Part II: How to Reform Forfeiture

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

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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

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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.

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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.