If you give law-enforcement agencies a strong financial incentive to seize private property, if you make it difficult for private owners to recover seized property through the legal system, and if you allow public officials to use the proceeds as a largely unregulated slush fund, you’re all but asking for abuse.
Georgia law does all three things, and abuse is what we’ve got.
For example, as AJC reporter Willoughby Mariano reported this week, Fulton County District Attorney Paul Howard has tapped into forfeiture funds for a variety of purposes that have little to do with the responsibilities of his office.
“During the past five years, Howard spent $2,700 on wrought-iron security doors for his house,” Mariano reported. “He bought $4,450 worth of tickets to the Bank of America Atlanta Football Classic. Some $6,000 went to a lawyers group that inducted him into its Hall of Fame.”
Likewise, Douglas County District Attorney David McDade has invited the GBI to investigate alleged misuse of vehicles that were purchased with forfeiture proceeds by his office, among other issues.
Such reports have gotten the attention of Gov. Nathan Deal, who this week said that he would support efforts to tighten oversight of how such money is spent. While a positive step, oversight addresses only part of the challenge, and the less important part as well.
The more important issue involves the confiscation of private property in the first place. Under current state law, law enforcement agencies can seize property that they believe was either used in the commission of a crime or was acquired through crime, including cars, houses and cash. Such a tool is useful in stripping criminals of ill-gotten gains, particularly in drug cases when large amounts of cash, expensive cars and other luxury goods are recovered.
But here’s the thing. A defendant can be found not guilty, or in some cases not even be prosecuted for a crime, and still have his or her property confiscated by law enforcement. Under state law, law enforcement merely has to show a “preponderance of evidence” that property was crime-related to justify its confiscation. In common language, that means they merely have to show that it’s more likely than not crime-related. And all over the country, Georgia included, that has led to abuses.
Earlier this year, a bipartisan group of state legislators led by state Rep. Wendell Willard, R-Fulton, introduced a bill that places strict limits on how officials can spend forfeiture proceeds. It puts a limit on how much money a local law enforcement agency can generate through forfeiture — no more than a third of its budget — and requires that property forfeited to state government be used for indigent defense, victim compensation, drug treatment and similar programs. That would reduce the incentive for abuse.
Under HB 1, law enforcement agencies seeking to take private property also would have to provide clear and convincing evidence that the property is crime-related. That’s stronger than the current preponderance-of-evidence standard, but still well short of the “beyond a reasonable doubt” standard for criminal convictions.
Even under that change, a person found “not guilty” by a jury could still be stripped of property related to his or her alleged crime. However, because of strong opposition by local law enforcement, which carries great weight at the Capitol, the bill went nowhere.
The depth of opposition from local sheriffs is itself sign of trouble, because it indicates just how addicted those agencies have become to such money. In some cases, they rely on those funds not as sources of money to contribute to influential charities or to buy extra cars for their employees, but to fund their basic operations.
While you have to sympathize with their predicament, it is also a worrisome sign. When local law enforcement is that dependent on seizing property, they are less likely to be scrupulous in what they seize and are likely to concentrate on crimes that bring them the most financial reward. That isn’t an indictment of their honesty or professionalism; it’s a mere fact of human nature that state law ought to take into account.
Put simply, we court real trouble when law enforcement is reduced to a for-profit enterprise.
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