Hb 233 - Civil Practice: Georgia Uniform Civil Forfeiture Procedure Act

• Jurisdiction: Georgia,United States
• Publication year: 2015
• Citation: Vol. 32 No. 1

HB 233 - Civil Practice: Georgia Uniform Civil Forfeiture Procedure Act

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CIVIL PRACTICE

Georgia Uniform Civil Forfeiture Procedure Act: Amend Title 9 of the Official Code of Georgia Annotated, Relating to Civil Practice, so as to Provide a Comprehensive Civil Forfeiture Procedure; Provide for a Short Title; Provide for Definitions; Provide for Jurisdiction and Venue; Provide for Innocent Owners; Provide for Seizure of Property; Provide for Notice and Time Frames for Notice to Interested Parties; Provide for Forfeiture Liens; Provide for Storage of Property; Provide for Quasi-Judicial Forfeiture, In Rem Forfeiture, and In Personam Forfeiture; Provide for Temporary Relief and Stays of Criminal Proceedings; Provide for Intervention by Certain Parties under Certain Circumstances; Provide for Presumptions and the Burden of Proof; Provide for the Disposition of Seized Property and Reporting; Provide for the Effect of Federal Law Forfeitures; Amend Section 60 of Part 1 of Article 4 of Chapter 12 of Title 15 of the Official Code of Georgia Annotated, Relating to the Qualifications for Grand Jurors, so as to Prohibit Certain Individuals from Serving as Grand Jurors; Prohibit Quashing of Indictments when Ineligible Grand Jurors Serve on a Grand Jury; Amend Title 16 of the Official Code of Georgia Annotated, Relating to Crimes And Offenses, so as to Conform Provisions to the New Chapter 16 of Title 9, Correct Cross-References, and Remove Obsolete or Improper References to Forfeiture; Amend Titles 3, 5, 7, 10, 12, 15, 17, 27, 36, 38, 40, 45, 46, 48, 49, and 52 of the Official Code of Georgia Annotated, Relating to Alcoholic Beverages, Appeal and Error, Banking and Finance, Commerce and Trade, Conservation and Natural Resources, Courts, Criminal Procedure, Game and Fish, Local Government, Military, Emergency Management, and Veterans Affairs, Motor Vehicles and Traffic, Public Officers and Employees, Public Utilities and Public Transportation, Revenue and Taxation, Social Services, and Waters of the State, Ports, and Watercraft, Respectively, so as to Conform Provisions to the New Chapter 16 of Title 9, Correct Cross-References, and Remove Obsolete or Improper References to Forfeiture; Provide for Related

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Matters; Provide for an Effective Date and Applicability; Repeal Conflicting Laws; and for Other Purposes

Code Sections: O.C.G.A. §§ 3-10-10, -11, -12 (amended); 4-3-8 (amended); 5-5-41 (amended); 7-1-11, -916 (amended); 9-16-1, -2,-3, -4, -5, -6, -7, -8, -9, -10, -11, -12, -13, -14, -15, -16, -17, -18, -19, -20, -21 -22 (new); 10-1-454 (amended); 10-13A-8 (amended); 12-4-48 (amended); 12-5-133 (amended); 12-5-137 (amended); 12-8-2 (amended); 15-6-95 (amended); 15- 12-60 (amended); 15-21-2, -3, -4, -5, -7, -8, -9, -13, -50, -51, -52, -54, -55, -56, -57, -58 (amended); 16- 5-44.1, -46 (amended); 16-6-13.2, -13.3 (new); 16-7-95 (amended); 16-8-5.2, -60, -85, -106 (amended); 16-9-4 (amended); 16-11-11 (amended); 16-12-24, -30 (amended); 16-12-32 (new); 16-12-100 (amended); 16-13-30.1, -30.2, -30.4, -32, -32.1, -48.1 (amended); 16-13-49, -53, -58 (amended); 16-14-1, -2, -3, -4, -5, -6, -7, -8, -10, -11, -12, -13, -14, -15 (amended); 16-15-5 (amended); 16-16-2 (amended); 17-5-51, -52, -52.1, -54 (amended); 24-13-132 (amended); 27-1-14 (amended); 27-3-12, -26 (amended); 27-4-133, -134, -137 (amended); 36-15-9 (amended); 36-30-9 (amended); 36-31-8 (amended); 36-32-6, -7, -8, -9, -10, -10.1 (amended); 36-35-6 (amended); 36-80-21 (amended); 38-2-464 (amended); 40-5-124 (amended); 40-6-391.2 (amended);

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40-11-20 (amended); 40-11-21 (new); 40-11-22, -24 (amended); 40-13-22 (amended); 40-16-7 (amended); 42-9-45 (amended); 45-15-10 (amended); 46-9-253 (amended); 48-4-61 (amended); 49-4-146.3 (amended); 52-7-7.3, -7.4 (amended)

Bill Number: HB 233

Act Number: 98

Georgia Laws: 2015 Ga. Laws 693

Summary: The Act provides a comprehensive civil forfeiture procedure. The Act also amends sections relating to the qualifications for grand jurors, so as to prohibit certain individuals from serving as grand jurors and to prohibit the quashing of indictments when ineligible grand jurors serve on a grand jury. The Act also amends sections relating to crimes, offenses, and regulations to conform those Code sections with the new civil forfeiture legislation.

