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Principles for Protecting Private Property in the Peach State

02/25/2016

FreedomWorks Foundation delivered the following testimony Friday, February 26 before the Georgia House of Representatives Subcommittee on the Judiciary (Civil). The subcommittee heard testimony on legislation, HB 832, which would require a criminal conviction before property seized by the government can be subjected to civil asset forfeiture. State Rep. Scot Turner (R-Holly Springs) is the primary sponsor of the bill and invited FreedomWorks Foundation to testify.

On behalf of FreedomWorks Foundation and our grassroots conservative community, I would like to thank Chairman Caldwell and the members of the House Subcommittee on the Judiciary (Civil) for holding a hearing that discusses the important issue of civil asset forfeiture reform. More than a year ago, we joined several other conservative and progressive organizations – including Americans for Tax Reform, the Faith and Freedom Coalition, the Center for American Progress, and the American Civil Liberties Union – to partner with the Coalition for Public Safety and U.S. Justice Action Network. This is the largest national effort working to pursue comprehensive criminal justice reform, including civil asset forfeiture reform.

I’m aware that any discussion involving policing will bring passionate views from both sides of the debate, especially on civil asset forfeiture. But I would like to note that I come from a family with ties to the military and law enforcement. I have a deep respect for the crucial service they perform for our communities for which they are not given enough thanks. My father, for example, was Marine who served in Vietnam, where he received two Purple Hearts. He also served in the Atlanta and Forest Park police departments in the 1970’s and 1980’s and, before he passed away in September 1993, was an active member of the Georgia State Defense Force.

Still, public policy must be grounded in constitutional principles. Over the past year, I’ve had the opportunity to work on criminal justice reform at the federal and state levels for FreedomWorks and FreedomWorks Foundation. Georgia, I’m pleased to say when speaking on or writing about this issue, is a national leader on this effort. As a life-long resident of this great state, the dedication Gov. Nathan Deal and state lawmakers have shown on these issues makes me incredibly proud.

Unfortunately, Georgia’s civil asset forfeiture laws are in need of reforms that offer substantive due process protections for all individuals, especially those who are never charged with nor convicted of a crime, and their money and property from this pernicious form of government overreach.

In July, FreedomWorks Foundation released a publication, From High Seas to Highway Robbery: How Civil Asset Forfeiture Became One of the Worst Forms of Government Overreach, which offered background on this practice to our grassroots community. From High Seas to Highway Robbery serves as the answer to one of the most common questions we get from our community when educating them on civil asset forfeiture. That question is, “How can the government take property from someone without ever charging them with a crime?”

From High Seas to Highway Robbery allowed us to answer that question thoroughly by offering the history of civil asset forfeiture, from its roots in medieval times to British and American admiralty law to how it is commonly used today, which, in most states, is to place property on trial without any semblance of due process required under the Fifth and Fourteenth amendments, as well as state constitutions, such as Georgia’s, that guarantee this right.

Unlike criminal proceedings, where charges are brought against an individual and the government must present “proof beyond a reasonable doubt,” prosecutors bring their cases against property in civil asset forfeiture proceedings. Often, they need only meet a very low evidentiary standard, such as “a preponderance of the evidence,” and the burden of proof, in a perversion of justice, falls on the property owner, not the government.

Sadly, Georgia is one of those states. A recent report from the Institute for Justice, a libertarian public-interest law firm, notes:

“Under Georgia law…the government need only prove by a preponderance of the evidence that seized property is connected to a crime or that there is no other likely source for the property other than criminal activity. Property owners who file an innocent owner claim bear the burden of proving that they neither knew about nor consented to any illegal uses of their property. Worse, joint owners of vehicles are not even permitted to bring innocent owner claims in Georgia. State law provides no way for them to petition for their vehicle or to get a share of it back. And Georgia law provides a strong incentive to seize: Up to 100 percent of forfeiture proceeds go to law enforcement.”

FreedomWorks Foundation believes that requiring a criminal conviction – proof “beyond a reasonable doubt” – before property can be subjected to forfeiture offers the best path forward for Georgia lawmakers and their constituents.

Other states, including New Mexico and Montana, enacted legislation as recently as 2015 to this year to do just that, while others, including Michigan, raised the evidentiary standard needed to subject property forfeiture. In fact, Republicans, who control the Michigan House of Representatives, made civil asset forfeiture reform part of their legislative agenda for the 2015 legislative session, and they delivered. And realizing that reform was in the best interest of communities, the Michigan Association of Police Organizations supported the package of reforms, calling it “a reasonable, measured approach to improving transparency in forfeiture activities and diminishes the ‘policing for profit’ perception that has attached to this issue.”

By tying forfeitures to a criminal conviction, the burden of proof will fall on the government, where it belongs and restore the presumption of innocence, a foundational principle of the American legal system. At the very least, the evidentiary standard could be raised to “clear and convincing evidence,” the highest standard in civil court, and the burden of proof shifted to fall on the government, not the property owner, who, again, may never be charged with a crime.

The Georgia Constitution makes clear the importance of due process. It is so important, in fact, that it is the first right to appear in the Bill of Rights guaranteed by Article I. For far too long, Georgia forfeiture laws have been inconsistent with this essential liberty. It is up to the member of this body to determine the course. But I hope each of you will keep the preservation of our liberties at the forefront of your minds as you explore civil asset forfeiture reform.