An article headlined “Cash Grab” on Page A1 of last weekend’s Sunday LNP detailed criticisms and alleged abuses in Pennsylvania of the legal procedure known as civil asset forfeiture. WHYY’s Bobby Allyn and Ryan Briggs, reporting for Keystone Crossroads, note that the practice used to be most common in big cities like Philadelphia, but there has been “a radical shift” in the past half-decade. They write: “Records show Philadelphia collected less money from police confiscation in 2017 than any recent year on record. Meanwhile, its suburbs and outlying counties like Berks and Lancaster have ramped up cash seizures, according to an analysis of five years of data from the Pennsylvania Attorney General’s Office.”
We are, of course, quite familiar with the issue of civil asset forfeiture here in Lancaster County, given how it has been at the center of months of headlines involving a court battle between LNP Media Group and District Attorney Craig Stedman. LNP’s Carter Walker filed a Right-to-Know request last September for detailed records of how seized items were processed once they were confiscated and, if sold, how the money was allocated or spent.
While Stedman has provided LNP Media Group with 18 years of summary reports related to drug forfeiture assets, the state Office of Open Records has ruled that his office must comply with Walker’s full Right-to-Know request. Stedman’s office has appealed that ruling to the Court of Common Pleas.
Beyond that, the recent reporting by Allyn and Briggs sheds additional light on the evolution of civil asset forfeiture and the serious concerns associated with the practice.
They summarized the practice this way: “Civil asset forfeiture ... allows authorities to take money, cars and other assets of those suspected of selling drugs — even before a person is charged or found guilty. Proceeds are liquidated and used at the whim of law enforcement outside of county budget oversight.”
There are two key points there.
“Before a person is charged or found guilty.” We don’t believe that’s just.
“Outside of county budget oversight.” We don’t believe that’s proper or what’s best for the public.
With forfeitures, it’s too easy for innocent people to become victims of the process. Allyn and Briggs highlight one such case. In Berks County, a 2016 narcotics bust included the seizure of an SUV that was being used in a drug deal but was registered to a woman who was enrolled in college and had nothing to do with the drug operation. She was never charged with a crime — and was still without her vehicle as of early 2019.
(Additional examples of people who were not involved in drug-dealing but nevertheless lost assets to forfeiture are detailed in the expanded version of the article, which can be found on WHYY.org and in Tuesday’s edition of The Caucus, an LNP Media Group watchdog publication.)
Seizing the cash and property of people who may never be charged or convicted is unjust. Allyn and Briggs note that “nine states require a criminal conviction before an asset is seized. Pennsylvania is not one of them. That reform was proposed here, but it failed after lobbying from district attorneys.”
We understand that in some cases, suspicious money and assets may need to be collected as evidence, but it should be kept separate — not spent or sold — and returned to the rightful owner if not involved in the crime.
An individual who is not involved in a crime should not be at risk of permanently losing assets to law enforcement. The impact of losing money and/or a vehicle can be a devastating situation from which it is difficult to recover.
Many agree. Berks County defense lawyer Joel Ready told Allyn and Briggs: “Anybody who had $500 taken out of their pocket by the government and (is) told, ‘Well, you’re going to have to prove that you didn’t do anything to get this back,’ is going to understand that this is a profound injustice. Most people can’t afford to hire a lawyer to come in and get that money back.”
Most notably, Supreme Court Justice Clarence Thomas has been repeatedly critical of the practice. “These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings,” he is quoted as saying in a 2017 article in The Atlantic. “Whether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.”
In February, the Supreme Court, citing the U.S. Constitution’s excessive-fines clause, agreed that law enforcement officers in Indiana could not seize the $42,000 Land Rover of a man who pleaded guilty to dealing in a controlled substance and conspiracy to commit theft — crimes for which the maximum fine was $10,000.
The Washington Post editorial board noted that “the ruling is narrow ... (and) does not mean state and federal authorities may no longer seek to seize property they suspect of being connected to a crime.” Still, it represents a small step toward the necessary curbing of the practice.
We understand why some district attorneys embrace and even rely upon civil asset forfeiture.
The method of properly funding their departments — especially in the crucial battle against the flow of illegal drugs — is broken.
By not providing them with sufficient budgets, we allowed forfeiture to look like a good solution.
“Counties pressed for funds are going to increase civil forfeiture,” University of Pennsylvania professor Louis Rulli told Allyn and Briggs. “DAs know that this is a very profitable funding stream.”
“We’re looking for assets more so than we ever did before,” added Berks County District Attorney John T. Adams. “This is bad guys’ money that we’re taking to enable us to arrest more bad guys.”
But not everyone is a “bad guy.”
Sometimes the person whose assets are seized — a parent or spouse, for instance — are punished just for their proximity to a bad guy.
There is also the problem, at times, of agencies becoming “addicted” to forfeiture.
Rulli notes that Philadelphia, which has reduced the use of forfeiture, learned a lesson over the decades. In the words of Allyn and Briggs, that lesson was this: “When forfeiture is used as a cash cow, everything can look like drug money. Everything can look like a prize.”
The root of the problem is funding law enforcement with forfeiture assets. It provides a direct incentive to seize assets. And that can potentially lead to abuse, overreach and innocent people being victimized.
“District attorneys ... have come under fire for allegations of improper use,” Allyn and Briggs note. They cite Stedman using more than $21,000 in civil forfeiture funds to lease and maintain an SUV for his use and “a cottage business of auctioning cars” by the York County DA.
Some argue that civil asset forfeiture helps us fight crime while saving taxpayers money.
But at what true cost?
We believe the public’s greater interest would be best served by a system that is transparent, has full oversight and is adequately funded by taxpayers.
Civil asset forfeiture is not the just approach.