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Recently, R. Seth Williams, District Attorney of Philadelphia, wrote in praise of asset forfeiture laws, undoubtedly in response to the ongoing suit challenging the city’s forfeiture program. Mr. Williams defends asset forfeiture as necessary to root out the drug trade. He asks us to
Think about the kid who can’t play outside anymore because he might get caught in the cross fire; the grandmother who’s threatened by dealers when she just wants to sit on her porch; the homeowner … who has to watch [his house] value plummet when his block becomes an open-air drug market.
Unfortunately, it is hard to believe that law enforcement even seriously believes anymore that the primary purpose of forfeiture is to fight the drug war.
Stories of law enforcement abusing the practice are manifold. Whether it’s the Florida operation that allowed drugs to continue to flow north on I-95 while picking off people in the southbound lane who were known to be carrying cash, the Nevada officer who alone brought in over $60,000, or Philadelphia’s own notorious courtroom 478, where over $64 million of citizen property was seized in a 10-year period – what is clear is that there is a profit incentive at work motivating law enforcement to seize property for their own enrichment.
In New Jersey, Assistant Prosecutor Sean McMurtry made a stir in 2011 when he spoke about the practice. Lecturing on asset forfeiture, he advocated for heavy-handed seizure of private property, saying:
If you want the car … I’ll fight for it … If in doubt … take it!
Frankly, its hard not to become apoplectic when confronted with views such as those put forth by Mr. McMurtry and Mr. Williams. It is outrageous to permit property seizure without any actual conviction – which is frequently the case in asset forfeitures. Further, in most jurisdictions, persons who face civil asset forfeiture proceedings have no right to representation.
Worse still, prosecutors typically enjoy a much lighter evidentiary standard when attempting to seize property. In criminal court, a prosecutor must prove someone committed an alleged crime “beyond a reasonable doubt.” As asset forfeiture is a civil proceeding, prosecutors will typically only need to show that “more likely than not” a pile of cash, a house, or an automobile was somehow connected to possible criminal activity. Thus defendants, overwhelmingly indigent, are forced to represent themselves against sophisticated government actors who are intent on taking their property. In practice, this means that over 80% of federal forfeiture proceedings go completely uncontested.
Constitutionally speaking, asset forfeiture is, at best, of dubious legality — Supreme Court authority gives a clear understanding that due process rights are violated when government actors are given an incentive to seize property for the state’s own benefit.
For instance, the Supreme Court has held that statutes drawn to stimulate local governments “to organize and maintain courts to try persons accused of violations” were likely to run afoul of the Constitution, particularly when such inducements were a means of “substantially adding to the income” of the government body. Further, while “prosecutors are permitted to be zealous in their enforcement of the law,” they will nonetheless be subject to limitations when they are “distorted by the prospect of institutional gain as a result of zealous enforcement efforts.”
The practice works differently in different jurisdictions, but it is frequently the case that seized property is put directly into “service” by law enforcement. Further, in some jurisdictions, seized funds are used to pay salaries. For instance, from 2002 until 2011 Philadelphia seized over $64 million from its citizens — $25 million of which went to payroll.
In his lecture, Mr. McMurtry addressed the issue of bad incentives:
Well, there is an incentive, yes. Civil asset forfeiture is a pretty important component of the criminal practice and the money that goes to the local police department does provide some assistance to them.
The New Jersey prosecutor’s office is certainly aware of the lurking constitutional problems. A 2011 report to the governor observed that any relaxation of the current restrictions on the asset forfeiture programs “may substantially increase the likelihood that the entire forfeiture framework would be invalidated.” Why? Because “the constitutionality of civil forfeiture laws continues to be controversial.”
And so it is that I cheer the suit against the city of Philadelphia in the hope that a real dialogue on forfeiture reform can finally take place in legislatures across the country. Forfeiture actions should proceed against people, not property. There should be an actual criminal conviction, and the government should have to prove that the property was substantially connected to criminal activity.
Further, whatever else is changed about forfeiture practice, the bad incentives need to be addressed. Under no circumstances should law enforcement be entitled to retain any property. Put it in a neutral fund – education, drug treatment – anything except back into the coffers of the agency responsible for seizing assets.
Mr. Williams can pluck at our heartstrings with stories about threatened grandmothers and children who cannot play outside, but the road to safety must never be paved by a corrupt machine that violates the rights of American citizens.