Attorney General Jeff Sessions made a stink last week when he announced he was revamping policies that allow federal law enforcement officials to seize property from suspects—even if those suspects haven’t been charged or convicted of a crime. These policies have been heavily scrutinized by liberals and conservatives in recent years given that the funds from these seizures have been used and abused to pad the coffers of law enforcement agencies for decades. No less a pro-policing outlet than the National Review even called asset forfeiture a “constitutionally questionable practice,” that Sessions should
reconsider. Which helps explain why on the same week of Sessions’s announcement, the city of Philadelphia announced it was moving in the opposite direction of the Attorney General on this matter. The state of Pennsylvania is not far behind it. Not only that but nearly half of the states in the U.S. have also been passing laws to curb asset forfeiture policies. For Philadelphia, its new direction on this is mostly the result of a multi-tiered lawsuit the Institute of Justice filed over the city’s civil forfeiture program— one of the worst such programs in the country until new reforms started rolling in a few years ago. Pennsylvania is one of the dozens of states that allows local law enforcement agencies to keep 100 percent of the proceeds from assets seized from criminal suspects, even if they haven’t been found guilty of a crime. Philadelphia police and district attorneys have collected tens of millions of dollars from these seizures to pay for their own salaries, overtime pay, weapons, and other equipment.
“By giving police and prosecutors a direct financial stake in the outcome of forfeiture proceedings, this practice creates an impermissible conflict of interest that denies property owners a fair and impartial administration of justice as required by due process,” says Darpana M. Sheth, a senior attorney for the Institute for Justice. Meanwhile, much of the property seized—houses, cars, bank funds, and cash—comes from people of low income. People have been evicted from their homes simply because a police officer or prosecutor had a hunch that the house was used for illegal activity, and there was little recourse available once the house was seized. (Read reporter Isaiah Thompson’s excellent reporting on this for more background.) The Institute for Justice filed a complaint against the city in August of 2014 to stop law enforcement officials from taking people’s homes without giving them notice or a chance to appeal to a judge. Since that complaint was filed, the city and the state have scaled back civil forfeiture actions considerably. For one, the city agreed in 2015 that it would no longer take people’s homes without notice or giving them due process. Two years later, the Pennsylvania Supreme Court ruled that district attorneys would need to satisfy a larger burden of proof that a car or house was being used for criminal activity before attempting to seize those properties. This past June, Pennsylvania Governor Tom Wolf signed a law that provides even more protections for people subjected to civil asset forfeiture. The new law not only codifies the aforementioned new reforms, it also gives people the right to claim their seized property back if they can demonstrate to a judge that living without it would be too much of a hardship. Civil asset forfeiture remains a problem, however. For one, it’s still legit for cops to take your property if they suspect it’s tied to a crime, and the victims of those takings still have no right to a lawyer to get it back. Moreover, the profit incentive for law enforcement officials to pursue seizing people’s assets remains. As Institute for Justice attorney Milad Emam wrote in an op-ed last week: Property owners can still lose their property without being convicted of — or even charged with — a crime. Worse still, Pennsylvania law enforcement, including in Philadelphia, can use 100 percent of forfeiture proceeds to pad their budgets and salaries. This direct and powerful financial incentive has lured law enforcement away from the impartial pursuit of justice.
That loophole looks like it’s coming to a close, though, at least in Philadelphia, given that the city has filed a permanent injunction against itself to prohibit police and prosecutors from using seized assets funds for law enforcement-related expenses—a “highly unusual” step, says the Institute for Justice’s senior attorney Sheth. Instead, the city is proposing that funds from seized assets be used for drug rehabilitation programs or to fight blight. Sheth says that would be acceptable, but that the city still needs to declare that the very act of using seized assets to cover law enforcement expenses is unconstitutional, which the city is so far unwilling to do. Admitting as much would subject it to numerous additional lawsuits from people who’ve been harmed in the past seeking damages. Either way, there’s little chance that the city will continue to seize property for its own law enforcement activity’s sake. Larry Krasner, the civil rights attorney who recently won the Democratic primary to become Philadelphia’s next District Attorney, is dead against it. He opposes it even though those kinds of funds accounted for as much as a fifth of the district attorney’s office budget between 2002 and 2013. In fact, he says that he will not seize people’s properties at all unless they’ve actually been convicted of a crime. “[Civil asset forfeiture] is just one more way the criminal justice system steps on the necks of the poor and criminalizes poverty,” says Krasner. “They have a right to counsel when charged with a crime, but they don't have any rights to protect what might be the only asset they have, like a home or a car. So, what has happened is local prosecution has been able to take property from poor people simply because poor people don't have the ability to get lawyers.” It’s a brave stance for a city like Philadelphia where draconian law enforcement stances have led to some of the highest incarceration rates of any city in the U.S. And it stands in stark contrast to the position of the Attorney General. In issuing new guidelines for federal asset forfeiture policies, Sessions said that they were a “key tool” for law enforcement because they take “the material support of the criminals and instead makes it the material support of law enforcement, funding priorities like new vehicles, bulletproof vests, opioid overdose reversal kits, and better training.” In those guidelines, Sessions added extra steps for federal prosecutors to take before attempting to seize properties suspected to be associated with a crime. The new order won’t have a tremendous impact on local and state asset forfeiture policies—which is where the bulk of property seizures happen anyway. However, the new guidelines do make “another tool available” for local authorities attempting to seize someone’s assets.
For the federal equitable sharing program—a program that former Attorney General Eric Holder once tried to discontinue—local police can choose to forfeit seized assets to the U.S. Justice Department, rather than report them to the state. The Justice Department can then redistributes as much as 80 percent of the proceeds from those seized properties back to local law enforcement agencies, almost like a laundering scheme. (If ever there was a case for defunding the police, this would be the pot to pick.) Pennsylvania law enforcement agencies received nearly $105 million in equitable sharing funds between 2002 and 2013. Philadelphia took in almost $1.4 million from this program in 2014 alone. But the rules are a bit tight in terms of how city law enforcement agencies can subscribe to these proceeds. The federal government can simply “adopt,” or seize a local agency’s seized properties if connected to a federal crime, but for the most part, local law enforcement agencies must access federal equitable sharing funds by partnering with the Justice Department via a joint task force or investigation. Philadelphia officials could technically try to take advantage of such partnerships through the new federal tools Sessions has made available, but the likelihood seems low. The city is still embroiled in pending lawsuits to halt these practices altogether—not to mention, the city is filing injunctions against itself to curb these practices. Also, Krasner says the Justice Department “doesn’t have enough boots on the ground” to encourage continuing asset forfeiture in Philadelphia. “Frankly, I think most of the nonsense that comes out of Jeff Sessions’ mouth is really irrelevant,” says Krasner. “The biggest problem we have [to solve] is that the system should not be incentivized by having money go to law enforcement because that eliminates any objectivity or fairness when they know they can take money for themselves.”