The City of Brotherly Love is not so brotherly when it comes to civil forfeiture. Consider this case, which began in September of 1993. The police stopped Ossie Younge for a traffic infraction, speeding. Nothing unusual about that, but what was unusual (although not in Philadelphia) is that the police then seized $22,080 from his vehicle. The prosecutor never filed a petition to forfeit the money. At that proceeding, the prosecutor would have had to prove, by a preponderance of the evidence, that the money was contraband. Instead, the police just seized it, which forced Mr. Younge to file suit seeking its return. The trial court rejected Mr. Younge’s petition. Its opinion repeatedly referred to Mr. Younge as the “defendant,” although he was the plaintiff in a civil case. Mr. Younge offered his testimony, his fiancée’s testimony, and various documents to show that he had lawful possession of the money.
He appealed. Pennsylvania, the appellate court observed, “offered no relevant evidence to the issue of who might have a superior claim to the seized cash, if not appellant.” It concluded that the lower court’s seizure of Mr. Younge’s money is “state-sanctioned theft.” Mr. Younge eventually won, but the gears of justice move slowly. It was not until November of 1995 (more than two years after the police seized the money) that the court ordered it returned.
Philadelphia has not really changed its ways since the Younge case. In August 2001, police pursued suspected drug dealers through the unlocked door of a 77-year old homeowner, Margaret Davis. Davis typically left her door unlocked so her kind neighbors could check up on her. She suffered from end-stage renal disease and used para-transit to travel to dialysis treatment three times a week. Because the suspects ran out the back door of Ms. Davis’ home, the police asked her for permission to search her home, where they found drugs in plain view, presumably left by the fleeing suspects.
The next month, the Philadelphia District Attorney filed a motion to seize her home, although no one accused her of being part of any drug ring. She could not afford a lawyer, so a legal clinic at the University of Pennsylvania Law School took her case in February 2002. The case was working its way through the courts while—as luck would have it—the police chased another suspect into her house and caught him trying to hide drugs there. The District Attorney’s office finally withdrew its seizure petition in November 2003.
She was, eventually, lucky. Many others, not so much.
The state institutes criminal forfeiture against a person it has convicted him of an underlying criminal offense. The purpose is to take the profit out of crime. The government must prove to the court that the defendant secured his property illegally, e.g., he stole the Bentley. On the federal level, 18 U.S.C. § 982, provides for criminal forfeiture. It provides, in part, that “The court, in imposing sentence on a person convicted of an offense in violation of [various federal laws], shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property.”
In contrast, in civil forfeiture, the government institutes the forfeiture proceedings against the inanimate object, e.g., Ms. Davis’ house. On the federal level, 18 U.S.C. § 981, governs civil forfeiture. It provides, in part, that “Any property, real or personal, involved in a transaction or attempted transaction in violation of [various federal laws], or any property traceable to such property” is subject to forfeiture.
As the Department of Justice explains, civil forfeiture deprives “drug traffickers, racketeers, and other criminal syndicates of their ill-gotten proceeds and instrumentalities of their trade.” That makes sense in theory, but it does not apply to people like Ms. Davis. The government seized the fruits or instrumentalities of a crime (Ms. Davis’ house, where drug dealers hid their drugs), even though Ms. Davis did not give the drug dealers permission to use her house. She had no knowledge of what was happening, which is why she cooperated so fully with the police.
In civil cases, the Government does not have to prove its case beyond a reasonable doubt to a jury. In Pennsylvania, the Government’s burden is even easier: the owners of the property, not the government, have the burden of proving that they are innocent owners. Still, Philadelphia stands out as unique, even in Pennsylvania. In 2011, Philadelphia prosecutors filed over 6,500 petitions to seize cash or property. In contrast, compare Pennsylvania’s next largest county—Allegheny County, the home of Pittsburgh. It filed only about 200 civil-forfeiture petitions from 2008 to 2012 combined. Los Angeles County has a population six and one-half times the size of Philadelphia’s population, yet Philadelphia collected over 500% more than Los Angeles County in 2010. From 2002 to 2012, Philadelphia seized over $44 million just in cash. The median amount of that cash was only $178. In many of these cases, the Philadelphia District Attorney sued to seize amounts less than $100. We are not talking about drug kingpins. These are the working class poor.
All these trifling seizures add up. Each is small enough that it is not cost effective for the victim to sue to get a refund. That is why the Philadelphia D.A. wins about 80% of the cases by default. From 2002 to 2012, the D.A. took in over $64 million in forfeited cash, vehicles, real estate and other property. The forfeitures also pay for “nicer offices, newer vehicles, trips to law enforcement conventions and even police salaries, bonuses or overtime pay.” The D.A. spends none of the funds for community-based drug and crime-fighting programs.
