“Everyone’s a little bit racist”

By Paloma Wu, Legal Fellow, ACLU of Pennsylvania

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At this American civil rights impasse, we are up against a powerful and dangerous fantasy: the delusion that our intention to be race neutral makes us so, and the delusion that our intention not to discriminate means we don’t. No longer are slur-hurling city officials, police-protected lynch mobs, and smoke-filled redlining rooms the most formidable force opposing equality in America. It is all of us.

A growing body of research on implicit racial bias shows that about 75% of whites and Asians demonstrate an implicit bias in favor of whites compared to blacks, and over 200 related published studies show that implicit bias influences judgment, decisions, and behavior. An onslaught of images, lore, and language continuously tie brown and black skin in with the negative. Implicit racial bias operates powerfully but in the background, at the unconscious level, impacting our judgment and shaping our decisions such that we often act contrary to our conscious intent to behave in a race neutral way. Most insidiously, our implicit racial bias calls the shots without us registering that it has. We reason away the race biased logic that formed the basis of our decision, and we cleave to the far more flattering race-blind version of ourselves that we deeply personally identify with.

Since taking the well-validated Implicit Association Tests (“IATs”), I cannot claim to be more sturdily built. I am ashamed, but not surprised, to learn that I strongly associated black people with having weapons on the Weapons-Harmless Objects IAT, and that was just the beginning. Despite who I am, what I have done with my life, who I intend to be, and that I am neither white nor male, I am a petri dish of implicit racial and gender bias. Sharing my corner of shame: most of the eight million IAT takers, including Malcom Gladwell. Gladwell, who is half black, deftly explained in his bestselling book, “Blink,” that his “moderate automatic preference for whites” on the IAT left him “feeling creepy.” For others, the revelation of racial bias is embarrassing, deeply humbling, and disturbing.

After you take a few IATs, consider this:

  • White Americans, on average, vastly overestimate the criminality of blacks.
  • Many Americans incorrectly believe that black Americans use more drugs than whites: five times as many white than black people use drugs in this country, but black Americans are sent to prison for drug offenses at 10 times the rate as white Americans.
  • “Shooter bias” studies show that black and white shooters both show bias against blacks in both response times and errors, meaning we will shoot black people more often and faster than we will whites.
  •  In shooter bias studies, we even pick up the pace if first shown a negative media article about a black perpetrator of a crime.
  •  Americans of all races more often see blacks as perpetrators and whites as victims; in one study, 70% of viewers of a crime story who falsely recalled seeing a picture of the perpetrator believed that perpetrator had been a black man.

Then consider how a blazing color line separates blacks and whites in crime and punishment:

A select few departments are trying to incorporate racial bias training to curb the tide, but the tide is nearly as powerful as our fantasy that it does not exist. The common refrain of police officers, elected officials, district attorneys, and policy makers with skin in this game is not “We Shall Overcome,” but rather—“We Did Not Intend.” But our knowledge about implicit racial bias in this era of political correctness renders the intent issue moot. Equal protection questions can only be addressed through data and analysis—do our laws in fact discriminate and are they in fact discriminatorily enforced. There is no silver bullet, but it is a necessary step, along with our acceptance of implicit racial bias as the norm: the unintentional constant that we must build in to any algorithm we use to formulate a next step—if we want it to be forward.

Also, feel free to sing along to this Avenue Q song, for a boost with the acceptance part…

(Stay tuned for Part 2 of this post: “The Effects of Implicit Racial Bias in Law Enforcement and Lessons from the Era of Anti-Lynching Legislation.”)

This post is part of a series in honor of Black History Month.

Paloma Wu joined the ACLU as an awardee of the 2014 Simpson Thacher & Bartlett LLP Public Service Fellowship. As a Simpson litigation associate, Paloma worked on antitrust, securities, and intellectual property matters, and she represented clients in successful prisoner civil rights (Pogue v. Diep) and asylum cases.

What We Know (and Don’t Know) about Racial Profiling in Pennsylvania

By Sara Rose, Staff Attorney, ACLU of Pennsylvania

Philadelphia Police - cruiser on Ben Franklin Parkway

Almost four years after Philadelphia agreed to reform its policing practices to reduce racial profiling, little improvement has been made. Philadelphia police still stop and frisk African-American and Hispanic pedestrians at rates substantially higher than whites. Philadelphia, unfortunately, is not alone in targeting minorities for stops and pat-downs. Most cities that keep data on pedestrian stops show similar disparities. Perhaps more troubling, however, is that few police departments require their officers to record any data on pedestrian stops or pat-down searches, making it impossible to know the breadth of the problem.

