As the decades-long futile and expensive drug war grinds on, one of the major tools in the drug warriors’ arsenal, civil asset forfeiture, has become increasingly unpopular, and the Courts are beginning to push back. Civil forfeiture is the process by which the various states or the US government seize property which is suspected to be involved in criminal activity, without charges ever being filed. The most recent decision tightening the leash against state abuses of civil forfeiture authority comes to us from The Supreme Court of Pennsylvania, in two cases, both against the property of Ms. Elizabeth Young.
Ms. Young is a 71-year-old grandmother from Philadelphia who was living in a home which she purchased in the seventies. In 2009, she had some family, including her son, move in after she experienced a hospitalization. Later, over several different dates, her son was arrested for several small sales of marijuana, police executed a search warrant on Ms. Young’s home and vehicle, and recovered small amounts of marijuana totaling less than an ounce and a couple of hundred dollars cash from Ms. Young’s home and car. Ms. Young’s son eventually pled guilty to possession of marijuana, possession with intent to deliver, and received a sentence of eleven to twenty-three months house arrest. Police never charged Ms. Young with any crime.
In 2010 the state filed a petition for forfeiture of Ms. Young’s house and vehicle. The trial court allowed the seizure. The court reasoned that because police had made Ms. Young aware of her son’s activities before his arrest, and because she had done nothing to stop him, that she consented to his activity, so she could not avail herself of an “innocent owner” defense. They further ruled that it was irrelevant that police never charged Ms. Young with a crime, and that the forfeiture was relatively disproportionate to the son’s crimes. Ms. Young won an intermediate appeal to the Commonwealth Court, which overturned the trial court’s decision. The state then appealed to the Supreme Court of Pennsylvania.
The high court engaged in the substantial analysis in a seventy-three-page published decision. They held that for the state to seize the property of an individual, they must show that the property played an important part of a crime, that the value of the property seized cannot be disproportionate to the offense, and that there must be significant evidence that the property owner consented to the crimes committed. To allow otherwise would be a violation of the 8th Amendment’s excessive fine protection.
Law enforcement has been abusing civil forfeiture authority to seize the assets of individuals over petty crimes committed by others or even without any proof of wrongdoing whatsoever for some time. According to Reason, Philadelphia alone has taken over one thousand homes, three thousand vehicles, and forty-four million dollars over the last eleven years. Seven million went straight to the salaries for the Philadelphia District Attorney’s office and Philadelphia PD.
The Institute for Justice (IJ) estimates that the US government has seized twenty-nine billion dollars over fourteen years, and shared almost five billion with state agencies under a program known as “equitable sharing.” The records for state level forfeitures are limited, but IJ estimates that state agencies seized two hundred fifty-four million dollars in 2012 and that seizures have doubled over the eleven years between 2002 and 2013. In the states that would provide information on how they spent the seized money, thirty-three percent went to law enforcement equipment, twenty-one percent went to salaries, and seventeen percent went to “other.”
It is well established in the law that the state can seize property either as contraband or as punishment for a crime under criminal forfeiture. But civil forfeiture practice has evolved into a poorly executed means of creating law enforcement and prosecutorial slush funds, and as such, it is wide open for corruption. In many states, police need charge no one with a crime, and the actions against property are civil in nature, so only require as little as a preponderance of the evidence to seize assets. Many people are shaken down by police at roadside stops and are stripped of cash and or vehicles, only to be forced to sue the state to prove that they aren’t criminals to get their property returned, bearing the cost of representation. What’s even worse is when they are compelled to sign waivers releasing their property in exchange for being released from a threat of prosecution of whatever charges law enforcement can dream up. Additionally, in many states, seized money can be spent on anything, and as a result, there is a huge incentive for police to take whatever they can grab.
All of this abuse is creating attention. The more victims law enforcement creates, the more civil liberty advocates like the Institute for Justice and the ACLU are increasing pressure on police and prosecutorial agencies engaged in these schemes. Further, it’s not just the Pennsylvania judiciary that is taking notice. United States Supreme Court Justice Clarence Thomas has also offered sharp criticism of the practice. His written statement in concurring with a decision to deny review in Leonard v. Texas included the following statements:
This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses.
These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.
And because the law-enforcement entity responsible for seizing the property often keeps it, these entities have strong incentives to pursue forfeiture.
When properly used, civil forfeiture can be a great tool to deny serious criminals the tools of their crime. Unfortunately, unethical police, prosecutors, and judges have allowed various agencies to run amok, to the point that every day people are unsafe from being robbed at gunpoint by law enforcement. It is encouraging that finally, in a nation where eighty-four percent of its citizens disapprove of civil forfeiture, that at least some justices in the highest courts are finally taking notice.