Isaiah Thompson, The Cash Machine. Philadelphia City Paper, 28 November 2012. “An investigation by City Paper, assisted by a grant from the Fund for Investigative Journalism, into the Philadelphia District Attorney’s civil asset forfeiture process reveals one of the largest American municipal-forfeiture programs for which City Paper has seen statistics, and one that operates with great efficiency largely by allowing questions of guilt, innocence or whether a crime has even been alleged to come last, if at all.
While the District Attorney’s Office files hundreds of cases each year seeking the forfeiture of real estate, this process is in many ways separate and distinct from the thousands of cases it files against seized currency or cash. It is the latter that brings in the bulk of forfeiture revenue — about $4.5 million — and City Paper focused primarily on currency forfeitures for this story.
CP analyzed records for thousands of forfeiture cases, spent weeks monitoring legal proceedings and spoke with many individuals caught up in the process of attempting to reclaim their property. The picture that emerged was a kind of “seize first, ask questions later” policy in forfeiting individuals’ money. You might think of it as a corollary to the better-known (and controversial) policy of “stop and frisk” that exists here and in other cities. Call it “stop and seize,” a legal dragnet that catches the innocent, guilty and unaccused alike.”
That police officers regularly confiscate cash from persons arrested in Philadelphia might not come as a surprise. State law allows police to seize money — and other personal property, including cars, guns, even real estate — from suspected criminals, as possible evidence in a criminal trial.
What you might not know is that that money is likely destined to become not just evidence but revenue for the Police Department and the District Attorney’s Office prosecuting the case — long before those alleged drug dealers are ever proven guilty or innocent in court, and often regardless of the outcome of any criminal proceedings.
By way of a process known as “civil asset forfeiture,” carried out in Philly by the Philadelphia District Attorney’s Office, the DA may sue to take ownership of confiscated property and, if successful, keep it.
The law’s intent is straightforward enough: to target drug criminals (and, to a lesser extent, other types of criminals) by going after the proceeds and mechanisms of their crimes, and to use those ill-gotten gains for the benefit of the public.
The implementation, though, is more complicated. In Philadelphia, the law has laid the framework for a civil asset forfeiture program that brings in upwards of $6 million a year from cases against thousands of Philadelphians, with little oversight of how cases are pursued or how profits are distributed….
The Philadelphia DA pursues virtually every nickel seized by Philadelphia police officers; it does so without regard to the owner’s guilt or innocence; and it makes fighting to retrieve assets difficult and/or costly enough that few, innocent or not, will ever see their property returned….
These findings raise questions about whether Philadelphia’s civil forfeiture practices are being used fairly, says Vanita Gupta, an attorney for the American Civil Liberties Union who helped secure a settlement in a class-action lawsuit over forfeitures in Tenaha, Texas, where police officers were routinely stopping (mostly minority) motorists and seizing currency from them without filing any charges.
“The whole purpose of civil asset forfeiture is to make sure people are not permitted to profit from criminal activity,” says Gupta, who says the small amounts in play in many currency seizures in Philadelphia presents its own problem: “It’s one thing when you have hundreds of thousands of dollars being seized from the trunks of cars. But when police are taking such small amounts from so many people who are never charged with a crime, it raises grave questions about whether these commonplace amounts were really obtained through criminal activity.”…
In 2009, after Mayor Michael Nutter proposed cuts to the DA’s budget and suggested that the office tap its forfeiture funds to help make up the difference, then-District Attorney Lynne Abraham blasted that idea in a speech before Council.
Quoting from Pennsylvania’s forfeiture law, which states that government bodies “shall not anticipate future forfeitures or proceeds therefrom” in adopting budgets, Abraham told Council, “Forfeiture actions must be driven only by legal circumstances, not by economic concerns. … Prohibiting budgetary bodies from considering either federal or state forfeiture to pay salaries or run an office … wisely recognizes that to allow or require law enforcement to depend on forfeiture as its lifeblood is fraught with an inherent and irreconcilable conflict of interest, in which law-enforcement agencies would be turned into overzealous asset bounty hunters, potentially trampling on the rights of innocent citizens in order to balance the budget.”
It was a sentiment that opponents of the asset-forfeiture process would agree with — but, many of them would argue, that’s exactly what’s happening in the Philadelphia District Attorney’s Office already.