Racial profiling refers to the practice of targeting people for stops, interrogations and searches without evidence of criminal activity and based on individuals’ perceived race, ethnicity, nationality or religion. The U.S. Supreme Court has held that stopping an individual on account of his or her race, even if there is another legitimate reason for the stop, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Twenty years ago, much of the focus on racial profiling was on traffic stops following the I-95 “turnpike” studies, which showed huge disparities in the number of African-American drivers stopped by police compared to whites. Many law enforcement agencies, including the Pennsylvania State Police, now require officers to record data, including the race of drivers, when they conduct traffic stops. But there is no federal or Pennsylvania law that requires local police departments to keep data on traffic or pedestrian stops, even when police search the vehicle or person.

This lack of data leads to the perception that racial profiling is an urban myth. At a recent community forum in Pittsburgh, a police commander actually responded to a question about racial profiling by stating that “racial profiling does not exist.” But he had no way of knowing whether his officers engaged in racial profiling because Pittsburgh does not require its officers to record data on pedestrian stops.

Statewide legislation is needed to ensure that police departments track the race or ethnicity of individuals stopped by police and the reasons for those stops. The Fourth Amendment requires police officers to have reasonable suspicion that crime is afoot and that the individual stopped is involved in it before detaining that person on the street. To frisk the person, the police officer must have reasonable suspicion to believe that he or she has a weapon.

Our review of pedestrian stops in Philadelphia shows that 37 percent of the over 200,000 pedestrian stops in 2014 were made without reasonable suspicion to believe that the individual was involved in a crime, and only 47 percent of the frisks were made based on reasonable suspicion that the individual was armed. In 95 percent of all frisks, no evidence was seized.

These stops and frisks also disproportionately targeted minorities. Although Philadelphia’s population is 42.26 percent white, 43.22 percent black, and 8.5 percent Hispanic, 80.23 percent of stops were of minorities. The disparity was even greater for frisks, with minority residents accounting for 89.15 percent of frisks.

It is highly likely that similar rates of racial disparities and suspicionless stops would be found in other Pennsylvania cities if the data were available. A 2002 study that looked at vehicle and pedestrian stops by the Erie police over a six-month period found a significant racial disparity in vehicle stops, pedestrian stops, and searches. Indeed, essentially all studies of racial profiling find evidence of racial disparity. This had led to requirements that police departments collect and analyze data on stops. Seventeen states require police to collect data on traffic stops and thousands of police departments across the country collect pedestrian-stop data, including Chicago, Cincinnati, Dallas, Los Angeles, Miami, Milwaukee, New York, and San Francisco.

In addition to mandating that police departments collect and analyze data on stops, the Pennsylvania legislature can require police departments to implement practices that promote fair and impartial policing, including:

  • Having a detailed written policy that prohibits racial profiling and clearly defines acts constituting racial profiling;
  • Informing individuals that they have the right not to consent to a search; and
  • Barring the use of agency funds, equipment or personnel for the purpose of detecting noncitizens who are in violation of immigration laws and prohibiting officers from asking individuals about their immigration status.

The state can also mandate police officer training on racial profiling, both as part of officers’ initial training and their mandatory in-service training.

While these steps will not eliminate racial profiling, they will reveal where it is occurring and counter the “racial profiling does not exist” mindset of many in law enforcement. After all, choosing who to stop or search based on race or ethnicity is not an effective law-enforcement strategy. Although African Americans and Latinos are more likely to be stopped and searched by police than whites, they are less like to have weapons or contraband than whites who are searched. Law enforcement should be based on best practices, not stereotypes. Thirty other states have adopted laws addressing racial profiling. Pennsylvania should join them.

This blog post is part of a series for Black History Month.

Sara J. Rose is a staff attorney in the organization’s Pittsburgh office. Before joining the ACLU of Pennsylvania, she was a legal fellow with Americans United for Separation of Church and State.

It’s Time to Get Real About Race and the Death Penalty

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

SQ Lethal Injection Room

Two weeks ago, Governor Wolf announced a moratorium on executions in Pennsylvania and granted a reprieve from execution to Terrance Williams, who was scheduled to be executed on March 4. Wolf will continue granting reprieves- a power he is granted by law – until an analysis commissioned by the state Senate returns with its recommendations and “all concerns are addressed satisfactorily.”

In his announcement of the moratorium, Wolf referred to capital punishment as “unjust” and cited several reasons for using the word. In his memorandum that explained the moratorium, he spent several paragraphs discussing the role of race in capital punishment.

Death penalty abolitionists don’t use race as one of their top tier messages, and who can blame them? A 2007 survey found that support for capital punishment actually goes up when white respondents hear messages of racial disparity. White America is still sticking its collective fingers in its ears when it comes to race and the criminal justice system.

