To Think that SB 8 Becoming Law will Effectively Reform Civil Asset Forfeiture is Naive

By Midge Carter, ACLU-PA Criminal Justice Intern

Elizabeth Young’s Philadelphia home was taken from her because her son was charged with selling marijuana from it. Photo from Philly.com.

Elizabeth Young is a 72-year-old grandmother and lifelong Philadelphia resident. Young has never been charged or convicted of a crime. And yet, in 2010 Young had her home and vehicle seized by Philadelphia police through civil asset forfeiture, a mechanism allowing law enforcement to seize property they think has been involved in a crime, whether or not its owner has been charged or convicted of a crime. Because civil forfeiture takes place outside criminal statutes, those who have their property taken are not afforded legal counsel. The practiceis also financially lucrative for police departments and district attorneys, and it disproportionately affects the poor and people of color.

Under the Trump administration, it may expand.

In a speech Monday to the National District Attorneys Association, Attorney General Jeff Sessions expressed intent to “develop policies to increase forfeitures.” According to a senior justice official, Sessions intends to achieve this in part by rolling back Holder-era policies put in place following complaints of law enforcement abuse. To Deputy Attorney General Rod Rosenstein, civil asset forfeiture is about bringing in the revenue of crime, not about bringing the crime to court, saying on Wednesdaythat “sometimes there will be criminal prosecutions, sometimes there won’t.” And the current president doesn’t seem to understand the concept of asset forfeiture reform in the least. In February he described forfeiture reform as situations where “[criminals] have a huge stash of drugs. So in the old days, you take it. Now we’re criticized if we take it.”

In the absence of federal guidance, some states are taking initiative and reforming civil forfeiture themselves. Twenty-four states have reformed forfeiture laws, but effective reform is slow and halting. The Institute for Justice notes that a “common refrain in the states where reform efforts have been unsuccessful is that resistance from law enforcement leaders killed the bills.”

For proof of that, look at the Keystone State. Three weeks ago, Governor Wolf signed SB 8, a bill reforming legislation relating to civil asset forfeiture. ACLU-PA has previously written about SB 8, but now that it’s law, let’s recap.

SB 8 started out as a strong bill that would prohibit forfeiture without a criminal conviction. It was backed heavily by advocacy groups. And then law enforcement lobbyists got involved, and the bill was weakened. Wolf signed that version of the bill.

The new reform law doesn’t do much to protect citizens, and what reforms it provides are modest. Although sponsors touted the amendments as raising the commonwealth’s burden of proof, the amended bill places the initial burden of proof on property owners, most of whom are unrepresented, rather than the government. The amended bill also makes it easier for the government to take property by default without the government ever having to present evidence to justify the forfeiture.

It does require a hearing for cases involving real property. But it misses the mark on actual protections. All of the proceeds from forfeiture still go indirectly to law enforcement; they are supposed to be used for fighting drug crime, but often are used for general operating expenses like salaries. In Philly that includes the salaries of several assistant district attorneys who do nothing but forfeiture.

Property owners can still have their property taken away without being convicted of a crime. And counsel still isn’t guaranteed. These are issues that need to be addressed if civil forfeiture reform is going to have any tangible impact.

And people like Elizabeth Young need reform to have a real impact. Young lost her house and minivan after her son, who lived at her home, was arrested for possession and intent to distribute marijuana. He was convicted when law enforcement agents found the drugs after searching Young’s home and car. Law enforcement agents then seized Young’s property, claiming it was connected with the crime.

In order to receive relief, Young had to take her case up to the Pennsylvania Supreme Court. In May, nearly eight years after her house was seized, they ruled in her favor,deciding that authorities must prove that “owner had actual knowledge of the illegal use of the property or consented to the underlying criminal activity” in order to seize assets.

Young’s Pa. Supreme Court ruling is a victory. To think that SB 8 becoming law will effectively reform civil asset forfeiture is naive.

If you’re interested in learning more about civil asset forfeiture, check out ACLU-PA’s three reports on the topic here, read Isaiah Thompson’s ground-breaking reporting from Philadelphia City Paper on the topic, and the Institute for Justice’s Policing for Profit report (which talks a lot about Philly). Sarah Stillman’s excellent piece in The New Yorker is also worth a read, and this bit from John Oliver is worth watching if you want to giggle while you learn and scream at the television.

