A decision from the U.S. Supreme Court that found the Constitution’s Eighth Amendment bars excessive fines sent tremors through legal and law enforcement circles last week over civil asset forfeiture, but the impact could be limited in Georgia.
An attorney with the Virginia-based Institute for Justice who represented appellant Tyson Timbs, hailed the decision in Timbs v. Indiana as groundbreaking for the targets of civil forfeiture. The practice has united critics across the political spectrum who decry it as a tactic too often used to raise revenue from people often charged with minor offenses, acquitted or never prosecuted.
“The decision is an important first step for curtailing the potential for abuse that we see in civil forfeiture nationwide,” said institute lawyer Samuel Gedge, who represented Timbs with colleague Darpana Sheth.
The American Civil Liberties Union, which filed an amicus brief supporting Timbs, said it was thrilled the justices unanimously said the Eighth Amendment’s Excessive Fines Clause applies to state and local authorities, as well as the federal government.
But the ruling was less popular within Georgia’s law enforcement community.
In the wake of last Wednesday’s ruling, Georgia Sheriffs’ Association Executive Director Terry Norris hailed civil forfeiture as “the greatest crime-fighting tool we’ve ever utilized” and fretted that the opinion would make it harder to seize ill-gotten gains.
Putnam County Sheriff Howard Sills told The Atlanta Journal-Constitution that he feared “an excessive fine claim is going to be asserted in every forfeiture action” and that “prosecutors will eventually stop doing it.”
So what do the folks on the legal frontlines in Georgia think?
According to those on both sides of the criminal bar, the reaction is mixed.
Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia, said the “Bottom line, the Timbs decision will have no impact on Georgia prosecutors.”
A PACGA advisory sent out in the wake of Timbs said that Georgia case law already comports with Austin.
“Relying on Austin, our Supreme Court held in 1994 that the prohibition against excessive fines of the Eighth Amendment applies to civil in rem forfeitures,” it said, citing Thorpe v. State, 264 Ga. 712. “Trial courts are required to use [a] three-part “gross disproportionality” test … for deciding if a forfeiture is unconstitutional under the Eighth Amendment.”
Merchant Law Firm partner Ashleigh Merchant, who chairs the Georgia Association of Criminal Defense Lawyers’ legislative committees, said Timbs is “a wonderful decision because the local sheriffs have had far too much incentive to abuse their power by taking property and money that far out-values the maximum punishment for the alleged offense.”
Such authority “has been relatively unchecked, because defendants don’t know how to challenge these forfeitures, and oftentimes hiring a lawyer costs more than the amount of money that was taken,” Merchant said.
“I have had a large number of clients decide to abandon their property and money to forfeiture actions because the legal fees might end up being greater than the property the government took.”
But fellow defense lawyer Manny Arora of Arora & LaScala said the uproar was “much ado about nothing.”
While criminal forfeiture requires a showing that property or money is the fruit of criminal activity, civil forfeiture can be applied much more broadly.
Arora pointed to the millions of dollars in property and cash seized by “special prosecutors, or private attorneys appointed by local district attorneys to oversee forfeiture operations against the operators of stores and gas stations accused of allowing illegal gambling on coin-operated machines.
“Civil forfeiture suits in Georgia move a lot faster through the system and require a lot less evidence [and] burden of proof vs. waiting for a conviction,” Arora said.
Norris said the sheriffs may also not be as impacted as he earlier believed.
“We have now learned the ruling may not affect Georgia as much as other states,” he said in an email.