Georgia prosecutors have indicated they are willing to stop fighting a bill regulating civil forfeitures if compromises reached this fall with sheriffs and lawmakers are included in the bill this legislative session.
House Bill 1 rankled district attorneys last year because it would have raised the state’s burden of proof to seize assets linked to crimes from a preponderance of the evidence to clear and convincing evidence. The bill also would have required judges to approve forfeitures worth more than $5,000, rather than the $25,000 ceiling under which authorities can seize assets now. Finally, the bill would have required prosecutors to prove that allegedly innocent owners—people whose seized property was used by another in a criminal action—unequivocally knew about underlying criminal activity in order for the court to grant forfeiture.
Rep. Wendell Willard, the Sandy Springs Republican who chairs the House Judiciary Committee, filed HB 1 in November 2012 at the urging of several citizen groups. Willard’s committee approved the bill with edits in February, but the bill stalled on the House floor and was eventually recommitted to the House Rules Committee for further discussion due in large part to strong opposition from district attorneys and sheriffs.
District attorneys and law enforcement agencies often rely on seized money and property to pay for equipment and training. But spending of seized drug funds and other forfeited assets has caught public’s attention in recent months, following allegations of misuse against several metro-area district attorneys.
As a result of heightened attention, the Prosecuting Attorneys Council proposed creating a trust fund through which the council would oversee forfeiture funds for each circuit. The PAC also would promulgate clearer guidelines for how the money could be spent, which would heighten transparency and accountability, said Chuck Spahos, the PAC’s executive director.
“We already do this in terms of managing travel expenditures and state employee payments,” he said. “The amount of appropriated state funds already comes through the PAC for each DA. This is not a new concept.”
Spahos added that the trust fund idea may be added to the current legislation.
“If Chairman Willard’s [revised] bill contains the language we’ve agreed to, and we can get our language worked out regarding the trust fund, then the DAs will support House Bill 1,” Spahos said.
Cobb County DA Vic Reynolds said prosecutors pressed for the burden of proof for the state to remain at preponderance of the evidence and that the non-judicial threshold should remain at $25,000. In turn, prosecutors agreed to file complaints in court any time an owner filed a claim or answer to a forfeiture.
“Any claim, regardless of its sufficiency, would require a district attorney to file a complaint for forfeiture and go the full judicial route,” Spahos said.
“We’ve always done this in Cobb County,” said Reynolds. “A lot of these litigants file in a pro se fashion initially, and we don’t want anybody’s rights to be trampled on even though they didn’t file a response or claim in which all the Ts were crossed and Is dotted.”
Prosecutors also pushed back on the provision regarding alleged innocent owners, he said.
“For example, a parent, grandparent, wife, girlfriend has a vehicle and the bad guy defendant [in a criminal case] used it to sell drugs. Under the current law, they are held to an objective standard. Using that example, the prosecutor can argue [that] given the bad guy defendant’s two previous drug cases, the owner should have known or could have reasonably known because he’s done it before,” Reynolds said. The bill submitted last session “would have changed it to a subjective standards, meaning prosecutors would have to prove the owner unequivocally knew. And that’s virtually impossible to do.”
Reynolds said despite prosecutors’ initial objections, the proposed legislation has many good aspects.
“One thing it would do is standardize the procedure for all forfeiture cases. There are more than 30 forfeiture statutes in the law,” he said. “It would also make sure that every forfeiture action, even in RICO cases, are decided with bench trials and not jury trials.”
The compromises referenced by Reynolds and Spahos were hashed out this fall by a panel of prosecutors, sheriffs and lawmakers named by House Speaker David Ralston, R-Blue Ridge, who is also a lawyer. Reynolds was one of five district attorneys on the panel.
“The Speaker felt it was important for this issue to receive thorough and serious attention,” said Ralston’s press secretary, Marshall Guest. “That is what led to him bringing together an outstanding group of prosecutors and sheriffs to sit down with House Judiciary Committee members and Chairman Willard to work toward a consensus that could be ready when the General Assembly convenes.”
Collection and spending of forfeited assets also have piqued the interest of Gov. Nathan Deal, who began his law career as an assistant district attorney in the Northeastern Circuit. Deal directed his criminal justice reform council to look into forfeiture regulations.
W. Thomas Worthy, deputy executive counsel to Deal and co-chairman of the criminal justice reform committee, said the governor asked the council to suggest ways to increase accountability in forfeiture actions and spending.
“The governor did this after some press accounts of potentially inappropriate spending of forfeiture funds by various officials around the state,” Worthy said. The Georgia Bureau of Investigation confirmed this summer that it was examining how Fulton DA Paul Howard’s office has spent its forfeiture funds. Defense lawyers for indicted DeKalb CEO Burrell Ellis have claimed that DeKalb DA Robert James inappropriately spent forfeiture funds on a campaign event.
Howard said in a written statement in June that his management of forfeiture funds was guided by his philosophy to promote crime prevention and community engagement. He acknowledged that state law prohibits his office and others from spending the money to offset furloughs or pay employee salaries, but he argued that the law gives prosecutors latitude to spend the money on community relations programs and to boost morale among his staff.
“I soon realized … that unless I worked to reduce the 50 percent prosecutor turnover rate and poor morale, I could never reach my goal of increasing community safety,” Howard wrote. “Consequently, over the years, I have used the state-confiscated funds to reward my employees with an annual awards banquet and provide admission to legal and nonprofit events with organizational goals consistent with our mission.”
James said that his office spent its money lawfully, to educate senior citizens on ways to prevent theft, crime and abuse.
James said that current state law outlining how forfeited assets may be used is sufficient but supports the prosecuting community’s role in legislative debate.
“I haven’t seen a rash of public officials violating the law,” James said. “I think this is more of a policy conversation and not one about whether anyone is violating any statutes.”
Willard, who is working on an amended copy of the bill to file once the 2014 session starts on Jan. 13, said he appreciated the PAC showing “a stronger interest in getting something done.”
Worthy said he doesn’t know whether the criminal justice reform council’s recommendations will enter Willard’s bill, though they mirror the negotiated compromises between prosecutors and lawmakers. Willard said last week that he had not seen the council’s recommendations. Among them are expediting the return of seized property to innocent owners by standardizing forfeiture proceedings and adopting statewide rules for spending seized funds that are drafted by prosecutors and sheriffs associations.