The D.A. has a financial interest in forfeiture. It is almost as if the D.A. works under a contingent fee arrangement. For years, the DA’s Office has had a written sharing agreement with the Philadelphia Police Department that governs splitting forfeiture proceeds between the two agencies. Under the terms of this agreement, the first $927,500 forfeited each fiscal year was apportioned as follows: $727,500 to the Philadelphia D.A.’s Office to cover “forfeiture related administrative expenses,” including salaries; and $200,000 to the Philadelphia Police Department. After distributing the initial $927,500, the agreement calls on the balance of the forfeiture revenue to be divided, with 40 percent going to the Philadelphia D.A.’s Office and 60 percent going to the Philadelphia Police Department.
The D.A. may not think that it is involved in a contingency fee arrangement, but others see it that way. In 2009, Mayor Michael Nutter proposed cuts to the DA’s budget and suggested that the office use its forfeiture funds to help make up the difference. There is a federal ban on forfeited money to pay salaries or support police budgets, but Mayor Nutter may not have received that memo.
If one does contest the forfeiture in Philadelphia, the proceeding is Kafkaesque. You go to Courtroom 478, and you make your case to several assistant district attorneys (not a judge) who appear to run everything. The “judge” is a trial commissioner. The commissioners have no adjudicative powers but merely assist with scheduling, and do not interact with the people who want their property returned. Claimants typically have to return to this “court” repeatedly (on average, five times) before the case is decided. If they miss one appearance, they suffer a default judgment.
Soon, we may see an end to what goes on in Courtroom 478. The Institute for Justice, a not-for-profit civil liberties law firm, has now filed a class action on behalf of Philadelphians to stop these forfeitures. Its named clients include Christos “Chris” Sourovelis. He and his family live in a middle-class neighborhood in Northeast Philadelphia. On May 8, 2014, the police seized the family home because the police caught the son of Mr. Sourovelis selling $40 worth of drugs outside of the house. The D.A. never charged Mr. Sourovelis or his wife with any crime, but they had to leave their house for a week. The city allowed them to return, but only if they kicked out their son and agreed to waive their legal rights in any future forfeiture proceedings. Now, they fear that they may lose their family home forever. Mrs. Sourovelis said, “To me I’m home, but I feel violated at this point.”
Defenders of the civil forfeiture program claim that it takes the profit out of crime. Chapman University Professor of Economics and Law, Bart J. Wilson, and co-author Michael Preciado, a lawyer who graduated from Chapman University, tested that claim using an elegant computer experiment. (Professor Wilson works with Professor Vernon Smith, also at Chapman, who won the Nobel Prize in Economics in 2002, for his path-breaking work in experimental economics.) The Wilson-Preciado experiment showed that civil forfeiture laws encourage law enforcement to seize property instead of fighting other crimes, leading to systematic abuse. “Without civil forfeiture, experiment participants were inclined to help each other, even when there was nothing to gain. But under civil forfeiture, when participants could gain financially by taking property from others, that is overwhelmingly what they did.”
Should the law encourage police and prosecutors to focus on civil forfeiture to raise funds from people that they never charge or convict of a crime, in order to increase their budgets? One would think that the answer to that question should not be difficult. In Philadelphia, it is. Soon, the courts will decide whether it is unconstitutional.
In my opinion any time you hinder due process you have lasting effects that are bad for everyone. I had a friend that committed crimes and had 2 strikes against him. When he got out it seemed that he would be out for good. Held work, became a tax payer with a licensed business. Trouble is with 2 strikes against him as with many if something happens, whether his fault or not, if it could lead to a 3rd strike he would do anything to get away. If in a vehicle he might run over someone because his actions under the 3rd strike is already 25 to life. No chance for recovery. The idea was to make it easy to get dangerous offenders off the streets by circumventing or curtailing the power of the jury. Is there a cost, always when you take short cuts, will we ever learn. The ends does not justify the means. Our politicians are most likely the greatest users of this and look where we are today.
Civil asset forfeiture as applied to in these cases violates the 14th amendment to the U.S. Constitution which states in Section 1, “…; nor shall any State deprive any person of life, liberty, or property without due process of law;”. This clause is applicable to civil as well as criminal charges unlike the 5th Amendment which specifies criminal charges only. Federal statutes enacted by the U.S. Congress or State statutes enacted by their respective legislatures cannot supersede the U.S. Constitution.
Citizens of the State of Pennsylvania have the right to face their accuser in a court of law, hear the charges presented and show evidence in their defense. When a State seizes a defendant’s property before a court trial and a decision rendered against said defendant then it defies constitutional law and such an act must be struck down.
It is seriously past time to get rid of civil forfeiture. It has been used and abused by the police organizations to fund their departments with no due process for those who have their goods and money seized under that unconstitutional law.
Personally I am on the side of just legalize the drug trade. Legalize, regulate, tax almost all of the drug trade, save for those drugs that can be used to make someone into a target for rape like ketamine.