HB 1: Codifying ‘Due Process’ in the Asset Forfeiture Process
by Bill Simon
Preface
HB 1 is a bill titled the “Georgia Uniform Civil Forfeiture Procedure Act.” It is due on the Georgia State House floor today (Tuesday, March 5th).
The bill is 92 pages long, has 3,211 lines of text, and contains approximately 40,000 words (line numbers excluded from that count).
If anyone wants to take the time to read the 92 pages, help yourself here.
Or, you can just read this issue of the Vine (which will be shorter than 40,000 words) and get the gist of why this bill is good legislation, and why it should pass with NO amendments that will likely be designed to only water it down to the detriment of the people of Georgia.
Background of the Civil Forfeiture Issue
The purpose of HB 1’s 92 pages and 40,000 words is to actually put into place the “due process of law” that the Georgia Constitution guarantees for people in its very first two paragraphs in Article 1, Section 1:
“Paragraph I: No person shall be deprived of life, liberty, or property except by due process of law.
Paragraph II: Protection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws.”
Civil forfeiture laws represent one of the most serious assaults on private property rights in the nation today. It is the power of law enforcement to confiscate cash, cars, home and other property on the mere suspicion that the property was involved in criminal activity.
The national group Institute for Justice (a public interest law firm that fights forfeiture abuse across the country) has done a national study on civil forfeiture laws in several states and produced a 7-minute video that lays-out the issue for you to understand (Click this link for video here).
On January 29, 2013, the Institute released a report on Georgia’s civil forfeiture laws titled “Rotten Reporting in The Peach State” that details the problems with several Georgia law enforcement agencies who do not provide the proper documentation and reporting of property they have seized.
In January of 2012, the Georgia Public Policy Foundation issued a statement about civil forfeiture, concluding that:
• Asset forfeiture should not be a civil process. Nobody should lose their property until they have been 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.
During 2011 and 2012, a Forfeiture Rewrite Work Group met in Georgia to review current forfeiture law and determine whether there was a need to standardize the provisions and consolidate into one primary code section to help assure a “due process” was followed consistently. The group included representatives from each of the Georgia Association of Criminal Defense Attorneys, the Prosecuting Attorney’s Council, the Georgia Attorney’s General office and the Administrative Office of the Georgia Courts.
With the help of Legislative Counsel, the work group drafted a new Uniform Civil Forfeiture Procedure Act (UCFPA) which will be located in Chapter 16 of Title 9, Civil Practice.
UCFPA establishes comprehensive civil forfeiture proceedings taken from the drug forfeiture statute that has guided the vast majority of forfeitures in this state for the last 20 years.
Due Process – The Meat of HB 1
To put it as simply as possible, HB 1 codifies the intent of the Georgia Constitution’s due process and private property rights guaranteed under the state constitution. A Constitution that elected officials all swear an oath to uphold, and one that all law enforcement personnel also swear an oath to uphold.
But, the forfeiture laws, as they currently exist in Georgia, tilt the scales of justice heavily against the concept of property rights to strongly favor the “state” and law enforcement agencies more than they favor the people’s rights to due process before their owned property gets yanked from them.
And, we’re not talking about property used in the direct commission of a crime where the criminal has been found guilty. Civil forfeiture acts currently include the confiscation of property where a law enforcement officer can make a decision on the spot that the property is connected to a crime and confiscate it…without it ever being proven to be directly involved in the commission of a crime.
And, as the current law exists, law enforcement is only required to place a notice in the courthouse that the property has been confiscated. There is no direct notification of the owner(s) of the property required as the law currently exists. Before you conclude that might be “okay” as far as notification goes, consider this: how many times do you visit your courthouse to determine if your property has been confiscated?
The language in HB 1 spells it all out as to the procedures required to confiscate private property, procedures for law enforcement documenting their confiscations and submitting reports…as well as a new legal standard on what “burden of proof” standard to use to determine if it is legal to confiscate the property in question…which is actually important enough to go into a little more detail on…
Burden of Proof: Three Levels
There are actually three “levels” of evidence proof in the American legal system (assuming Georgia is still considered to be part of America, I assume these three levels also apply in this state).
