Don’t expect misuse of Pennsylvania’s civil asset forfeiture to be restrained all that much under a reform bill making its way through the state legislature. Strong legislation to try to eliminate the worst of the abuses by police and prosecutors has been gutted in order to pass. There will still be some reform, but they’re going to be modest and likely easily bypassed.
Pennsylvania has some of the worst civil asset forfeiture laws in the country when it comes to protecting the property rights and due process rights of citizens. Civil asset forfeiture is the process by which police and prosecutors seize and attempt to keep the property of people suspected of crimes. The word “suspected” matters. Because this is a “civil” process, people do not actually have to be convicted of crimes (or even charged!) in order to risk losing their property.
The twisted incentives created by this civil process leave it wide open for abuse, and the property-protecting activists of the Institute for Justice has been fighting for reforms. Pennsylvania has been one of their targets. They filed a class action lawsuit against the city of Philadelphia prompted by the case of a couple who risked losing their home to the city because their son was caught allegedly selling $40 worth of drugs. From IJ’s analysis, law enforcement agencies and prosecutors in the state have raked in more than $150 million over 13 years.
Senate Bill 869 was an attempt to significantly reform this forfeiture process. Two of the proposed changes would have been huge deals. The first would have required criminal convictions in order to attempt to seize and keep somebody’s property. That would essentially eliminate the “civil” part of civil asset forfeiture. The second major change would have required the money seized to go through a government general fund rather directly into the budgets of police or county attorneys’ offices. This would have eliminated a significant incentive that encourages law enforcement to seize whatever they can. It also, incidentally, would have stopped local law enforcement from bypassing state restrictions by turning to the Department of Justice’s asset forfeiture “Equitable Sharing” program. Law enforcement agencies can partner up with the DOJ for raids and then funnel the forfeitures through the federal program rather than the state, which also allows them to bypass tougher rules the state would apply. But the federal program requires that law enforcement agencies have their own funds to accept the money. The change to sending the money to the general fund would keep local police from bypassing state rules and running to the feds.
But those two reforms are gone now. David Gambacorta of Philadelphia Magazine researched and discovered that the state’s District Attorneys Association pressured legislators to pull back on those two components. Of course, those two were the components that were most important to preventing abuse.
But there’s still reform in the legislation and it’s not completely worthless. The bill will increase the standard of proof to “clear and convincing evidence” that the property or money being seized is connected to a crime. That’s one step below the amount of evidence required to convict somebody of a crime. And it will increase reporting requirements by law enforcement agencies and counties and also make it easier for citizens to find out how to attempt to get their stuff back.
Still, IJ thinks that reporting requirement is not nearly enough and is hoping the House will give SB 869 some teeth back:
Even if the bill becomes law, it will not require reports to identify seized and forfeited assets, detail whether a seizure was challenged, record whether a suspect was convicted, or describe how property was disposed of (e.g. returned to an owner, sold, destroyed or retained by police). Reporting such details would shine a light on this source of secretive government funding.
Moreover, current reports are accessible only under the Commonwealth’s time-consuming Right-to-Know Law, and the attorney general can make documents inaccessible to open records requests.
This means lawmakers are not getting vital information. In coming years, they must revisit whether a person acquitted of a crime should forfeit property and whether law enforcement should continue to fund operations using forfeiture proceeds. Policy debates must be based on facts—not conjecture. The best fix is to adopt a central tracking system and public website and to require agencies to post all seizures, forfeitures and uses of proceeds.