IN OTHER NEWS
(Criminal justice news deserving of an in-depth look.)

Pennsylvania has more juvenile lifers than anywhere in the country, and it’s not clear that the nationwide fight to eliminate juvenile life without parole sentences is over. Photo from The Atlantic.

 

  • The Atlantic: “The Reckoning Over Young Prisoners Serving Life Without Parole”

“Life sentences are an American institution. According to a recent Sentencing Project report, more than 200,000 people are serving either life in prison or a ‘virtual’ life sentence: They haven’t been explicitly sentenced to spend their natural lives behind bars, but their prison terms extend beyond a typical human lifespan. Of these prisoners, thousands were sentenced as juveniles. More than 2,300 are serving life without parole, often abbreviated LWOP, and another 7,300 have virtual life sentences. Only after they serve decades in prison do members of the latter group typically become eligible for parole.”

  • Fox43: “PA Supreme Court: Police must obtain search warrant to draw blood from unconscious DUI suspects”

 “The Pennsylvania Supreme Court ruled today that law enforcement must obtain a search warrant before drawing blood from unconscious suspects they believe to have been driving under the influence (DUI). Justice David Wecht’s opinion recognizes that motorists are ‘deemed to have given consent’ when on the road in Pennsylvania under the ‘implied consent’ statute but notes that the driver, under the same law, has a right to refuse and if he/she can’t, the test may not be conducted. The decision stems from an incident that took place in 2012.”

  • The Marshall Project: “Pennsylvania went too far with new sex offender registration laws, says state’s supreme court.”

“In 2012 state lawmakers amended the “Megan’s Law” there to require lifetime registration requirements. Several men who long ago were convicted of sexual offenses, and who had fulfilled the 10-year registration requirement in place at the time, sued, arguing the new law violated their constitutional rights. On Wednesday, they won their case. Allentown Morning Call Related: Read the decision. Supreme Court of Pennsylvania More: Background on the case. Allentown Morning Call

“The consequences of rescinding DACA would be severe, not just for the hundreds of thousands of young people who rely on the program — and for their employers, schools, universities, and families — but for the country’s economy as a whole. For example, in addition to lost tax revenue, American businesses would face billions in turnover costs, as employers would lose qualified workers whom they have trained and in whom they have invested. And as the chief law officers of our respective states, we strongly believe that DACA has made our communities safer, enabling these young people to report crimes to police without fear of deportation.”

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One thought on “To Think that SB 8 Becoming Law will Effectively Reform Civil Asset Forfeiture is Naive

  1. Generally I am a skeptical of the ACLU . However, the events that of the last week has shed a new light on your work. Tearing down monuments in order to dispell painful history is bizzare and both sides equally repressive. While living in WV in the sixties many times over people were ushered to asylum s after labor activities, giving birth to handicapped children and even affronting prostitution rings. My guess is your grand ma in Philly did the latter or backed down a cop again possibly retaliation on earlier complaint. Should be some fed casework on overseizing like DEA. Bankruptcy court located someone did that to my late parents reopened and Washington County judge moved proceedings to imposter. My handicapped brother who lived in home rendered to county home even with abuse not allowing transfer till union reinstated. Even my mail, student loans, civil rights worker documents were taken and much never returned. Judge in bankruptcy court later found to conspired with former employee to down business as part of looting from bench and an extension of his religious hatred of holiday venders. One county prospective employee at the time ( now a commissioner) said that is the kind of fair my friend wants to run st the fairground. It was after the house was seized and family tried to locate other housing we learned how many people in law enforcement got loans, references, jobs from plundering the business and house. One lady taunted during the bankruptcy hey sweety I will have your house, kids, degrees, jobs whatever the fuck I want. Face it the Kkk ain’t nothing compared to Washington County government officials , bank workers, and some of the FBI . Keep going in addition if someone is critically injured someone at the hospital has been known to call the court house and ” get things rolling” down to the antiques. Both commissioner Maggi. Irey , former Judge O Dell used tactics like that to locate property in Phildrlphia in west end near the university. Think the got help from real estate consortium and investment group. Like I said keep going it could be worse at least they didn’t commi her or tie her to a bed like they did to women in the seventies in East Liberty and North side in Pittsburgh.

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