by Tim Cushing
Techdirt. / 2017-06-13 07:29
Pennsylvania has some of the worst civil asset forfeiture laws in the country. At the top of list of perverse incentives? 100% of proceeds go to the agency that seized the property. As a result, all sorts of abusive forfeitures occur. In one case, law enforcement seized a couple’s house because of a single $40 drug sale by their son.
Legislators in Pennsylvania haven’t made much of dent with their reform efforts. Attempts have been made but every bill presented has been gutted by law enforcement lobbyists before passage. Nothing has made its way to the governor’s desk yet, which is just as well because the disemboweled bills are reform-in-name-only.
The courts could play a part in curtailing forfeiture abuse but the system is stacked against property owners. In forfeiture cases, they’re not even invited to the judicial party. The state files a suit against the property, rather than the owners, and proceeds from there. Far too many courts in this nation have punted on issues like this, kicking them back to legislators to fix the problems. And far too many legislators haven’t had the strength to stand up against powerful law enforcement lobbyists.
Fortunately, the Pennsylvania Supreme Court is raising the bar just a bit for local law enforcement. Granted, the bar was already laying on the ground when it grabbed it, but some upward movement of any form is appreciated. C.J. Ciaramella of Reason reports:
Four years after the Philadelphia District Attorney seized her house without ever charging her with a crime, a 72-year-old grandmother has prevailed at the Pennsylvania Supreme Court, where justices strengthened protections for property owners against civil asset forfeiture.
In a unanimous opinion issued last Thursday, the Supreme Court tightened the rules for seizing property, ruling that, although police and prosecutors have the authority to take property used in illegal activities, there must be clear evidence that the property owner knew of and agreed to the crimes.
The opinion [PDF] does an incredibly deep dive into the background of the case, as well as the amount of evidence (hardly any) the state must provide to take property away from people who haven’t been charged with crimes. The attenuation in this case was minimal: a few controlled marijuana buys ($140 total) from a 72-year-old grandmother’s tenant: her 50-year-old son.
The court’s decision relies partly on something only slightly related to the act of civil asset forfeiture: excessive fines. Weighing the value of the house seized against the criminal act, the court finds the punishment does not fit the crime, at least in terms of American dollars.
In Pennsylvania, the gross disproportionality test is applicable to all punitive forfeitures, including civil in rem proceedings. In this regard, the following three, non-exhaustive, factors have been considered: the penalties that the legislature has authorized compared to those to which the defendant was subjected; whether the violation was isolated or part of a pattern of misbehavior; and the nature of the harm caused by the defendant.
Citing Justice Clarence Thomas’ recent comments in a forfeiture case in front of the Supreme Court, the court actually calls the idea of “guilty property” a false assertion — at least not without significant narrowing of that definition.
Based upon the rich history of in rem forfeiture both in England and our country, and the clear demarcation between criminal in personam proceedings and those brought civilly in rem, as well as more recent pronouncements by the United States Supreme Court, it is evident to us that the “guilty property” fiction which serves as the basis for civil in rem forfeiture logically demands that the property sought to be forfeited be an instrumentality of the offense.
In sum, an analysis of whether a civil in rem forfeiture violates the Eighth Amendment requires a threshold inquiry into whether the specific property sought to be forfeited is an instrumentality of the underlying offense. If the property sought to be forfeited is an instrumentality of the underlying offense, the inquiry continues to an examination of proportionality. If not, the forfeiture cannot withstand Eighth Amendment scrutiny and the inquiry ends.
Then the court gets down to dealing with the problems inherent to civil asset forfeiture, a process that allows law enforcement to enrich itself without having to secure criminal convictions.
The potential harshness of a forfeiture against a property owner with no alleged criminal conduct, or minor culpability, however, must be recognized in any excessiveness inquiry, and we find doing so comfortably fits within the United States Supreme Court’s gross disproportionality test. Therefore, we must be wary of forfeiture imposing greater punishment than appropriate for the underlying crime itself. Indeed, a civil in rem proceeding can be viewed in one way as a “super criminal” proceeding, in which a property owner is punished through the seizure of his or her property, but without all the safeguards associated with criminal proceedings. While Fourth and Fifth Amendment protections are applicable to civil forfeiture proceedings, there is no right to counsel for individuals subjected to forfeiture proceedings.
In balancing personal property rights and the deterrent effect of forfeiture, the court says law enforcement must apply the law with restraint and the judicial system must act more rigorously when handling these cases. The loss of a home is a life-changing event for those on the end of a forfeiture claim.
In Pennsylvania, as elsewhere, the home is an especially significant type of property. The loss of one’s home, regardless of its monetary value, not only impacts the owner, but may impact other family members, and one’s livelihood. Indeed, the home is where one expects the greatest freedom from governmental intrusion; it not only occupies a special place in our law, but the most exacting process is demanded before the government may seize it.
It goes on to point out the trial court failed to examine this as thoroughly as it should have, especially given the impact it would have on the elderly owner — and it gave far too much credence to the government’s arguments.
As noted by the Commonwealth [appeals court], various parts of the record were not considered, or at least addressed, by the trial court. Specifically, the court did not address Appellee’s past dealings with her son when she discovered drug usage; her contention that she did not see any drugs in her home or van; her explanation that she only allowed her son to return home due to her belief that he had stopped using illegal drugs; her assertions that, if she had found drugs in her home, she would have evicted her son; that no neighbors or the block captain reported knowledge of drug dealing from the home or problems with Appellee’s son; that she requested from police some proof that her son was selling drugs, but that no proof was ever proffered; and the failure of the police to arrest her son after executing a search warrant on the home in November 2009. All of these circumstances should have been accounted for and considered by the trial court in rendering its decision. Furthermore, the prospect of evicting Appellee’s son needed to be contemplated in the context of an elderly widow with serious health challenges who relied upon her son for living assistance. The trial court should have considered what was reasonable under these circumstances.
This isn’t a reform effort or a drastic rereading of the state’s forfeiture statutes. It’s a warning from the state’s highest courts that lower courts are no longer welcome to turn in cursory reviews of forfeiture claims. As it points out in a footnote, it’s not setting new precedent: it’s just letting everyone know the law will be interpreted far more precisely than it has been.
In requiring such review, we are not upsetting the statutory burdens of proof found in the Forfeiture Act as asserted by the Commonwealth. Rather, we are mandating compliance with that statute and our case law, and ensuring that innocent property owners are not dispossessed of what may be essential possessions — even though not convicted of or even charged with a crime — without rigorous scrutiny by the courts.
This is the way it always should have been. It’s just taken until 2017 to hit critical mass in the Pennsylvania court system.