What the DOJ Revival of Civil Forfeiture Laws Means for Pennsylvania

The practice of civil forfeiture practice has sparked controversy nationwide due to a series of documented abuses, and such policies have led to important legal battles and legislative changes here in Pennsylvania. This past summer, however, Attorney General Jeff Sessions called for a reinstatement of an old civil asset forfeiture policy. Under the DOJ’s new agenda, the future of local civil forfeiture is anything but certain.
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To thoroughly consider the local implications of such policy change, it is important to first examine the state of civil forfeiture rules today. Civil forfeiture is the practice of governments seizing the property and assets of individuals suspected of or associated with criminal activity. In such proceedings, the property is actually what is charged. [1. Snead, Jason.”Civil Asset Forfeiture: 7 Things You Should Know.” The Heritage Foundation. March 26, 2014. Accessed October 3, 2017.
http://www.heritage.org/research/reports/2014/03/civil-asset-forfeiture-7-things-you-should-know] Theoretically, the concept of taking the spoils of illegal activity to inhibit lawbreakers from further operation makes perfect sense. Another rationale for civil forfeiture was the idea that the confiscated goods could then be used to obstruct other criminal enterprises. [2. “History of Asset Forfeiture.” State of Hawaii Criminal Justice Division. Accessed October 3, 2017.
http://ag.hawaii.gov/cjd/asset-forfeiture-unit/history-of-asset-forfeiture/]

Unfortunately, these policies became vessels for government encroachment and property rights violations. Not only does this practice not require a criminal indictment, but there is also a strong incentive for underfunded departments and agencies to seize assets to offset fiscal deficiencies. [3. Stillman, Sarah. “Taken.” The New Yorker. August 12 & 19, 2013 Issue. Accessed October 3, 2017. https://www.newyorker.com/magazine/2013/08/12/taken] Furthermore, civil forfeiture tends to disproportionately affect marginalized populations. In March, the Supreme Court of the United States declined to hear Leonard v. Texas, a case in which police officers seized over $200,000 from a couple whom they suspected of wrongdoing. In the denial of certiorari (a court issue to hear/review a case), Justice Clarence Thomas opined that forfeiture operations seem to target the most vulnerable groups in society who moreover tend to use forms of payment that are more susceptible to forfeiture (i.e. cash rather than credit). [4. Thomas, Clarence. “Lisa Olivia Leonard v. Texas: On Petition for Writ of Certiorari to the Court of Appeals of Texas, Ninth District.” March 6, 2017. Accessed October 3, 2017.http://www.scotusblog.com/wp-content/uploads/2017/03/16-122-respecting-cert-denial.pdf]

Aware of the commonplace exploitation of civil forfeiture law, the Pennsylvania government has made commendable efforts to heighten the standards for seizure. Senate Bill 8, which was subsequently signed into law by Governor Wolf, raises the burden of proof for seizure and allows individuals a chance to hold onto their seized property during criminal cases. [5. Thompson, Charles. “Bill tightening rules for civil asset forfeiture in Pennsylvania goes to Gov. Wolf’s desk.” PennLive. June 21, 2017. Accessed October 3, 2017. http://www.pennlive.com/news/2017/06/bill_tightening_rules_for_civi.html] This development, coupled with a recent Pennsylvania Supreme Court ruling that property can only be seized from an owner if they consented to its illegal use, further demonstrates Pennsylvania’s commitment to limit forfeiture abuse.
[6. Mondics, Chris. “Pa. Supreme Court makes it harder for the D.A. to seize your home.” The Inquirer. May 26, 2017. Accessed October 3, 2017. http://www.philly.com/philly/business/law/pa-supreme-court-makes-it-harder-for-the-d-a-to-seize-your-home-20170526.html]

However, such advancements in forfeiture protection could potentially be undermined by Attorney General Jeff Sessions’ proposed policy change. Specifically, he aims to reinstate the Justice Department’s Equitable Sharing Program, which gives local and state police forces the power to directly transfer the objects of their seizures to the federal government. Consequently, this permits local police forces to evade state forfeiture regulations. The federal government then returns a substantial amount of the original profit to the state. [7. Ford, Matt. “The Bipartisan Opposition to Sessions’ New Civil Forfeiture Rules.” The Atlantic. July 19, 2017. Accessed October 3, 2017.
https://www.theatlantic.com/politics/archive/2017/07/sessions-forfeiture-justice-department-civil/534168/]

To an extent, this program can essentially nullify whatever legislative efforts a state like Pennsylvania may make to restrict the misuse of civil forfeiture programs. The question then becomes one of implementation rather than of legislation. The ability of police forces to circumvent local regulations can only be checked by active efforts on behalf of state actors who have the capacity to restrict them. The future of civil forfeiture in Pennsylvania will probably lie more in the hands of the Attorney General or District Attorneys rather than the state legislature. Thus, if the individuals in such positions are as determined as the legislature to bring an end to forfeiture abuse, then its end in Pennsylvania looks promising.

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

This article was originally published on the Penn Undergraduate Law Journal.

Author: Cary Holley

Cary Holley is a freshman at the University of Pennsylvania studying Political Science.

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