Pennsylvania has consistently shown a penchant for sentencing black defendants to death. According to the Death Penalty Information Center, of the 188 people on death row in the commonwealth, 120 of them, or 64 percent, are people of color, as of October 1, 2014. Over the 15 years that I have been involved in death penalty repeal work, that number has been as high as 70 percent.

A study by Professor David Baldus and his colleagues at the University of Iowa found that a black defendant in Philadelphia was 3.9 times more likely to receive a death sentence than a white defendant in a similar case.

The Baldus study was 17 years ago and was based on data from 1983 to 1993. As part of the Senate-supported analysis, researchers are trying to update the question of race and the death penalty in Pennsylvania. Unfortunately, according to one of my sources, at least one high-profile district attorney stymied that work for months by refusing to release data from his county on race in capital cases. He was ultimately persuaded but only after much cajoling. Some public officials just don’t want to talk about facts in the death penalty debate.

The race of the victim may play an even greater role in deciding who lives and who dies. Homicide victims are white in about 50 percent cases. But since the Supreme Court reinstated the death penalty in 1976, the victims were white in 76 percent of cases that ended in execution.

There are many reasons why capital punishment is slowly being swept into the dustbin of history. Since 2007, six states have repealed their death penalty statutes, bringing the total of non-death states to 18. In 2014, only seven states carried out executions, and 80 percent of those were in three states. Governor Wolf did the right thing in bringing a halt to the machinery of death, and he used the right word to describe it- unjust.

To learn more about the debate over Pennsylvania’s moratorium on executions, check out the discussion on WITF-FM’s Smart Talk, which featured Spero Lappas, who is a member of the ACLU of PA’s South Central Chapter board, a retired criminal defense attorney, and former cooperating counsel with ACLU-PA.

Andy Hoover is the legislative director of the ACLU of Pennsylvania and is the former chair of the board of Pennsylvanians for Alternatives to the Death Penalty.

This blog post is part of a series for Black History Month.

12 Things You Need to Know About Civil Asset Forfeiture

By Ben Bowens, Communications Associate, ACLU of Pennsylvania

You’ve probably been hearing a lot about civil asset forfeiture recently. It’s been in the news, featured on John Oliver’s Last Week Tonight and we’ve been talking about it a lot lately. Since this issue can get bogged down with a lot of legal jargon, I’ve decided to break down the most important aspects of this practice in a way everyone can understand… GIFS! (Most of this will fill you with rage. You have been warned!)

1. Civil asset forfeiture is a law enforcement practice that lets police take property they claim is tied to a crime. The problem with that is that the law doesn’t actually require police to charge or convict anyone of a crime before taking their stuff. Wait, what?

2. You may not be guilty, but according to the police, your stuff (and your money) is. Yes, prosecutors can file forfeiture claims against your property in civil court. (See United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls) What the…?

3. SHOW UP! According to research, the majority of civil forfeitures are “by default” meaning the property owner didn’t show up and the prosecutors never had to offer proof to a judge. Oh, come on now!

4. Often times, many owners aren’t even notified that their property has been forfeited. That feeling you have in the pit of your stomach is rage building.

5. The cost of court vs. the amount you’ve already lost. Often times the value of the property taken is relatively small (like $200 cash), meaning that hiring a lawyer and taking time off work could potentially be more financially taxing than what you’ve already lost. U mad?

6. Pennsylvania makes $13 Million in profits from forfeitures annually. (Check out the stats!)

7. All of the money goes to the prosecutors and the police budgets. Hmmm… can you say financial motive?

8. Things get worse when you’re brown. According to the ACLU, asset forfeiture practices often go hand-in-hand with racial profiling and disproportionately impact low-income African-American or Hispanic people.

9. Philly is by far the worst offender in Pennsylvania! The city of brotherly love’s police force rakes in about $5 million each year, with the DA’s share accounting for 10% of the budget. Turns out it’s rarely sunny in Philadelphia :(

10. Is reform even possible? Maybe, states like Minnesota and Utah and D.C. have taken steps to reform forfeiture by disrupting profit incentives and forcing convictions. However, before you can ‘fix’ the law, you’d first need to fix the idea behind the law.

11. What is criminal asset forfeiture? Thanks for asking! CRIIMINAL asset forfeiture is when law enforcement is only able to take your stuff if its actually part of an underlying criminal case AND only after you’ve been convicted of an actual crime. A faint light is starting to appear at the end of the tunnel!

