A Georgia lawmaker, who previously pushed legislation reining in what he describes as abuses of the state’s civil forfeiture statutes, is once again waded into the fray with a multibill package aimed at the process.
Five pieces of legislation sponsored by state Rep. Scot Turner, R-Holly Springs, take aim at various aspects of civil forfeiture that allows prosecutors to seize money and property deemed to be the spoils of criminal activity, even though criminal charges do not result in convictions, or may not be pursued.
The bills would raise the burden of proof required before prosecutors can move to seize property and money, restrict the ability of local and state agencies to share in forfeiture proceeds seized by federal law enforcement and mandate annual disclosure of how much forfeiture proceeds come from cases with no convictions.
“I started out on my forfeiture adventure by trying to make it so the state has to secure a conviction before it can to take someone’s property,” Turner said.
“The most offensive thing to me is that the state can move to take your property before a conviction, and the only burden of proof is a preponderance of evidence,” he said.
Requiring a conviction and raising the burden of proof “goes a long way to re-establishing innocent until proven guilty,” he said.
Turner may have gotten a hand from the U.S. Supreme Court on Wednesday, which unanimously ruled in Timbs v. Indiana that an Eighth Amendment clause barring the imposition of “excessive fines” applies to states as well as the federal government because of the due process clause of the Fourteenth Amendment. The ruling is seen as potentially curbing civil asset forfeiture.
Turner is a consultant, but much of the legislation he sponsored has been signed on to by attorneys and lawmakers from both sides of the political aisle.
Turner knows from experience that civil forfeiture reform is a tough sell in a Legislature where sheriffs and prosecutors have wielded their influence to kill such bills.
“One of my bills on the preponderance of evidence made it to the Rules Committee last year,” Turner said, but it never got out.
“Because of political realities, I’ve tried to chip away at forfeiture,” he said.
Among the legislative package:
House Bill 103: Bars lawyers appointed as special attorneys general or special assistant district attorneys for forfeiture actions from being hired on an hourly basis “that is capped by the value of the assets which arise or are realized” from the forfeitures.
HB 107: Raises the burden of proof for forfeiture cases from “preponderance of the evidence” to “clear and convincing evidence.”
HB 111: Mandates that any law enforcement agency, multijurisdictional task force or district attorney that receives forfeited property or funds must “clearly identify whether any such property and proceeds have any relation to a criminal proceeding in which there was an acquittal or dismissal” of charges.
HB 115: Bars any state attorney or law enforcement agency from transferring property seized under state law violations to a federal agency after declaring it forfeitable under federal law. It also bars state agencies and prosecutors from accepting forfeiture proceeds from a joint task force or other multijurisdictional operation, unless the value of the property and funds exceeds $100,000.
HB 278: Mandates that a court stay any forfeiture proceedings until any underlying criminal actions have been adjudicated and rolls in the requirements of HB 103 and HB 115.
The Legislature first began cracking down on the use of outside lawyers to handle forfeiture cases several years ago after some district attorneys were appointing special prosecutors who were paid on a contingency basis. In some cases, special prosecutors were taking up to a third of what they seized.
Lawmakers declared contingency fee forfeitures illegal, but Turner said he’s still concerned some prosecutors are working around the law.
“A handful of prosecutors are outsourcing their civil forfeiture proceedings, and I looked into it and found that a couple were not using a written contract. Their exact words to me were, ‘They send me an invoice, and I pay it,’” he said.
“They were also capping the the pay at one-third of the forfeitures, which is just another type of contingency fee,” he said.
Turner said he was spurred to draft the legislation requiring an annual report of how many forfeitures were not accompanied by convictions after reports that Gwinnett County Sheriff Butch Conway spent $70,000 in forfeited funds on a Dodge Charger Hellcat for his own use.
“The sheriff purchased a flashy, expensive muscle car,” he said. “I filed an open records request through the House attorney, asking how many people in Gwinnett had lost their property but found not guilty, and they said it was impossible to answer because they didn’t have the proper software. So I have a bill that will answer that question.”
The legislation limiting the amount of forfeited proceeds a state or local agency can get from federal partners came from the experiences of Ohio and New Mexico, which tried to limit or ban civil forfeiture.
“In New Mexico, they tried to get rid of it altogether, and local governments began using federal sharing as a workaround to keep getting forfeited funds,” Turner said.
Under his bill, local agencies “can still participate in federal law enforcement operations, but they’ll have to meet that $100,000 threshold to keep it focused on the kingpins,” he said. Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia, said he is aware of the legislation.
“A lot of these issues are the same ones we’ve addressed over past couple of years,” he said.
“On behalf of our district attorneys, I can tell you they’re committed to working within the law to maintain asset forfeiture. It’s a valuable tool for prosecutors to obtain funds and property that come from the very lucrative business of drug-dealing and crime.”
Skandalakis said contingency forfeitures are already illegal and that federal guidelines “are very strict about mixing state and federal money.”
“We’re certainly willing to discuss these issues and see if there’s any common ground,” he said. “We believe in transparency, and we want this to be an open process,” Skandalakis said.
Georgia Sheriffs’ Association Executive Director Terry Norris said his membership will meet to discuss the legislation next week.
“At this time, however, I do not feel the sheriffs will support the bills,” Norris said.
A spokesman for state Attorney General Chris Carr said the office does not comment on pending legislation.