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But with the economic instability caused by the coronavirus pandemic, some worry law enforcement and prosecutors could actually step up efforts to seize criminal defendants' property.
At a time when politicians of all stripes are thinking of ways to reshape the criminal justice system, an oft-overlooked law enforcement practice is receiving new scrutiny. Civil asset forfeiture, the process of police departments confiscating property they suspect is involved in a crime—and then keeping it—is ripe for reform, advocates say.
In many states, law enforcement can seize cash, cars, and homes before a property owner is charged or convicted—and in many cases, civilians have to sue to reclaim their property, even if they’ve been found innocent or charges are dropped. In recent years, civil asset forfeiture has become a back-door budget boost for many police departments across the country. A 2010 survey of 800 police departments found that nearly 40% said that civil forfeiture proceeds were a “necessary budget supplement.”
Elected leaders across the country now say they want to change the system dubbed “policing for profit.” In the past few weeks, mayors have expressed interest in local reform, state legislators have introduced bills and established committees, and federal lawmakers have revived previously ignored legislation.
Last week, U.S. Reps. Rashida Tlaib and Ayanna Pressley introduced the BREATHE Act, a measure that calls for sweeping changes to the criminal justice system, including abolishing civil asset forfeiture. In late June, a group of Republican senators introduced the FAIR Act, specifically directed at reforming federal civil asset forfeiture policies. That bill calls for any assets seized by federal law enforcement to be deposited in the Treasury’s general fund instead of going to law enforcement and the right to guaranteed legal counsel for property owners whose property were seized. The most consequential reform in the bill is the elimination of the equitable sharing program, a system in which police departments that work with federal agencies get to keep up to 80% of the amount seized in civil asset forfeiture cases, even if they wouldn’t be able to keep the money under state laws.
Advocates for forfeiture reform have long called for the end of the federal program, but in recent years have put their hope in state legislatures, where reform has slowly gained steam.
“State legislators have really become aware this is an issue in the past five years,” said Jennifer McDonald, a senior research analyst at the Institute for Justice, a nonprofit law firm that often files class action lawsuits on behalf of the victims of civil asset forfeiture. “It’s become a bipartisan outrage. Conservatives are very concerned about the constitutionality of civil forfeiture, and liberals are concerned with police overreach.”
The issue got more attention in recent years with a legal battle that rose all the way to the Supreme Court. In 2019, the high court in Timbs v. Indiana ruled unanimously in favor of an Indiana man who lost his $40,000 Land Rover when arrested for selling less than $500 worth of drugs, a penalty the justices found to be unconstitutionally excessive. But the legal ramifications of the ruling were relatively limited and didn’t outlaw civil asset forfeiture. The ACLU referred to the ruling as a “jumping off point for our much broader efforts to eliminate civil asset forfeiture.”
In recent years, legislators have focused on bills that would raise the minimum standard of proof that a crime has been committed for an asset to be seized, require a criminal conviction before forfeiture can take place, or remove the profit incentive from police by redirecting seized assets to a general fund. Some states have made significant changes, most prominently New Mexico, which entirely eliminated civil asset forfeiture in 2015 and replaced it with criminal forfeiture. In criminal forfeitures, a suspect must be convicted in criminal court, with the same judge and jury determining if the property was linked to the crime and therefore should be forfeited.
Those new requirements came from “a dream bill, the gold standard,” McDonald said. More often, states are considering incremental reforms, like one currently on the table in Pennsylvania that would change the laws around civil asset forfeiture to require proceeds to go to county general funds, as opposed to prosecutors’ offices, and require a connected criminal conviction of a property owner prior to forfeiture.
A representative from the Pennsylvania District Attorney’s Association said that the organization “will always in engage in conversation to improve the system” and has supported civil asset forfeiture reform in the past. The organization does not, however, support shifting forfeited assets from prosecutors’ offices to general funds. “We strongly believe they should continue to be directed by local prosecutors and support crime-fighting programs, law enforcement resources and initiatives,” the PDAA representative said.
But state Senator Anthony Williams, the bill’s sponsor, said that too often, civil asset forfeiture happens “behind the scenes.”
“There are so many cases where no one is even charged. The district attorney becomes the judge, the jury, and the spender of this money,” he said. “These changes could flip the scales of justice back in a more appropriate way from the people who prosecute to the people who elect them.”
Williams, a Democrat from Philadelphia, said that he first learned about civil asset forfeiture several years ago and thought the practice was “outrageous,” but didn’t believe it could be something happening in Pennsylvania.
He subsequently learned that Philadelphia has been criticized for having one of the most abusive civil asset forfeiture systems in the country—from 2002 to 2014, law enforcement took in $72 million from civil asset forfeiture, compared to the $102 million collected by the state’s 66 other counties combined. A lawsuit filed against the city alleged that law enforcement had turned “this tool into a veritable machine, devouring real and personal property from thousands of residents, many of whom are innocent, and converting that property into a $5.6 million average annual stream of revenue.”
After a four-year legal battle with the Institute for Justice, the city entered into a consent decree and committed to overhauling civil asset forfeiture practices and establishing a $3 million compensation fund for innocent people whose property was confiscated. Now, a representative from the Philadelphia District Attorney's Office said that the office “does not, and cannot, use forfeitures for revenues.”
But while changes have swept through Philadelphia, Williams said that “we don't really know what goes on with that money” in other parts of the state because civil asset forfeiture revenue is “not transparent in the traditional way we appropriate money.”
Such is a common complaint of civil asset forfeiture reformists. Often, it’s difficult to tell how much property has been seized, who it was taken from, and where that money went, because data reporting requirements are scattershot or lack enforcement. Activists say this also prevents advocacy groups from knowing who is most affected by civil asset forfeiture—though some local news investigations have found that civil asset forfeiture disproportionately affects Black residents. A 2019 investigation in South Carolina found that seven out of 10 people whose assets were seized are Black. Another recent investigation by the ACLU in Pennsylvania’s Montgomery County found that 53% of property owners facing forfeiture are Black, though Black people make up only 9% of the population.
Some worry that despite the renewed focus on civil asset forfeiture, the current economic climate created by the coronavirus pandemic could actually make governments or police departments turn to it more. Police could see smaller budgets in the years to come as activists and some politicians call for stripping away some police functions and giving them to non-law enforcement agencies. And local and state governments in general are expected to be forced into budget cuts as tax revenues decline.
“We have research that shows when local budgets suffer and there's lower revenue, cities and counties turn to fines and fees and civil asset forfeiture,” said McDonald. “We’re always concerned that when the economy isn't going well, these predatory local practices will creep back up.”
But that can be a dangerous precedent to set, McDonald continued. “When citizens perceive the local government’s actions as predatory, they tend to have less trust in government, which leads to a less stable society overall.”
In Pennsylvania, Williams said he is hopeful the current moment will actually help push his bill forward, and that a clause in the bill that holds the state liable for three times the amount they seized if someone is innocent would force prosecutors to “put a lot more thought” into their decisions. “Anytime we reform the judicial system, this must be a part of it,” he said. “It should be an easier lift than some of the other reforms people talk about. I don’t think these changes are an extraordinary request.”
Emma Coleman is the assistant editor for Route Fifty.