This is an abstract of my research thus far into civil asset forfeiture in Philadelphia. These findings were published in two articles in the Philadelphia City Paper:
– – “The Cash Machine: How the Philly D.A. seizes millions in alleged crime money — whether there’s been a crime or not.” [Philadelphia City Paper, 11/29/2012]
– “How the D.A. spends millions of dollars is a mystery.” [City Paper, 11/29/2012] Supplement focusing on the (unknown) ways the District Attorney’s office uses the millions in assets it seizes via forfeiture.
In 2012, I received a grant from the Fund for Investigative Journalism to assist my reporting around the use of “civil asset forfeiture” in Philadelphia.
Civil asset forfeiture is a legal construction by which a government entity can seize property on the premise that the property represents the proceeds of or vehicle for a crime. A relatively obscure legal practice for most of American history, civil asset forfeiture took on new meaning in the 1980s when Congress expanded forfeiture powers as part of the country’s “war on drugs,” and states followed suit, instituting their own civil asset forfeiture programs on the county and local level, often using forfeiture proceeds to fund local law enforcement agencies. While these laws were originally conceived as a way to go after the assets of drug kingpins and large organized crime operations, their use has expanded in many jurisdictions to include the seizure of cars, cash, and other property seized in small-time drug arrests.
Critics of these practices, who range the political spectrum from libertarians to liberals, point to two main “flaws,” with civil forfeiture:
- Fairness and Due Process: Because the proceedings are civil, and not criminal, the federal government and most states do not require a criminal finding of guilt, or even a criminal charge, to proceed with forfeiture. The result, critics contend, are legal systems that can result in severe penalties — the loss of a house, for example — without the protections usually afforded those accused of a crime, including a right to free representation and the high standard of “proof beyond a reasonable doubt” used in criminal cases (most civil forfeiture statues require only a “preponderance of evidence,” a far lower burden of proof.
- Profit Incentives: The fact that assets seized in civil forfeiture proceedings are often turned over to the very law enforcement agencies that carry out the civil suits (and the arrests and/or criminal proceedings that they arise from) means, critics contend, creates a profit motive for law enforcement agencies, and an incentive to pursue as many of these cases as possible as aggressively as possible.
References: A thorough (and partisan) summary of the history of civil asset forfeiture in the United States and objections to it can be found in the report “Policing for Profit” by the Institute for Justice, a Libertarian civil liberties law firm; the American Civil Liberties Union has also raised objections to the use forfeiture in ways it maintains violate due process and civil liberties.
Philadelphia: A Civil Forfeiture Cash Machine
My research (which is ongoing) has already lead to several surprising findings about how forfeiture operates in the Philadelphia, which may serve as an example of some of the more questionable aspects of civil asset forfeiture taken to a logical conclusion and on a massive scale: indeed, Philadelphia operates the largest and “pettiest” civil asset forfeiture operation for which I have seen data anywhere in the United States.
Data: My empirical analysis was based on thousands of digital court records of forfeiture cases obtained via a public records request from the First Judicial District of Pennsylvania, as well as a close examination of physical court records from randomly sampled cases from 2010 and 2011. I also personally interviewed dozens of “respondents” in civil asset forfeiture cases, whom I met outside the two courtrooms in Philadelphia that process these cases; my research included as well interviews with many private attorneys, the District Attorney’s office, and other local and national experts on forfeiture.
Scope and Size:
- The Philadelphia District Attorney’s forfeiture unit pursues a vast number of cases, both compared to other Pennsylvania counties and compared to other law enforcement agencies around the United States. Where Allegheny County, the state’s second largest county and which is home to its second-largest city, has pursued some 200 forfeiture cases since 2008 — Philadelphia’s district attorney pursued 6,560 cases in 2011 alone; in some years, it has pursued more than 8,000 such cases.
- While very few statistics are available for the number of forfeiture cases in other U.S. counties, what evidence I could gather suggests that other large cities pursue forfeiture largely through a federal “equitable sharing” program which allows these counties to turn the cases over to federal agencies and share in the proceeds. While these cases are subject to a federal minimum value of $2,000, the Philadelphia District Attorney, by pursuing cases itself, is not subject to such a minimum.
