While the discussion and debate over reform for civil asset forfeiture remain ongoing, most Americans still probably do not even know what it means, much less how it is being wielded by law enforcement.
The Heritage Foundation and The Institute for Justice call it “policing for profit.”
In brief, the concept of civil asset forfeiture is that two different burdens of proof are used to determine if an individual is guilty of a crime and to determine if the individual’s property is “guilty” of being used for the crime. This presents the strange legal fiction where a car, a stack of cash or a house might be “seized” or held under suspicion of being “guilty” just as a person might be held by the police under certain circumstances, even without being officially charged with a crime.
Police officers must, of course, have tools at their disposal that allow them to seize the presumed “fruits” of criminal activity. Sometimes the individual whose assets were seized ends up being guilty of the crime. Other times, they are never charged or are exonerated. In any of these circumstances, however, constitutional lawyers have taken umbrage, citing constitutional principles and protections.
Criticism of the practice of asset forfeiture should not be interpreted as to encourage stripping officers of all their ability to do so. Moderate reforms would benefit relations between law enforcement agencies and their communities by fostering trust and making it less likely that all officers are tainted by the perversely motivated seizures of a few bad apples.
As it is now, even in cases when individuals are never charged with a crime, getting their property back is never easy, and sometimes downright impossible. Property is usually held behind an appeals process, sometimes requiring legal representation to get it back, and that could cost more than the property itself.
Agencies count on this: Property eventually stays in their possession long enough to auction it off and pocket the proceeds.
Fortunately, both in Georgia and nationally, the issue has begun to gain momentum, and reforms are trickling out.
Georgia’s most substantial reform, passed in 2015, added transparency and reporting requirements and changed how the funds from forfeiture can be spent.
As for the progress that Georgia has made on the issue: Transparency requirements are an encouraging first step. But the law and policymakers need to go further.
Heritage’s Malcolm proposes perhaps one of the more effective solutions to implement such a cultural change: Pool money from seizures at the state level then redistribute it based on metrics beside what department made the seizure.
His proposal bears in mind the nuanced, valid, concerns raised by law enforcement. It addresses head-on the core issue of perverse incentives. Without reform that works against a direct and literal profit for law enforcement – with or without an accompanying conviction – the temptation will remain, even when law enforcement does not succumb to it.
In Georgia, attempting to keep a spotlight on civil asset forfeiture through transparency measures is a good beginning. Another worthwhile step is to move the conversation and education forward on a national level. Conscientious policing of our communities requires mutual respect and understanding. Civil asset forfeiture in its current state is a stone in Georgia’s shoe, hobbling the state’s progress.
(Ross Coker is Director of Research and Outreach at the Georgia Public Policy Foundation, a think tank that proposes market-oriented approaches to public policy.)