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.

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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.

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.