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. Continue reading