Published On: Fri, Oct 23rd, 2015

Disparate use of civil asset forfeiture troubles reform advocates

By Andrew Staub | PA Independent

Sitting before a state Senate panel Tuesday, Louis Rulli recounted the story of former Philadelphia Eagles coach Andy Reid’s two sons, both sentenced to jail in 2007 for drug-related offenses by a judge who described the family’s suburban Montgomery County home as a “drug emporium.”

“Those were his words, the judge’s words,” said Rulli, a practice professor of law at the University of Pennsylvania Law School. “Did you ever see a civil forfeiture petition brought against Andy Reid’s home? Of course not.”

Rulli used the anecdote to illustrate the disparate use of civil asset forfeiture, a legal tool prosecutors can employ to take and keep cash, cars and even homes if they claim the property has ties to crime, usually drug-related activity. The law does not require a conviction — or even the filing of criminal charges — for somebody to lose property.

After supervising a law clinic that helps low-income people in forfeiture cases, Rulli noticed a disturbing trend. When mapping the 476 forfeiture petitions filed against Philadelphia homes in 2010, he discovered most happened in predominantly non-white neighborhoods. Just one occurred in the area with the highest population of white homeowners, he said.

Andrew Staub/PA Independent

BAD PUBLICITY: State senators listened Tuesday to testimony during a hearing that focused on the state’s controversial civil asset forfeiture law.

“It is a contrast that is troubling, and it has to be addressed,” Rulli said after underscoring the point with the Reids’ story.

Rulli’s comments came just a day after the American Civil Liberties Union of Pennsylvania released a scathing report, titled “Broken Justice,” about forfeiture in Montgomery County. The ACLU found that more than half the property owners facing forfeiture from 2012 to 2014 were African-Americans, who comprise just 9 percent of the county’s population.

“This report shows that the problems with our civil asset forfeiture system aren’t limited to Philadelphia,” said Reggie Shuford, executive director of the ACLU of Pennsylvania. “Our state’s civil forfeiture laws are fundamentally broken and lead to abuse and injustice. These problems can only be fixed with statewide legislation.”

Lawmakers have mulled changes to the state’s forfeiture law for more than a year. A bill in the Senate would require that prosecutors convict somebody before seizing property through forfeiture.

“Our whole legal system was based on, from its very beginning, that you are innocent until proven guilty,” said state Sen. Mike Folmer, the Lebanon County Republican sponsoring the reform.

Rulli contends the system is stacked in favor of prosecutors. Forfeiture petitions are filed against property, not people, in civil court. Prosecutors have a lower burden of proof than they would in criminal court, where a conviction requires evidence beyond a reasonable doubt.

Property owners can raise an innocent owners defense, but because they aren’t entitled to an attorney in civil cases most people don’t even realize it exists, the ACLU has said. Some won’t even bother to hire an attorney because the property values aren’t worth the expense.

Courtesy of Ballotpedia

STICK TO THE CONSTITUTION: State Sen. Mike Folmer believes somebody should be proven guilty before prosecutors can forfeit their property.

Prosecutors also keep forfeiture proceeds — another point of contention among critics who see it as perverse incentive to take property.

Folmer insists he’s not out to hamstring law enforcement agencies trying to crack down on drug crimes. His bill would still allow police to seize property, which, they suspect, is tied to criminal activity, he said.

But Folmer has encountered resistance from prosecutors who say waiting for a conviction is impractical and would allow drug traffickers to continue using assets for illegal activities. They’re open to more minor reforms, such as setting a higher burden of proof, tweaking the innocent owners defense to place more of an onus on the state and changing the process for home seizures.

They worry about collateral damage from Folmer’s bill.

Montgomery County District Attorney Risa Vetri Ferman, president of the Pennsylvania District Attorneys Association, even called the legislation the “Drug Dealers Bill of Rights” in written testimony she submitted to the Senate Judiciary Committee.

“It’s important to point out that if we cannot sustain the criminal burden of proof, that does not mean there was not criminal activity, and that does not mean that there’s no evidence of criminal activity that would justify some action,” Ferman said in less inflammatory comments before the committee.

State Sen. Daylin Leach, D-Montgomery, took issue with repeated rhetoric that “drug dealers” would be receiving favorable treatment. Somebody must first be convicted to receive the drug dealer label, he said, and that doesn’t always happen, even when property is taken through forfeiture.

“If someone’s convicted of being a drug dealer, take their yacht, take their car, OK, that is fine,” he said. “I’m talking about innocent people having their stuff taken, which is very different.”

After making her case to the committee, Ferman faced more questions about the ACLU report.

It found Montgomery County property owners successfully defended their cases just 0.3 percent of the time. An estimated 23 percent of the cases were filed against people who have not been found guilty of a related crime, though proceeds from forfeiture were equivalent to 7.3 percent of the district attorney’s about $13 million budget, according to the ACLU.

While Ferman said prosecutors must be mindful of disparate treatment, she called the report inaccurate. Out of 235 closed cases in 2015, 232 were subject to criminal charges, she said.

“The fundamental core of what the ACLU is trying to say — that we’re taking things from people who are not being prosecuted, not being charged — it’s just not true,” Ferman said.

Ferman also took issue with Rulli’s reference to Reid’s family’s situation. His sons were charged in incidents that happened outside the Montgomery County home, she said. Reid is now head coach of the Kansas City Chiefs.

“With all due respect to the professor, I think had we moved in a forfeiture against that house, he would have been screaming bloody murder,” Ferman said.

It wasn’t Rulli’s lone anecdote. He also recalled a story about a black 77-year-old North Philadelphia woman who could have lost her home in forfeiture proceedings in 2001.

Margaret Davis, who had end-stage renal disease, usually kept her front door unlocked so neighbors could check on her. In August of that year, suspected drug dealers crashed through the door while fleeing police and ran out of the back of the house. Along the way, they dropped some of their illicit cargo in her home, Rulli said.

Police found the stash. Not long after, the district attorney’s office filed a forfeiture petition to take Davis’ home. They never charged her, or even suspected her of a crime, but they still wanted the home, Rulli said. Prosecutors dropped the petition after Davis obtained legal help from Rulli’s clinic.

“This was a law intended to go after kingpins, to go after cartels and criminal enterprises,” he said, “and instead, it’s being unleashed against ordinary citizens.”

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