12. Remove the profit motive! What if the money and property seized from legitimate forfeiture claims went to the state or county funds? Seems like you’d have about $13 million extra lying around to fund all sorts of things like, I don’t know, EDUCATION!

TAKE ACTION NOW! The silver lining on all of this is that you can do something about it RIGHT NOW! We’ve set up a page that will allow you to contact your state representative and urge them to support legislation that is being introduced this session. If you’re an organization, you can also join the Coalition for Forfeiture Reform.

Ben Ben Bowens is a social and digital media specialist. Before joining the ACLU of Pennsylvania as the Communications Associate, he served as the Digital Media Producer for CBS3/KYW-TV, where he covered the 2008 election and launched the station’s social media presence.

Part II: How to Reform Forfeiture

By Scott Kelly, Legal & Policy Fellow, ACLU of Pennsylvania

Civil Asset Graphic_1_Logo

Last week in Part I of our blog series on forfeiture, “Why Civil Forfeiture Is Broken”, we talked about how reporter Isaiah Thompson pulled a thread and unraveled the story of civil forfeiture in Philadelphia. In other counties and other states, reporters and commentators have been pulling their own threads, leading to exposés of forfeiture abuse both small and large, both deadly serious and seriously funny.

The result of all this attention is that the tide is turning against a practice that lets the government take people’s property with near total impunity – and meaningful forfeiture reform finally looks like a real possibility. States like Minnesota and Utah and the District of Columbia have already taken positive steps in the direction of reform – by, for example, disrupting the profit incentive and strengthening the burdens of proof prosecutors must meet to forfeit property. And United States Attorney General Eric Holder recently issued a policy order limiting the ability of state law enforcement to profit from civil forfeitures under federal law.

Beyond Repair

But the lessons of the past caution against trying to “fix” civil forfeiture. Over a decade ago, Congress tried exactly that when it passed a comprehensive overhaul of federal civil forfeiture law meant to address the disturbingly high number of defaults – forfeitures that happened without a property owner even reaching a hearing before a judge. Called the Civil Asset Forfeiture Reform Act of 2000, the legislation enacted a number of supposed “fixes,” including a provision forcing the government to prove its case and another awarding attorneys’ fees to owners who successfully defended their property against forfeiture. But even with these added restraints in place, the federal government civilly forfeits more assets today than ever before, leading commentators to conclude that “virtually nothing has changed.”

That’s because civil forfeiture isn’t a broken law. It’s a broken idea rooted in a fundamental contradiction: that the government can forfeit property connected to a crime without proving that the crime actually happened. The only way to “fix” this basic contradiction is to abandon it. Even former heads of the federal government’s Asset Forfeiture Office agree, writing in a recent Washington Post Op-Ed that civil forfeiture is “unreformable.”

A Better Way

Gavel graphic

Meaningful forfeiture reform has to end “unreformable” civil forfeiture laws and replace them with a system that works. That system – called criminal asset forfeiture – requires that forfeiture happens only as part of an underlying criminal case and only after a person is convicted of an actual crime. Criminal forfeiture already exists as one option under Pennsylvania law, but legislation should make it the exclusive procedure for forfeiture. That way every property owner facing forfeiture would get the full range of protections the Framers provided for people accused of crimes.

Good forfeiture reform would also put an end to the profit motive by making sure the proceeds from forfeiture go into a general pot, like the state treasury or county fund, instead of directly into the coffers of law enforcement. This ensures that law enforcement makes decisions based on what is best for the community, not their budgets. And it’s not like the funding for pursuing forfeiture would suddenly dry up. Police and prosecutors would simply have to fund forfeiture enforcement in the same way they fund every other type of enforcement: through the normal, democratically-accountable budgeting process.

Take Action

Police and prosecutors defend forfeiture as an important tool in their battle against drugs and other societal blights, and neither of these reforms would stand in the way of that. If anything, requiring a conviction and ending the profit incentive make forfeiture more effective, by ensuring it’s used against the right people and for the right reasons.

In Harrisburg, a group of legislators are standing up for ordinary Pennsylvanians and plan to introduce legislation in the state House and Senate to enact both of these reforms. The ACLU of Pennsylvania strongly supports these efforts and calls on our members to contact their representatives to do the same. Advocacy groups interested in seeing our state’s forfeiture laws reformed can also join the Coalition for Forfeiture Reform. And maybe together we can end civil forfeiture once and for all.

Scott Kelly Scott Kelly joined the ACLU in February of 2014 and currently serves as a legal & policy fellow. Scott received his law degree from Columbia University School of Law and his undergraduate degree from Yale University. His current work focuses on civil liberties issues connected to property rights and the criminal justice system.

