Lawmakers, advocacy groups pushing for civil asset forfeiture reform

1/17/2015

By Andrew Staub | PA Independent

HARRISBURG, Pa. — Lawmakers and advocacy groups are calling for changes to the civil asset forfeiture system to ensure the tenant of innocent until proven guilty applies when taking people’s property.

State Sen. Mike Folmer, a Republican from Lebanon County, is sponsoring legislation that says property owners would have to be found guilty of a crime before prosecutors could take their money, conveyances or real property.

“If these guys are using their properties to do illegal activity and they’re convicted of that, rock and roll, seize it,” Folmer said. “That’s not the problem. The problem is due process actually being done.”

The American Civil Liberties Union of Pennsylvania and the libertarian Institute for Justice supports the legislation, also sponsored by state Sen. Anthony Williams, D-Philadelphia.

FORFEITURE HORROR STORY: Chris Sourovelis and his family faced the prospect of losing their home through civil asset forfeiture.

Both organizations take issue with current law allowing prosecutors to seek forfeiture of property that might be connected to a crime, even if somebody other than the property owner committed the crime and regardless of whether a property owner is convicted of wrongdoing.

Cash, vehicles and even homes can be stripped away if law enforcement suspects they were used in a crime or were proceeds from an illegal activity, such as a car bought with drug money.

In one high-profile case from Philadelphia, Chris Sourovelis’ family faced the prospect of losing their home after police found heroin in their son’s room. The parents were unaware of their son’s drug habits. The city eventually dropped the case, though a class-action civil lawsuit is ongoing.

Property owners can raise an “innocent owners” defense,  but because they aren’t entitled to a lawyer in civil cases most people don’t even know about it or how to use it, said Scott Kelly, an ACLU of Pennsylvania attorney who is working on forfeiture issues. Most cases in Philadelphia end up in default, he said.

Folmer and Williams’ legislation, plus another proposed bill in the state House, places a bigger onus on law enforcement. The intent is protecting constitutional rights, said Folmer, who noted he doesn’t have a problem with convicted criminals losing property involved with illegal activity.

But prosecutors already object to the idea, saying civil asset forfeiture is an important tool in the fight against the illegal drug trade, and a process is in place that keeps law enforcement from automatically seizing property.

George Mosee, a deputy district attorney in Philadelphia who worked in the narcotics division when most of today’s civil asset forfeiture policies were established, argued the legislation would be impractical.

It can take a long time to prosecute a case to completion, and waiting to take property out of the hands of criminals using it for illegal purposes “would completely water down the effectiveness of forfeiture practices,” Mosee said.

“What forfeiture always did is it stopped the activity, and frankly that’s the primary purpose of seizing property,” he said.

In the instance of the Sourovelis family, he said, it was never prosecutors’ intent “to fight that tooth and nail.” Instead, law enforcement used forfeiture as leverage to ensure problems didn’t arise and then said the family could have its property back.

Dauphin County District Attorney Ed Marsico, a member of the executive committee of the Pennsylvania District Attorneys Association, said despite some “troubling cases” thousands of forfeiture proceedings occur each year without incident.

Plus, Marsico said, proceeds from forfeiture pay for important work, such as overtime for officers working drug investigations,  money for undercover officers and vehicles for investigations.

“If we didn’t have those funds, taxpayers would be hit up heavily, and efforts to stem the tide of drugs like illegal heroin and other drugs, those efforts would really suffer,” Marsico said.

But critics of civil asset forfeiture believe it’s a conflict of interest for law enforcement to use the process to fund itself.

In a memo seeking support for their legislation, Folmer and Williams’ pointed out that more than half of the nearly $17 million that Philadelphia raked in through forfeiture from 2007 to 2010 went toward salaries.

Lee McGrath, legislative counsel at the Institute for Justice — which is bringing the case against the Philadelphia Police Department and the city’s District Attorney’s Office — said state lawmakers and local elected officials have “abdicated” their responsibility to allocate funding and turned that duty over to law enforcement via civil asset forfeiture.

“It’s like giving the police their own taxing power,” McGrath said.

McGrath thinks the proposed legislation would help stop that and make prosecutors act more carefully when it comes to taking somebody’s property.

“We’re saying if you want to fight criminals, make sure they’re criminals,” Kelly said.

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