The News: The city of Philadelphia ended a four-year lawsuit involving what critics said was “policing for profit.” According to the Philadelphia Inquirer, “Philadelphia officials on Tuesday pledged to reform the city’s civil forfeiture program, which had been used to seize thousands of homes and vehicles and millions of dollars in cash from criminal suspects — and in some cases from people never charged with a crime.”
The Background: Civil asset forfeiture is a controversial legal tool that allows law enforcement officials to seize property they claim has been involved in specific criminal activity.
Typically, civil law involves disputes between private citizens while criminal law involves disputes between private citizens and the state (i.e., the “people” represent the interest of victims). Civil asset forfeiture is a hybrid of the two, a dispute between the state and a private citizen’s property. Because civil asset forfeiture proceedings charge the property itself with involvement in a crime, the property owner must prove the property was not involved in criminal activity. Such property can include land, vehicles, cash, personal possessions, etc.
As the Department of Justice notes, it is “because civil forfeiture actions are brought against the property directly that federal civil forfeiture cases have what appear to be very peculiar names, such as United States v. Ninety Three (93) Firearms, 330 F.3d 414 (6th Cir. 2003), United States v. One 1992 Ford Mustang GT, 73 F. Supp. 2d 1131 (C.D. Cal. 1999), or United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66 (2d Cir. 2002).
In fiscal year 2016, a total of $1,921,273,552 was collected in the sale of seized property by the federal government.
The Principle: #25E — We have a moral obligation to oppose all forms of governmental corruption. (For a list of the principles and links to relevant articles, see this post.)
The Analysis: Not surprisingly, when government has a financial incentive to take property from citizens, it can lead to injustices. A prime example was found in Philadelphia. According to the Institute for Justice (IJ),
For decades, Philadelphia’s system was rigged against property owners. Until IJ brought suit, Philadelphia routinely threw property owners out of their homes without notice. It forced owners to navigate the notorious “Courtroom 478,” where so-called “hearings” were run entirely by prosecutors, without any judges or court-appointed lawyers to defend property owners. Again and again, prosecutors demanded that property owners appear in court, sometimes ten times or more. Missing even a single “hearing” meant that prosecutors could permanently take an owner’s property, sell it and use the proceeds for any law-enforcement purpose they wished. More than 35 percent of proceeds went to salaries, including the salaries of the very officials seizing and forfeiting property, thus creating a perverse incentive to abuse this system.
“For too long, Philadelphia treated its citizens like ATMs, ensnaring thousands of people in a system designed to strip people of their property and their rights,” said Darpana Sheth, a senior attorney at the Institute for Justice and director of its Initiative to End Forfeiture Abuse. “No more. Today’s groundbreaking agreement will end years of abuse and create a fund to compensate innocent owners.”
“Today’s settlement is an unprecedented blow against civil forfeiture,” adds IJ President Scott Bullock. “IJ is continuing the fight to stop the government from using the justice system to raise revenue. Philadelphia is just one place where officials created a rigged system that deprived individuals of their property without due process.”
The win in Philadelphia is the first step in what needs to be a comprehensive reform of civil asset forfeiture—especially at the federal level. Over the past few years, several states had been making it more difficult to apply such forfeitures reducing the incentive to engage in “policing to profit.” But last year, Attorney General Jeff Sessions announced the Justice Department would be reinstating the Equitable Sharing Program, a controversial policy ended by President Obama in 2015 related to civil asset forfeiture. that allows all local law enforcement agencies have access to forfeitures through participation in “equitable sharing” with the federal government.
Equitable sharing allows state and local law enforcement to team with the federal government to forfeit property under federal law instead of state law. Participating agencies allow the federal government to keep some of the proceeds from the sell of the seized property, though they may receive up to 80 percent for themselves.
Although some form of civil forfeiture has existed since the founding of the United States, the modern form dates back to the Comprehensive Crime Control Act of 1984. This federal law authorized federal officials to implement a national asset forfeiture program.
In federal law and 35 states, the burden of proof is placed on the owners of the property to prove they had nothing to do with the alleged crime. As the Institute for Justice explains,
In essence, most civil forfeiture laws presume that people are connected to any criminal activity involving their property and force them to prove otherwise to recover it. This is precisely the opposite of what happens in criminal trials, where the accused is presumed innocent until proven guilty by the government. It also often involves a practical impossibility, as it requires people to prove a negative—that they did not know about or consent to the illegal use of their property.