Ferguson Is Everywhere

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

Ferguson Protest, NYC 25th Nov 2014 (15693825550)

You already know an unarmed black teenager, Michael Brown, was gunned down by a white officer, Darren Wilson, after the officer stopped Brown for jaywalking. You know the Ferguson Police Department is mostly white, in a mostly non-white community.

You certainly know about the outcome of Officer Wilson’s grand jury hearing, after an unusual process in which the prosecutor didn’t ask the grand jury to indict Officer Darren Wilson—and it didn’t.

And you also know about Eric Garner. That NYPD arrested him for selling untaxed cigarettes (“loosies”). That the police wrestled the unarmed man to the ground, and placed him in a chokehold that had been outlawed by the NYPD. You know that Garner repeatedly gasped “I can’t breathe” as he struggled to take in air, and was pronounced dead an hour later.

You know the incident was captured on videotape, and the officer who killed him was still not indicted.

You know all that. But to understand why these events resonated so strongly in the public consciousness and sparked protests all across the country, we need to talk not only about Michael Brown, and Eric Garner—and Akai Gurley, and Tamir Rice, and many thousands of other unarmed men of color killed by police. We need to talk about why most of the people killed by police in recent years have been people of color.

Ferguson is everywhere because all across the country, communities of color are disproportionately the target of police scrutiny and violence. “I can’t breathe” became a rallying cry for people throughout the nation who live every day under the oppressive weight of police practices and a criminal justice system that cast men of color as threats.

Over the past few decades, police departments across the country have turned to “preventive” policing strategies. Broken windows theory, order-maintenance policing, zero tolerance—these strategies have many names, but share an emphasis on pouring law enforcement resources into poor communities of color (so-called “high-crime” neighborhoods) to aggressively stop, frisk, and arrest lots of people for minor, non-violent, “quality-of-life” infractions. This means arresting people for offenses like curfew violations, open containers, littering, graffiti, and sleeping or urinating in public.

Data-driven police management—where police are judged by their COMPSTAT statistics, and how many stops and arrests they perform—creates further incentives for aggressive policing of minor offenses.

The result is that, throughout the United States, people of color are several times more likely to be stopped by police, frisked by police, and arrested by police than white people. Not because they’re more likely to commit crimes, but because of policing strategies that pit the police against communities of color.

Because black and Latino men are disproportionately likely to have an encounter with the police, police come to stereotype people of color as criminals—unconsciously or consciously. This bias then reinforces the decision to concentrate police resources in communities of color.

This dynamic is particularly troubling when combined with the lack of sufficient legal restrictions on when the police are allowed to use force, and the increasing militarization of police departments around the country.

Police are empowered to use violence—tasers, chokeholds, and even guns—when they interact with the community on the street. And around the country, para-military SWAT teams raid people’s homes in the dead of night, often just to search for drugs. These SWAT teams are deployed disproportionately in black and Latino neighborhoods.

In a system that treats police like the military and people of color as the enemy, it’s no wonder that police encounters with people of color too often turn deadly.

Unfortunately, officers who kill people of color are rarely indicted, and virtually never convicted of excessive use of force.

It should be a basic, uncontroversial truth that “Black Lives Matter.” But every day, the American criminal justice system is at odds with that proposition.

On February 7, 2015, Staff Attorney Molly Tack-Hooper moderated a panel at the Pennsylvania Progressive Summit in Harrisburg called “Ferguson Is Everywhere.” This is adapted from her introductory remarks.

This post is part of a series in honor of Black History Month.

Part I: Why Civil Asset Forfeiture Is Broken

By Scott Kelly, Columbia Law School Social Justice Fellow, ACLU of Pennsylvania

Counties rake in over $13 million in profits from civil forfeiture on a yearly basis.

Counties rake in over $13 million in profits from civil forfeiture on a yearly basis.

Three years ago, Isaiah Thompson, a Philadelphia-area reporter, got a tip about police seizing money from a man without arresting him. Law enforcement took the cash, and that was it. No lawyers were called. No charges were filed. The money just disappeared.

The tip intrigued Thompson. And over the following weeks and months, the reporter pulled on that single thread – a guy and his vanished cash – to unravel the story behind a sprawling system of property seizures that had until then existed in the murky shadows of Pennsylvania’s justice system.

“Guilty” Property and Innocent Owners

Many innocent property owners give up, because disputing the forfeiture of their property costs more than the property is worth.

Many innocent property owners give up, because disputing the forfeiture of their property costs more than the property is worth.

That system – called “civil asset forfeiture” – lets police take property they claim is tied to a crime. But as Thompson’s reporting would painstakingly document, the perverse thing about civil forfeiture is that the law doesn’t actually require police to convict or even charge anyone with an alleged crime.