- The vast majority of the cases it pursues are for far smaller sums: the total average amount seized in asset forfeiture cases in 2010 by the Philadelphia D.A. was just $550; in a sample of more than 100 I reviewed, the median sum seized was only $178; in some cases, the Philadelphia District Attorney has pursued cases involving less than $100.
- The Philadelphia District Attorney’s office is able to create and pursue so many cases thanks to an assembly-line-like process in which civil forfeiture cases are generated directly from police property receipts; criminal charges (if there are any) are not reviewed until after the case’s first listing in court, despite a formal “affirmation” by the D.A. as to the veracity of the details of the case.
- Some cases demonstrated seemingly-lax standards by which these cases are generated: Some corresponded to arrests that occurred as many as twelve years prior; others involved summary, not criminal offenses — a man cited for selling cigarettes without a license — for which the law already describes penalties.
- While state statue requires that “respondents” in these cases be served, and while the D.A. asserted in interviews that it serves respondents by certified mail or, if that fails, in person, my review of just a handful of cases (some randomly-selected, some not) showed that the D.A. has proceeded with forfeiture cases when service was not made. In more than one case, the address listed in the law suit, taken directly from police property receipts, was invalid or belonged to a long-vacant house.
Of guilt and innocence:
- Not only does the D.A. not review criminal charges before filing a forfeiture case, but the office proceeds with these cases without regard to the individual’s eventual guilt or innocence, and even when the individual was never charged with a crime in the first place.
- Of 300 randomly-selected cases I reviewed, I could tie only 180 to to closed criminal cases: of those, 81% resulted in a finding of guilt. The rest were (eventually) found not guilty, or had charges against them withdrawn. In virtually all of these cases, the D.A. had succeeded in forfeiture proceedings long before.
- Even given conservative estimates as to the number of individuals who are never found guilty, the Philadelphia D.A. has seized “criminal” cash or other assets amounting to hundreds of thousands of dollars from individuals never charged with or convicted of the alleged crime.
- Roughly 80% of the thousands of cases filed annually by the Philadelphia D.A. end in a “default judgment” when the respondent fails to appear at his/her first court listing. The D.A. thus secures some $4 million or more annually for itself and the Philadelphia Police Department without ever proving its case or, indeed, even stating its case before a judge.
- While it’s unclear why so many individuals fail to appear (and surely the case that many do not have a legitimate claim to the assets seized), there are many legitimate explanations: lack of service (see above), lack of representation, and the overwhelming truth for many individuals that the legal battle to win back their assets may cost more in time and money than the amount seized in the first place.
- Those who do fight to get their assets back face a steep uphill battle. Assistant District Attorney can and do re-list cases many times, forcing respondents to appear over and over again in court, whether or not any accompanying criminal case is ongoing.
- Winning a criminal case is no guarantee that property will be returned. Even in cases in which no criminal charges have been filed, the D.A. has pursued forfeiture cases for months or longer.
- An analysis of more than 8,000 asset forfeiture cases filed in 2010 showed that the 17 percent of cases (or roughly 1,400) in which respondents appeared at least once took more than eight times as long, an average of 260 days, to complete as did cases that ended in first-listing default judgments. See a “Sankey Diagram” of how these cases proceed over time here.
- Respondents who did fight their cases were required to come to court an average of five times before their cases were completed. More than 100 respondents were required to come to court 10 times or more — risking a default judgment against them if they failed to appear just once. By September 2012, roughly 9 percent of the cases were still listed as “active” — an average 695 days after they were filed.
- The Philadelphia District Attorney’s office brings in between $5 million and $6 million annually via civil asset forfeiture proceedings – a large amount of money by almost any measure; it represents roughly one-fifth of the city of Philadelphia’s entire annual budget for the District Attorney’s office.
- This money is shared with the Philadelphia Police, whose officers instigate forfeiture proceedings by seizing assets in arrests and other stops. The breakdown of this revenue-sharing is unknown, as the D.A. would supply no information.
- The D.A. has declined to provide any information at all regarding how this large revenue stream is spent. A “right-to-know” request was denied. I was able to obtain reports submitted annually to the Pennsylvania Attorney General’s office. These reports, which I will post online, show only vague line items (“Salaries,” e.g.) for expenditures.