February 2015

red stateThe Federalist has a piece up positing that Conservatives are outdoing Liberals at criminal justice reform. Until recently, I would not have taken an article like this seriously. I’m now a few weeks into my time as the Legislative Chair of the Georgia Criminal Defense Lawyers. In that time, I’ve watched a groundbreaking new eyewitness identification bill make it out of the Senate unanimously. And I testified as a witness before a subcommittee of the Georgia House Judiciary Non-Civi Committee on a very progressive DUI implied consent bill to limit forced blood draws to only the most serious cases. I was impressed with the level of engagement as well as the pushback when a line of prosecutors testified.

We may be permanently a red state, but I’m pleasantly surprised. And I think the Federalist society may be right.

In Georgia, juries generally don’t get to decide the sentence. Only where the State is seeking death does the jury get a hand in sentencing. Not only do Georgia juries not get a say in sentencing decisions, our law is designed not to let them know a great deal about what might happen at sentencing. The idea is that jurors might be swayed by sympathy in the guilt-innocence phase of the trial if they knew what was in store for the defendant after a guilty verdict. For instance, an armed robbery conviction in Georgia carries with it a minimum mandatory ten years to serve without the possibility of parole. For certain repeat offenders, a guilty verdict means life without the possibility of parole. Jurors are not told about minimum mandatory sentences unless they stay to watch the sentencing hearing.

Scott Greenfield posted at Simple Justice about a Federal Judge who consulted with the jury on what a fair sentence ought to be in a case. Turns out that most jurors would sentence well below the sentencing guidelines. And I imagine, on the State side, that jurors would often sentence below the minimum mandatory.

A few months ago, I tried a case in Federal Court where the jury reached a guilty verdict. I noticed that many of the jurors were crying as they walked into the courtroom (never a good sign). After it was all over, they asked me to come back to the jury room to talk to me about their decision. They then asked the prosecutor to be lenient.

In between the verdict day and the ultimate sentencing date, I consulted with many colleagues who regularly practice in Federal Court about whether it would be a good idea (or even ethical) to invite jurors back to testify in mitigation. Opinions varied, but the consensus was that I should not do it. There was no way to know how a judge might respond to this kind of testimony or whether such a move might appear to be a stunt. I ultimately decided against doing it, thinking that the potential downside outweighed the potential good. After all, the judge saw the same trial they did. And he hopefully saw things the way they did.

When it was all over, my client received a sentence significantly below the guidelines.

Scott Greenfield’s blog post raises an interesting question. Should jurors have a role in the sentencing process in more cases? And could jurors be consistently be counted on to recommend or impose a sentence below guidelines or below a mandatory minimum?

Philosophically, I don’t think I’m into the idea of jurors imposing sentence. There’s a reason that we give jurors their job and judges theirs. However, it’s appealing to me to wonder if legislatures would be as prone to enact mandatory minimums if they were taking the sentencing power away from jurors rather than judges? I’m not sure what the answer is. I suppose they would do in the sentencing world what they’ve done to damage caps in the civil world. However, the minimum mandatory universe makes me a little less certain about whether juries should have a hand in the sentencing process. Perhaps outraged jurors would put pressure on their legislature to eliminate some mandatory minimums.

This year, I am the new legislative chair of the Georgia Association of Criminal Defense Lawyers. A big part of that job involves evaluating bills before Georgia’s General Assembly and reporting on them to our membership and to our lobbyist. When I make those reports, I am also going to take what I am learning and discuss it here.

One of the most tragic moments I see in the average criminal calendar (and there is much from which to choose) is the forfeitures section. Generally, it comes at the end of the morning. The DA picks up some files and sounds for the forfeiture cases. At which point either nobody answers and the property or money is forfeited to the state by default. Or some unrepresented person stands up. Often, the person who stands is a mom or a dad whose son was arrested for drugs. And the person is the owner of the car. Generally, that person loses before he knows what hit him because he either didn’t file an answer or failed to follow some arcane technical procedure from within the forfeiture code.