Follow-up article: Isaiah Thompson, Law to Clean Up ‘Nuisances’ Costs Innocent People Their Homes. ProPublica, 5 August 2013. “When Rochelle Bing bought her modest row home on a tattered block in North Philadelphia 10 years ago, she saw it as an investment in the future for her extended family — especially for her 18 grandchildren…. But four years ago, something happened that imperiled Bing’s plans. In October 2009, police raided the house and charged her son, Andrew, then 24, with selling 8 packets of crack cocaine to an undercover informant. (Upon entering the house, police reported finding unused packets, though not drugs, in a rear bedroom.) Rochelle Bing was not present and was not accused of a crime. Yet she soon received a frightening letter from the Philadelphia district attorney’s office. Because Andrew had sold the drugs from inside his mother’s house, a task force of law enforcement officials moved to seize Bing’s house. They filed a court claim, quickly approved, that gave Bing just 30 days to dissuade a judge from granting “a decree of forfeiture” that would give the DA’s office title to the property. Bing was devastated…. And so Bing resolved to do what whatever was necessary to keep the house.”
On its face, Bing’s predicament might seem implausible if not unjust. How could someone who’s neither accused nor convicted of a crime be forced to give up her property because of another’s misdeeds? But stories like Bing’s are increasingly more common as Philadelphia and other jurisdictions have embraced the expansive power of forfeiture as a crime-fighting tool.
The idea behind forfeiture is simple enough: drug kingpins, embezzlers, racketeers and other offenders should not be able to keep the financial fruits of illegal acts. Prosecutors often ask a judge to seize the money, vehicles or real estate of a person convicted of a crime.
But authorities can also use civil law to seize assets before the criminal case is adjudicated or, as with Rochelle Bing, even when no charges are brought against the owner.
Doing so offers prosecutors considerable advantages. Unlike the “proof beyond a reasonable doubt” required in criminal law, prosecutors seeking civil forfeitures face a much lower standard. Usually, they need only prove that a “preponderance of evidence” connects the property — not its owner — to a crime. Technically, the property — not the owner — is named as the defendant….
Over the last two decades, forfeitures have evolved into a booming business for police agencies across the country, from the federal Drug Enforcement Administration to small-town sheriff’s offices. Although there is no single tally of all this activity – the information is buried in the budgets, court records and annual reports of thousands of individual agencies — the available data makes clear that billions of dollars in cash, cars, real estate and other assets are being confiscated nationwide every year via civil forfeitures.
One measure is the growth of a program in which federal law enforcement officials seize property on behalf of local authorities in exchange for a share of the proceeds. In 2000, officials racked up $500 million in forfeitures. By 2012, that amount rose to $4.2 billion, an eightfold increase….
Critics argue that the power to pursue civil forfeiture has been abused by prosecutors and is creating a new class of collateral victims. Often they are minorities like Bing without the financial resources or legal know-how to protect their assets.
And prosecutors typically prevail. Of nearly 2,000 cases filed against Philadelphia houses from 2008 through 2012, records reviewed by ProPublica show that only 30 ended with a judge rejecting the attempt to seize the property….
The money raised through forfeiture is handled outside the city’s budgeting and appropriations processes. The law requires only that it be used to enforce Pennsylvania’s drug laws. Critics and experts who study the issue say that gives prosecutors a powerful motive to step up the pace of forfeitures.
“The idea that law enforcement can raise money on its own, through this self-help practice of forfeiture — it’s subversive to the idea of democratic accountability and rule of law,” said Eric Blumenson, a research professor of law at Suffolk University….
[The Civil Asset Forfeiture Reform Act of 2000] addressed several key shortcomings in federal forfeitures, providing “innocent owners” with a defense against being punished for the crimes of a relative or friend. It also provided for the appointment of an attorney when a homeowner faced the loss of his or her primary residence and was too poor to afford legal help.
Those reforms did not extend to the local level, where forfeiture is often governed by state laws….
Forfeitures in cities like Philadelphia and Washington, D.C., are conducted through civil laws. One way to eliminate the inequities of that system would be to conduct property seizures only through parallel laws in the criminal code.
Such laws come into play only after an accused criminal has had his or her day in court. The ACLU’s Gupta said this would rule out one of the more unfair results of the civil cases, which is that people are arrested, lose their property and are then ultimately acquitted on the criminal charges….
Rochelle Bing’s case illustrates the value of legal counsel…. Bing couldn’t afford a lawyer herself. She eventually was referred to the University of Pennsylvania Legal Clinic where law students took on her case without charge.
Bing’s fight to save her home dragged on for two years and required her or her attorney to appear in court no fewer than 23 times. Finally, prosecutors settled the case, allowing Bing to retain ownership if she agreed not to let her son visit when she wasn’t home. (Her son, who negotiated a guilty plea to one count of possession with intent to distribute, had already finished serving his sentence he received.)
Bing said she would have agreed to that condition at the outset.
Additional coverage:
ACLU, Guilty Property: How Law Enforcement Takes $1 Million in Cash from Innocent Philadelphians Every Year–and Gets Away with It. June 2015.
Christopher Ingraham, How Philadelphia seizes millions in ‘pocket change’ from some of the city’s poorest residents. The Washington Post, 10 June 2015.