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.

One thought on “Part I: Why Civil Asset Forfeiture Is Broken

  1. Pingback: Part II: How to Reform Forfeiture | Speaking Freely

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