This is because, in the strange world of civil forfeiture, the property itself is considered “guilty” – a legal concept that dates to medieval times and long since should have gone the way of feudalism. But it’s on the basis of this absurd, antiquated fiction that prosecutors are allowed to file forfeiture petitions against property in civil court, instead of against humans in criminal court. In this way, prosecutors avoid the constitutional protections that apply to criminal defendants, including appointed counsel and stronger burdens of proof.

With the deck stacked against property owners like this, it’s no wonder that so many of them don’t contest the loss of their seized cash, cars, and homes. In one article, Thompson indicated that roughly 80 percent of all civil forfeitures in Philadelphia were “by default” – meaning the property owner didn’t dispute the forfeiture and the prosecutors never had to offer any proof to a judge. The relatively scant reporting from other counties suggests similar or worse patterns in other parts of the state. A review by LancasterOnline of all the cases filed in Lancaster County since 2013 revealed that the number of times a property owner filed an answer to a forfeiture petition could be counted on one hand.

Of course, some default forfeitures are criminals throwing up their hands and saying “you got me.” But in many cases, it’s the deep-rooted unfairness of civil forfeiture itself that’s at play. Anecdotal evidence indicates that many owners aren’t even notified by prosecutors that their property is being forfeited. Others decide to walk away from their property, because they simply don’t have the time to show up for the multiple court dates required to get it back.

Perhaps the most disturbing explanation for these defaults is that the value of the property at stake is often pretty small – say, $200 – and the costs of hiring an attorney and taking time off work much higher. Faced with this grim math, a completely innocent person will not “contest” the forfeiture, because the system won’t allow it. Forfeiture in those cases is nothing less than state-sanctioned theft, with law enforcement taking money directly from the wallets of regular Pennsylvanians and putting it in their own pockets.

Bulging Pockets

The above is an excerpt from an agreement between the Philadelphia District Attorney and police, divvying up the profits from civil forfeiture.

The above is an excerpt from an agreement between the Philadelphia District Attorney and police, divvying up the profits from civil forfeiture.

And take money from people’s pockets, civil forfeiture does. Annual reports released by the Pennsylvania Attorney General show that civil forfeiture generates a staggering $13 million in profits each year across the state, with some counties taking in upwards of $1 million annually.

All of this money is then split between the prosecutors and police and deposited directly into their budgets. To many critics, this is the rotten cherry on top of the whole melted sundae of unfairness that is civil forfeiture: the very agencies entrusted with enforcing forfeiture have a direct financial motive to go after as much property as possible.

The incentive is so perverse that even the umpires are starting to complain, with the President Judge of the Pennsylvania Commonwealth Court going so far as to remark that the DA’s conflict of interest “severely undermines” confidence in our state’s justice system.

To put the power of this conflict into perspective, take the example of Philadelphia District Attorney Seth Williams and his civil forfeiture machine. Philadelphia law enforcement rakes in approximately $5 million every year from forfeiture, and the DA’s share of those profits account for nearly 10 percent of his budget.

Philadelphia law enforcement may be the worst offenders, but other counties aren’t far behind. Law enforcement from Montgomery, Allegheny, Dauphin, Delaware, Lancaster, and Bucks counties all seize upwards of $500,000 in private property on a yearly basis.

Profits like this fuel a vicious cycle of injustice. As civil forfeiture swells budgets, law enforcement pours ever more resources into pursuing civil forfeiture, boosting profits even higher. It’s gotten so bad that the district attorney in one Pennsylvania county has taken to awarding “forfeiture bonuses” to his staff.

There may have been good intentions when our state’s civil forfeiture laws were passed 30 years ago, but those days are long gone. Civil forfeiture today has become like a bad magic trick where property vanishes from the hands of innocent owners never to be seen again.

Check back next week for Part II of our series where we’ll talk about the basic reforms that could fix our state’s broken forfeiture laws…

Scott Kelly Scott Kelly joined the ACLU in February of 2014. He is a recent honors graduate of Columbia Law School, where he received the Milton B. Conford Book Prize for the best essay on jurisprudence.

Volunteer Spotlight: Valerie Snow

Val Snow-Blog-Feature

Profession:
Paralegal – at least for now.

What do you do as a volunteer for the ACLU of Pennsylvania?
I volunteer doing intake for the Legal Department. For an average of six hours per week, during the office’s evening and weekend hours, I chip away at the phone message database and make calls to people who believe their civil rights have been violated. I follow a general script and take notes on the call, and then I summarize each complaint and suggest a course of action. Usually, this means selecting a handful of referrals to other organizations. After sending the complaint to a volunteer attorney for review and feedback, I finalize our response and send it off.

