As part of my work being a criminal defense lawyer in Atlanta and elsewhere, I recently gave a speech to some attorneys about civil asset forfeiture, which is the legal proceeding through which the police seize and then “forfeit” property. The seizure is often part of or accompanies and is parallel to a criminal investigation. Some recent matters made me think more about this whole process, and how myself and other criminal defense attorneys need to do a better job in protecting not only our client’s freedom, but their property as well.
The first matter is a recent article that discusses the Supreme Court case from a month or so ago in which all nine justices agreed that the Constitutional protections against “excessive fines” means that there needs to be some proportion between the crime and the property seized by the police even if the case is in the state court system. That was the now-famous Timbs case in which the police took a $40,000 Range Rover that Mr. Timbs had bought with the proceeds from his parent’s estate. The State of Indiana decided to seize the vehicle through the forfeiture process simply because Mr. Timbs foolishly had a relatively small amount of drugs in his possession when he was stopped. The article points out how the case merely means that the constitutional protection against an excessive seizure applies to all the States. The Timbs decision did not says what is, or what is not, excessive. The article points out that question that will be left to future rulings. The author quotes lawyers on both sides, prosecutors and defense counsel. A prosecutor who was quoted claimed that she gave up on seizing some property because the value of the seized item was so small that it did not justify the amount of work she was going to have to put into the forfeiture process. As a result, she supposedly let the defense attorney get the property back for his client. Apparently, fairness, justice and equity do not matter all that much to this prosecutor, for she is simply worried about how many hours she works.The comment from the prosecutor led to my second thought regarding forfeitures: “smaller” forfeitures are often not worth fighting against from the property owner’s perspective. Here is how this plays out in the real world. Forfeiture begins when some law enforcement officer decides to “seize” property because there is reason to believe that property was used in, part of or purchased with the proceeds of a crime. Other times, property or money is taken as a “substitute asset” in place of the property that was directly connected to a crime. The owner can then fight against the forfeiture, but that costs money. Some lawyers charge by the hour, others take on forfeiture matters on a contingency basis, meaning they get paid a percentage of any recovery. In either situation, it will often be difficult to justify paying legal fees to fight against the seizure of property valued at less than$25,000. The lawyer’s fees will eat up a significant part of any recovery, so as a result, many clients simply let the government keep the property, even if there was no justification at all for the seizure in the first place!
Finally, these recent developments showing that forfeitures cannot be “excessive” led me to thinking about other times that people simply give up and let the police take their property. The property owner is sometimes, but not always, investigated for or charged with a crime that is connected to the seized property. If so, most criminal defense attorneys tell their clients that fighting against the forfeiture can be dangerous when there is a possible or ongoing criminal case. Every situation is different, but some prosecutors are able to use the lawyer’s arguments or the Defendant’s words in the forfeiture case against the Defendant in the parallel criminal matter. As a result, I sometimes advise my client to let the property go and worry about the criminal case.
The recent Timbs case and publicity has made me think more about ways to protect my clients from forfeitures. I hope that the lawyers likewise have rekindled their urge to fight against these seizures.