Policing for Profit Still Growing Nationwide
Last week, the Philadelphia District Attorney’s Office agreed to pay out $3 million to people who had property unfairly seized or never returned. City prosecutors governed most seizure proceedings independently, without a judge, jury, or even a court reporter present.
The Institute for Justice filed the federal lawsuit four years ago when it was discovered that over the course of a decade, city law enforcement agencies seized 1,200 homes, 3,500 vehicles, and more than $50 million in cash – the proceeds of which were often used to fund their own offices. In no exaggerated terms, Philadelphia literally permitted police and prosecutors to profit off innocent residents and property owners.
“For too long, Philadelphia treated its citizens like ATMs,” said Darpana Sheth, a senior attorney at the Arlington, Va.-based Institute for Justice, which filed the lawsuit, in a statement.
Critics of civil asset forfeiture labeled the city of Philadelphia as one of the nation’s most egregious examples of government-sanctioned theft.
Proponents defend the use of state asset forfeiture laws as an effective tool for law enforcement and dispute the frequency of its use and abuse. According to a study by the Institute for Justice, 85 percent of forfeiture cases evade due process using “seize and seal” orders, which allow authorities to seize upon or shortly after an arrest.
Philadelphia’s legal settlement and policy reform comes amid recent calls from some lawmakers nationwide to overhaul forfeiture laws, a lucrative practice that happens in every state in the union.
Nearly twenty states including Alaska, Connecticut, North Dakota, and Texas have sponsored legislation to curtail the powers of police to seize assets. But states legislators do not move in step with local authorities, and federal agencies work with or against states to exacerbate civil asset forfeiture abuse. For example, the Justice Department (since 2017) has sought to reinstate police seizure powers that simultaneously raise funding for federal agencies and local law enforcement.
Even states that pass significant legislation are often powerless to stop local authorities, who can still seize property by partnering with federal law enforcement officials in a practice called “equitable sharing.” Equitable sharing allows local law enforcement to circumvent state law and continue to pocket a portion of the proceeds – “equitable sharing” payouts to state and local agencies have increased nearly 250% over a 12-month period.
The core problem is the perverse financial incentive the police and District Attorneys have in civil forfeiture cases. In 1986, the Department of Justice’s Asset Forfeiture Fund took in $93.7 million; in 2008, it took in $1 billion.
The Fourth Amendment guarantees citizens freedom from unreasonable search and seizure, so a policy by which government officials to confiscate your property even if you have not been convicted of a crime., or even charged with a crime sounds literally unconstitutional. Though in recent years the Supreme Court has all but doubled down on civil asset forfeiture, enabling its continuation.
In Kentucky v. King – the Court permitted the arrest of a citizen for drug paraphernalia, even though police illegally and forcibly entered his home. Conservative Justice Sam Alito wrote for the 8-1 majority an effective, ‘So What?’
The Court declined to hear a disturbing case altogether last year when Lisa Olivia of Texas alleged that her due process rights were violated. The police seized over $200,000 in cash from her despite the fact she had not been convicted of any underlying crime associated with the money.
Following Olivia’s denial, there was debate about whether property seizures violated double jeopardy – in question, whether property seizure is considered a fine, or punishment in a legal sense. Surely Olivia would think it was both – but alas, the Court ruled in United States v. Bajakajian, that a civil forfeiture was not intended as a punishment of a person, and thereby does not violate constitutional double jeopardy rights. The nonsensical distinction between a person’s assets and their person, is fuel for civil asset forfeiture proponents.
The burden of proof is shifted to victims to prove innocence.
The Court has upheld time and time again that the federal government is not bound to adhere to the same laws it enforces, to parallel the standard of justice in both civil and criminal matters. Because it benefits the state in civil court, private citizens are to be presumed guilty until proven otherwise. As a result, innocent property owners may be treated worse than guilty criminals better in our justice system, as at least criminals are given the presumption of innocence, and have a right to an attorney.
Civil Asset Forfeiture contradicts amendment practices contradict our understanding of the fourth amendment and a fundamental American principle – that citizens are innocent until proven guilty. A plain understanding of the Fourth Amendment at minimum grants that:
- No property should be seized disproportionally to an alleged crime. (City police and prosecutors should be from seizing houses, cars, and other valuable property when investigating small-dollar drug possession crimes (amounts less than $1,000).
- Cash should not be seized when not labeled as evidence for an alleged crime.
- Defendants should have a right to timely hearings to challenge the seizure of their property, and judges should always be involved.
Without a clear ruling from our highest court, civil forfeiture laws will continue to violate property rights. The Supreme Court will tackle the issue again in Timbs v. Indiana, scheduled for oral argument next year. Where the chips will fall largely depends on the fate of Judge Brett Kavanaugh, currently testifying against a high school classmate who accused him of attempted rape.