I occasionally interact with Spanish speakers who leave messages for us, and since there are currently a very small number of volunteers who speak Spanish, staff attorney Molly Tack-Hooper asked if I would be interested in a trip to a detention facility to help with some language interpreting. I immediately agreed, and after much arranging, we traveled to Berks County Residential Center in Leesport, PA for a day.

This Immigration and Customs Enforcement family detention center, which holds mostly women and children, is one of only three in the country. Our goal was to see if anyone at the detention facility qualified to join a class action lawsuit the ACLU filed against the Obama administration. The suit contests the administration’s practice of detaining and denying bond to asylum-seeking mothers and children from Central America who have passed a “credible fear” interview and are likely to receive asylum status. This new policy, aimed at deterring immigration from Central America, contradicts the Department of Homeland Security’s precedent of releasing families on bond as they await their asylum hearings and contravenes U.S. immigration law and Fifth Amendment rights. Touring the detention facility and speaking to more than a dozen individuals in Spanish about their difficult situations, while reminding them that we could not help with their specific asylum cases, made for an interesting and educational trip that was not without its challenges.

How long have you volunteered with the ACLU of Pennsylvania?
I began volunteering in early August, 2014.

How did you first get involved with the ACLU of Pennsylvania?
After graduating from Haverford College in May 2014, with a degree in Political Science, I started my paralegal job right away and began to consider how I might meet new people and supplement my work with something I feel passionate about – especially if it might help me clarify my career and higher education goals. After asking some friends and acquaintances in the Philadelphia area for ideas, a volunteer reviewing attorney for the ACLU of PA told me about the possibility of becoming an intake volunteer. I thought it sounded like a great fit for me, so I applied.

Why is volunteering with the ACLU of Pennsylvania important to you?
The ACLU of PA is the type of organization I could see myself working for in the future, as it addresses many socially important issues – grounded by the theme of protecting Constitutional/ civil rights – and uses a combination of strategies to effect change. In the short term, though, it’s a constructive volunteer opportunity and learning experience that allows me to help a cause (and specific individuals) in some small way. Plus, I’ve met some great people whose values overlap with my own.

What civil liberties issue(s) are you most passionate about and why?
I tend to gravitate toward discrimination issues and those that track closely to the rights of people and groups (rather than, for example, surveillance and digital privacy – important as those issues are). My primary concern is to help people and be part of something that encourages a more equal society – one that values diversity and tries to recognize and correct injustice.

What do you do when you’re not volunteering for the ACLU of Pennsylvania?
Apart from my full-time job, I enjoy seeing friends, running and biking, reading, playing piano, crocheting, and hanging out with my cat.

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If you are interested in volunteering with the ACLU of Pennsylvania, please visit: aclupa.org/volunteer

‘Unexpectedly Wonderful’

By Amanda Hayes

Amanda Hayes

Amanda Hayes, 2014 Frankel-Adair Scholarship winner

There is the expected, and there is the unexpected. Buying expensive textbooks when I went back to school to pursue my teaching certification – expected. My wife’s post-surgical complications and subsequent disability – unexpected.

Of course I was thrilled to receive the inaugural Frankel-Adair Scholarship last year. Some of the award’s effects were expected: my parents kvelled (kvell, v.: to go on and on about how wonderful someone is, usually one’s child). I placed excited phone calls to thank my recommenders. I ceased advertising myself as a tutor, and while I continued to work with just a couple of students, this allowed me to focus on my studies and be helpful to my wife. I added the honor to my resume.

But it is the unexpected benefits of this scholarship which have had the greatest impact on me.

When I visited the ACLU offices in Philadelphia, I was given a tour and introduced to most of the staff. I can’t help but smile remembering how excited a few of them were to meet me. Little old me!

I was invited to attend the ACLU-PA’s Bill of Rights Dinner. I was a scholarship recipient rubbing elbows with big donors, feeling a little out of my league. But the folks I’d met on my office visit – two months previous – were thrilled to see me. I was greeted with hugs – hugs! – like an old friend. At some point, my name was announced, I saw my picture appear on the projection screen, and I stood to blush at a round of applause.

The night’s honorees blew me away. I saw awards presented to the law firms that had protected voter rights (Arnold & Porter, LLP) and secured PA marriage equality (Hangley Aronchick Segal Pudlin & Schiller). I admired the courage of the student editorial board of Neshaminy High School, who faced school sanctions for refusing to print the word “Redskins,” and of the clients in the Whitewood v. Wolf case, which made my marriage (among others) legal in the Keystone State. I heard Ben Wizner’s brilliant address about technology and privacy. (I also ate some delicious food.)