Most everyone knows about the standard of proofs of “beyond a reasonable doubt” (which is used in criminal cases) and “preponderance of the evidence” which is usually used in civil cases.
Beyond a reasonable doubt is the highest level of proof required, while ‘preponderance of the evidence‘ is the lowest level of evidence judgment to use to make a legal decision.
There is a third level which is a middle-of-the-road level to these two extremes: Clear and convincing evidence.
From the Cornell University Legal Website, this is what the “clear and convincing” level of evidence means as a standard: “In order to meet the standard and prove something by clear and convincing evidence, a party must prove that it is substantially more likely than not that it is true. This standard is employed in both civil and criminal trials.”
HB 1 requires that law enforcement use the evidence of proof level of ‘clear and convincing evidence’ to determine whether property should be seized.
‘Clear and convincing evidence’ requires more proof than just someone’s random opinion. They must prove that it is more likely than not to be property that was used in the commission of a crime.
Rumors have it that a specific amendment will be offered from the floor to lower the standard to merely being “preponderance of the evidence,” which will essentially allow the confiscation to continue as it does now, with little proof of property being connected to a crime.
Any amendment like this will just mean someone does not truly believe in the concept of “due process of law” and that all private property is, essentially , lying in wait to be confiscated by some law enforcement person who, at the act of personal whim, could seize it and claim on the basis of a mere “preponderance” of the evidence, keep the property and force the actual owner to expend funds to get it back.
That concept (which is how current law is in Georgia) is anti-American because it assumes the property owner of being guilty of something, and having to prove innocence in order to reclaim his/her seized property.
HB 1 SUMMARY
HB 1 will create more transparency and accountability by strengthening the mandatory reporting requirement of all law enforcement agencies. It will ensure that those individuals proven guilty of a crime do not keep the fruits of their crime , and it strikes a much needed balance in forfeiture law by protecting individual property rights and public safety against those involved in criminal enterprises.
Georgia’s law will now be more in line with the federal requirement for how law enforcement can use forfeiture funds. HB 1 requires that parties provide a proper accounting of what they receive upon seizure, and it allows for equitable distribution among all law enforcement agencies involved with the forfeiture.
HB 1 clarifies some current provisions regarding reporting and eliminates confusion over what the funds may be used for by explicitly defining the specific use of money confiscated — the same as federal law.
HB 1 provides procedural safeguards by placing it within Title 9, as a civil law proceeding and providing court oversight, and simplifies the standard for initiating a claim to recover property wrongfully seized for forfeiture. Innocent people should not lose their property because they didn’t know the “letter of the law” in notice and procedure required to retrieve property they didn’t know was seized.
HB 1 allows either side to make an application to the court for discovery if the party believes there is a need, and the court has discretion to grant. It creates a right of anyone who has a claim to property to appear before the court and defend that interest.
This legislation also lowers the ceiling from $25,000 to $5,000 for non-judicial forfeitures and provides greater due process for smaller claims and gives greater protection to the public.
It also deletes existing language that required a property owner to pay for the state’s legal fees if they lose their claim in court to the property claimed, and not only lose their property, but got a double-whammy of paying money to the agency who confiscated their property for “reasonable costs, including attorneys fees” for daring to challenge the property seizure.
Finally, it will also specify that it is the duty of every local law enforcement agency and multi-jurisdictional task force to send its report to the Carl Vinson Institute.
Vote Yes to pass HB 1 and send it to the State Senate (which will likely demonstrate for us all just how anti-property rights, anti-due process, anti-constitution, AND how pro-statist those state senators and Casey Cagle really are in that chamber…:-).
Unless, of course, anyone in the state house wants to be identified as being anti-due process, anti-property rights, anti-constitution, etc…? Anyone? Anyone?
