this “over the next few years,” or they can do what a number of states have already taken steps to do, end the practice on a state level, and opt out of the federal equitable sharing program as well.
FEDERAL LOOPHOLE
Passage of HB278 or HB115 would take a big step toward closing a loophole that allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. This is particularly important in light of a policy directive issued in July 2017 by then-Attorney General Jeff Sessions for the Department of Justice (DOJ).
A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. The DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.
Law enforcement agencies can circumvent more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.
Until recently, California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.
HB278 features language to close the loophole in most situations.
No state attorney or law enforcement agency shall transfer or otherwise relinquish possession of property seized under this chapter or as a result of a forfeiture action … to a federal agency by way of adoption of such seized property or other means by the federal agency for the purpose of such property’s forfeiture under the Controlled Substances Act, 21 U.S.C. 801, et seq
No state attorney or law enforcement agency shall accept payment of any kind or distribution of forfeiture proceeds resulting from a joint task force or other multijurisdictional collaboration unless the aggregate net equity value of the property and currency seized in a case, as found by the court, exceeds $100,000.00, excluding the value of contraband.
HB115 features the same language in a standalone bill.
As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.
Why?
We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.
WHAT’S NEXT
At the time of this report, these bills had not been referred to a committee. Once they receive committee assignments, they will have to pass by a majority vote before moving forward in the legislative process.
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