Effective Date: July 1, 2015

History

Civil asset forfeiture in America predates independence from England.¹ By 1696, the English Crown had codified its power to issue "writs of assistance" allowing customs officials to enter colonial homes or vessels and confiscate smuggled goods.² in a February 1691 hearing discussing the legitimacy of writs of assistance, Boston merchants characterized writs as "the worst

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instruments of arbitrary power," as the writs could issue to any revenue or customs officer (or their subordinates) in perpetuity, and authorized searches unsupported by any oath attesting to the suspected presence of contraband.³ Thus, these writs were "among the key grievances that triggered the American Revolution."⁴ Ultimately, following the American Revolution, those opposing the writs called for these writs to be abolished through "judicial nullification of parliamentary law" because they were contrary to the Constitution.⁵ The Bill of Rights prohibits "unreasonable searches and seizures"⁶ and declares that no one will be deprived of "life, liberty, or property, without due process of law."⁷ Although the deprivation of property without due process runs contrary to the Bill of Rights, the United States Supreme Court held that civil asset forfeiture was necessary to enforce piracy, customs, and admiralty laws, as the vessel owner could be overseas and thus out of reach of an in personam action.⁸ Proceeding in rem—treating "[t]he vessel which commits the aggression . . . as the offender"—required "[no] reference whatsoever to the character or the conduct of the owner."⁹

In rem procedures are the heart of civil asset forfeiture.¹⁰ Unlike criminal forfeiture (an in personam action where a person stands trial and forfeits property only after conviction), civil forfeiture charges the property itself with breaking the law.¹¹ Because civil forfeiture is

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an in rem procedure against property, the action proceeds without regard to the owner's due process rights.¹² For example, property has no right to court-appointed counsel; the owner must take on the expense of representation, which may outweigh the value of recovering forfeited items.¹³ Further, there is no presumption of innocence for the property; the owner must prove valid ownership of the assets.¹⁴ Finally, in an in personam criminal proceeding, the state must prove the person's guilt beyond a reasonable doubt before depriving him of property; however, in an in rem civil action, the state must only prove by a preponderance of the evidence that the property is connected to illegal activities.¹⁵

Modern civil asset forfeiture first emerged in the 1970s, when the federal government enacted statutes allowing law enforcement to seize property from drug lords and crime bosses.¹⁶ Congress enlarged these laws to enable seizure of money and goods involved in illegal drug production, and later expanded them to include anything authorities thought drug money was used in purchasing.¹⁷ In 1984, Congress passed the Comprehensive Crime Control Act.¹⁸ This Act established the "Department of Justice Assets Forfeiture Fund," through which local police, who assisted the federal government in seizing assets, could keep a large percentage of the seized assets.¹⁹ After the federal government's system proved successful, states began to follow the federal government's example by enacting their own civil forfeiture laws.²⁰ But while federal agents targeted assets of

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white-collar criminals, organized-crime barons, and dictators, state forfeiture cases generally dealt with less serious offenders and smaller amounts of money.²¹ For example, in 2011, fifty-eight local, county, and state police departments in Georgia netted $2.76 million in forfeitures, but over half of the taken items were worth less than $650.²²

States also varied widely in the rules they promulgated.²³ On the federal level, reforms were on the rise,²⁴ while state and local level controls on asset seizure procedures, reporting, and spending remained loosely implemented.²⁵ Minimal oversight typically means police can seize and spend assets, often without reporting the asset's source or disposition.²⁶ Activist groups, like Georgians for Forfeiture Reform, have called for legislative changes to improve reporting requirements, seeking more transparency and public accountability.²⁷ However, Georgians are already supposed to have access to statewide forfeiture data by virtue of legislation passed in 2010 that required each agency to electronically report seizures to the University of Georgia's Carl Vinson Institute for Government website.²⁸ The information in this reports database is sparse, however, because a lack of clarity in reporting procedures and lack of consequences for poor reporting.²⁹

Pursuant to this 2010 law, law enforcement agencies were required to make yearly reports available to the public; however, district

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attorneys were not.³⁰ District attorneys' offices could receive up to ten percent of the proceeds from forfeitures they were involved in and could spend the money on "any and all necessary expenses for the operation of the office . . . ."³¹ As such, the lack of transparency and broad spending discretion led to scandals over how forfeited assets were used.³² In contrast, when seized funds are placed in a neutral account (like a state general operating fund or a public education account) states can generally avoid major forfeiture-abuse scandals.³³ Problems tend to arise in states like Georgia because there are so few restrictions on how law enforcement agencies can use forfeiture proceeds.³⁴

Georgia's civil-forfeiture laws...