Through Pennsylvania’s civil forfeiture law, property owners can lose cash, cars and homes, even if they are never convicted or even criminally charged. To better protect property owners, Sen. Mike Folmer is sponsoring legislation to enact two important, albeit limited, reforms.
Today, if police suspect property is tied to a crime, the government only has to prove it by a “preponderance of the evidence.” Meanwhile, owners must prove they did not know about or consent to any unlawful use of their property. In other words, Pennsylvanians are guilty until proven innocent.
If SB 869 is enacted, it will raise the standard of proof to “clear and convincing evidence” and shift the burden of proof from property owners to the government—where it belongs. Both changes would better protect an owner’s right to a fair process.
Last month, the bill passed the Pennsylvania Senate by 42 to 8.
Now, in the House, representatives should amend the bill to address a glaring shortcoming—the lack of public accountability. Currently, counties must report annually “all forfeited property and proceeds obtained.” SB 869 would oblige counties to report whether a forfeiture case “was related to a criminal case” and the “alleged criminal behavior” associated with the property.
But SB 869 desperately needs even greater transparency requirements. Even if the bill becomes law, it will not require reports to identify seized and forfeited assets, detail whether a seizure was challenged, record whether a suspect was convicted, or describe how property was disposed of (e.g. returned to an owner, sold, destroyed or retained by police). Reporting such details would shine a light on this source of secretive government funding.
Moreover, current reports are accessible only under the Commonwealth’s time-consuming Right-to-Know Law, and the attorney general can make documents inaccessible to open records requests.
This means lawmakers are not getting vital information. In coming years, they must revisit whether a person acquitted of a crime should forfeit property and whether law enforcement should continue to fund operations using forfeiture proceeds. Policy debates must be based on facts—not conjecture. The best fix is to adopt a central tracking system and public website and to require agencies to post all seizures, forfeitures and uses of proceeds.
Without future reforms, forfeiture will continue to tarnish law enforcement’s reputation. In an infamous case, Philadelphia law enforcement seized Chris and Markela Sourovelis’ home because their son had sold $40 worth of drugs. Represented by the Institute for Justice, the Sourovelises became lead plaintiffs in a class action lawsuit. Fortunately, the city dropped the forfeiture case and reached a partial settlement.
But the lawsuit’s most significant claim remains. Police and prosecutors have a powerful and perverse incentive to pursue forfeiture. They keep up to 100 percent of proceeds. According to IJ’s research, from 2000 to 2013, Pennsylvania law enforcement collected more than $150 million or almost $11 million annually from forfeiture.
Meanwhile, another forfeiture that targeted a grandmother in Philadelphia is pending before Pennsylvania’s Supreme Court. After police caught Elizabeth Young’s son selling $90 worth of cannabis, they seized her house and minivan. Young was never charged with a crime. If SB 869 had been law, she likely would not have had to go through the litigation ordeal.
A bipartisan reform movement is growing nationally. In the past two years alone, 18 states and Washington, D.C., have reformed civil forfeiture laws. In fact, New Mexico and Nebraska abolished the practice entirely and the platforms of both the Democratic Party and Republican Party endorse overhauling civil forfeiture.
The debate over civil forfeiture will continue to rage in the coming years. That is all the more reason why the Commonwealth needs robust reporting on how law enforcement uses and benefits from forfeiture.