HB 233 seeks to reform Georgia’s forfeiture statute and fix some of the things that are wrong with it. I don’t think I’ll ever get my wish to do away with forfeiture altogether. Georgia’s law enforcement will continue to have a license to steal. Under the new statute, the stealing is going to get a bit more fair and possibly much less corrupt.

This Bill is a monster. It’s 111 pages long. I’ll summarize a few points below. And you can check out some of the background. Politifact has noted that Georgia’s current forfeiture statute is among the worst in the country and the worst in the South. The Savannah Morning News has called civil forfeiture “Georgia’s Dirty Little Secret.” The article goes on to point out:

Georgia is one state where the property can be seized and held even if it does not belong to the perpetrator of the crime. If the criminal is driving the parent’s car, for example, or conducting drug deals in a home owned by someone else, that property can be seized. And the legitimate owner’s fight for its return can be lengthy and expensive. Meanwhile, the owner is deprived of the use.

What’s Good

Here are some of the main improvements in the new forfeiture bill by reference to line number.

  • lines 120 ff. I like that law enforcement has to make a reasonable effort to seek out the innocent owner of a vehicle. I’ve seen many moms and dads lose vehicles without ever getting served or otherwise getting notice of a pending forfeiture;
  • Lines 183 ff. The forfeiture lien is a less drastic alternative to seizure of real property.
  • Lines 238 ff. The option to sell a perishable or depreciating asset or an asset whose value may be greatly reduced over time is a much needed improvement. I’ve seen property owners prevail in forfeitures only to see the value of the property eaten up by impound fees.
  • Lines 390 ff. This may be the best improvement of all. If the answer is defective in some way, the State must file a motion asserting what the defect is. And the claimant can amend the answer. This corrects the biggest evil in the current statute. As it stands now, the forfeiture is confusing with a set of Byzantine procedures. It’s really a big game of “gotcha.” It’s a rare calendar that doesn’t feature some poor pro se forfeiture claimant who loses by default over some technical thing or another. This is a major fix to current law.
  • 407 ff. There is no right to discovery. However, upon good cause, the court con order that discovery be had. There’s obviously good and bad here. The good, is that a criminal defendant need not be placed in a position where he has to choose between his 5th amendment rights and defending the forfeiture. It’s bad in the sense that I’ve often used the discovery process in a forfeiture to get discovery for the criminal case. This would come in particularly handy where the forfeiture involved something of nominal value.
  • 668 ff. I like that the judge has some discretion over where the money goes. Forfeiture is less a “license to steal” under the proposed new regime than the old law.
  • 797 ff. I like the annual report feature. Forfeiture funds are less of a “slush fund” than under current law. And there’s way more accountability
  • 740 ff. We shall call this section of the Bill the “David McDade Memorial Passage.” This section will make it illegal to pay for staff with forfeiture funds. Much needed improvement

What’s Still Bad

There is still a good bit about forfeiture that is not very good.

  • The bill needs language that explicitly requires the attorney who brings a forfeiture be either an elected DA or an assistant DA working on salary. I’ve always found the hired gun / plaintiff’s lawyer on contingency system to be offensive. There is a small cottage industry of lawyers who set themselves up with local DAs on contingency arrangements. This bill doesn’t put them out of business.
  • I don’t think that the bill goes far enough to dis-incentivize the outright theft of private property. Ideally, the local law enforcement agency should not be allowed to keep what they take. This system would be less corrupt if the seized assets could all go to a centralized statewide pool of funds to be awarded at the discretion of a non-local board in the form of grants. As long as the seizing agency has the first claim on the property, there’s an incentive for corruption. I suppose that the sheriff’s and police chief’s lobby is too powerful to do anything about this.

The best news would be the elimination of forfeiture or for the local seizing agency to give what they take to a statewide pool. However, short of that, the new forfeiture bill makes many steps in a better direction.