In attendance at the 2014 Bill of Rights Dinner.

In attendance at the 2014 Bill of Rights Dinner.

The event took place on a school night, and though I had fieldwork to do the following morning, I stayed until the very end, soaking up every bit of the experience. As I wove through empty tables and chairs, I was stopped by a woman who congratulated me. Unbelievably, it was Deb Whitewood – yes, that Deb Whitewood, as in Whitewood v. Wolf. Talk about the unexpected! She called over her daughter Abbey and we chatted, and the whole time I was too star-struck to thank or congratulate The Deb Whitewood. (Deb and Susan Whitewood, if you’re reading this, thank you!!!)

When the ACLU-PA honored me with the Frankel-Adair Scholarship, suddenly I became not only a member of the ACLU family, but someone that others within this amazing group would be excited to meet. My immense pride to be associated with the ACLU – expected. The ACLU’s apparent pride to be associated with me – unexpectedly wonderful.

Apply for the 2015 Frankel-Adair Scholarship

Applications for the Frankel-Adair Scholarship for the 2015-16 school year will be accepted from February 1, 2015, until April 30, 2015. All application materials must be received by 5:00 p.m. on April 30, 2015. Late or incomplete applications will not be considered.

I Was Arrested for Learning a Foreign Language. Today, I Have Some Closure.

By Nick George

Nick George

Nick George

Five years ago, the Philadelphia police thought that carrying Arabic-language flashcards was enough to warrant the arrest of an innocent traveler. A settlement reached today in a lawsuit I brought against the police department makes it clear that it is not.

Travelling by plane can be a long and grueling process under the best of circumstances. This makes it a good time for monotonous tasks, like trying to iron out some vocab for a language you’re learning at college.

In August 2009, I was planning to fly through the Philadelphia airport to start my senior year at Pomona College in California. I was carrying a set of English-Arabic flashcards that I had put together for one of my classes, as well as a book critical of U.S. foreign policy (written by a former secretary of commerce under President Reagan– not exactly a radical treatise). It should go without saying that this is perfectly innocuous, First Amendment-protected activity.

Turns out, it doesn’t.

At the metal detector at airport security, Transportation Security Administration agents asked me to empty my pockets. I took the set of flashcards from my pocket and handed them to the officers. After I cleared the metal detector, they asked me to step aside for additional screening. One of them started rifling through the cards, and another took the book out of my carry-on. The minutes ticked by, and I got more confused about why I was being detained and more concerned that I would miss my flight. One of them called a supervisor.

After a half-hour delay at the security line, the supervisor showed up, and things turned from annoying to surreal. After looking at the book and flashcards, the supervisor asked me: “Do you know who did 9/11?” Taken totally aback, I answered: “Osama Bin Laden.” Then she asked me if I knew what language Osama Bin Laden spoke. “Arabic,” I replied. “So do you see why these cards are suspicious?” she finished.

Imagine going from being in line at the airport to having a TSA supervisor imply you had some connection with the worst act of terrorism ever committed against your country – all over the course of a few minutes.

She was in mid-sentence talking to me when a Philadelphia police officer appeared behind me and ordered me to put my hands behind my back. He cuffed my hands, grabbed my arms, and, in full view of the rest of the passengers, walked me through the entire Philadelphia airport and into the police substation.

No one informed me of my rights, and no one would tell me why I was being not just searched but arrested by police, when I was in violation of no law. I had never been arrested, and no one knew I was there.

The police officer left me in a cell at the police station for several more hours. He did not uncuff my hands from behind my back. He did not tell me what I was being held for. He did not tell me how long I would be there. After about two hours I asked to go to the bathroom, and on the way back I again asked why I was being held. He answered me with the same attitude the TSA agent had shown me: “I dunno, what’d you do?”

It’s that attitude that is so problematic. Even after searching my luggage without probable cause of a crime and finding nothing out of the ordinary, TSA agents and the police felt they had the authority to detain and then arrest me, purely on ignorant assumptions about a language spoken by 295 million people worldwide.

That’s why this lawsuit is important: to make it clear that arbitrary arrests are illegal, even at the airport. In addition to some modest damages, the settlement we signed requires the Philadelphia Police Department to amend its policies to make this clear. As law enforcement officers, they will be periodically instructed that they have an independent duty to establish probable cause before arrest, and cannot simply clap in cuffs anyone the TSA calls suspicious.

Again, this seems like it should go without saying. Maybe now it will. I’m very grateful to the ACLU for helping me get here. And I hope the Philadelphia police have gotten the message.

This article is cross-posted at the ACLU’s Blog of Rights