Diary

How Reformers Want to Make It Harder for Law Enforcement to Keep Cash, Property They’ve Seized

PHILADELPHIA—In state capitals and courtrooms across the nation, lawmakers and lawyers are challenging a tool used by law enforcement to take property and cash from Americans who, in many cases, have not committed a crime.

But in no other city is the convergence of efforts more evident than Philadelphia, where attempts to reform “policing for profit” aren’t limited to the state capitol and federal courts. They’re occurring in the belly of the beast: the district attorney’s office in the City of Brotherly Love.

Here in Philadelphia, Andrew Jenemann, head of the district’s attorney’s Public Nuisance Task Force, is making changes to how “real property”—homes, warehouses, and businesses—moves through the forfeiture process.

Jenemann, an assistant district attorney, also spearheads adjustments to the process that property owners go through to prove their cash or cars are not connected to criminal activity. That process begins in the notorious Courtroom 478.

Law enforcement agencies across America have been the target of critics who argue police and prosecutors use civil asset forfeiture—a legal tool giving them the power to seize property and money suspected of being related to a crime—to pad their budgets.

But for the officers of the Philadelphia Police Department and the prosecutors in the Philadelphia District Attorney’s Office, the bulk of the criticism seems to be aimed at them.

“Why has there been so much scrutiny on our program?” Jenemann says in an interview with The Daily Signal. “I can’t tell you, honestly, why we have gotten that much scrutiny compared to any other city.”

The city seized more than $3.4 million in cash and property last year, according to a report from the Pennsylvania Attorney General’s Office. The total is more than any county in Pennsylvania and three times more than Montgomery County, which had the second-highest amount in proceeds.

By comparison, Allegheny County, which includes Pittsburgh, reported forfeiture proceeds of $730,168 in cash and property last year.

The law enforcement officials at the top in Philadelphia: District Attorney R. Seth Williams, a Democrat who assumed the elected office in January 2010, is a former assistant district attorney. Police Commissioner Charles H. Ramsey, former police chief of Washington, D.C., took over the Philadelphia force in 2008. He is set to retire in January.

As the city maneuvers through legal challenges and changes proposed at the state level, Jenemann concedes the system has flaws and recognizes change is both needed and coming.

“We have used forfeiture successfully as a tool for a long time. I think it’s used, for the most part, fairly,” he says. “As prosecutors, our objective is to take what we have to try and make it better and try to make it the system that people deserve going forward.”

Changes From the Courts

As opponents mount fights against the practice in statehouses in roughly a dozen states, organizations have challenged states’ civil asset forfeiture laws in at least three suits in federal courts.

In Arizona, the American Civil Liberties Union sued Pinal County’s top law enforcement officials on the grounds that the county’s use of asset forfeiture violates constitutionally protected rights.

Similarly, a District of Columbia class-action lawsuit by 22 property owners accuses the Metropolitan Police Department of improperly seizing vehicles and money, and failing to provide the property owners with timely notice to fight the seizures.

But perhaps the most well-known legal challenge comes from the Institute for Justice, a public interest law firm in Arlington, Va. In August 2014, the group filed a class-action lawsuit with the U.S. District Court for the Eastern District of Pennsylvania.

“Civil forfeiture is one of the greatest threats to property rights and due process in our nation today. And Philadelphia is just an example of what happens when it’s taken to its extreme,” Darpana Sheth, an Institute for Justice lawyer arguing the case, tells The Daily Signal.  Sheth adds:

In Philadelphia, you have this system of robo-forfeitures, which is just automatically done, that’s why we call it the forfeiture machine, and the system of kangaroo courts. And that is all the inevitable results of a system of policing for profit that is driving Philadelphia’s forfeiture machine.

The Institute for Justice sued after Philadelphia police seized a house belonging to Chris Sourovelis and his wife, Markela. Their son had been arrested for selling $40 worth of heroin outside their northeast Philadelphia home.

The couple, though, never was charged with a crime.

The Philadelphia Police Department could not comment on the case, but a spokeswoman said the department follows the laws on the books regarding civil forfeiture.

Now, Chris Sourovelis is one of four property owners challenging the constitutionality of Philadelphia’s civil forfeiture system.

“No other jurisdiction is evicting people out of their homes without giving them notice,” Sheth says. She adds:

The Supreme Court made very clear that you cannot seize a home or real property without giving notice and without giving an opportunity to be heard. The fact that they were flagrantly violating that—we couldn’t understand how it had been going on this long.

‘Seize and Seal’

In its suit, the Institute for Justice first pushed back against Philadelphia’s “seize and seal” policy. Under it, law enforcement seals a property seized under forfeiture laws while the case moves through the court system.

The organization says the policy has led to the eviction of innocent property owners who don’t have the chance to defend themselves before their houses are sealed.

“Seize and seal” orders were intended to be used sparingly and only in extreme circumstances, but the group found that nearly 85 percent of forfeiture cases involving houses in Philadelphia began with such orders.

The Institute for Justice argues that the orders violate the Constitution because property owners are kept from their homes for several weeks or months.

In a proposed settlement agreement between prosecutors and the legal group, the city agrees to dismiss any “seize and seal” orders currently in effect.

The Institute for Justice also challenged the process by which property owners try to get their property back. In forfeiture cases, those who fight the city for the return of cash, motor vehicles, and houses are asked to return multiple times to Courtroom 478—where forfeiture proceedings take place.

For many property owners, the process is too lengthy to be pursued by anyone but the most dedicated.

According to a study by the American Civil Liberties Union, a review of 16,000 forfeiture cases between 2011 and 2013 that didn’t involve real estate found that property owners appeared in court a median of four times before their cases were decided.

And for some, the reward may not be worth the effort.

The ACLU, examining a random sample of 351 cash forfeitures over the same period, found that half involved amounts under $192. Just 10 percent topped $1,000.

Such “procedural pitfalls,” the Institute for Justice argues in its suit, violate the right to due process. The group refers to a 2002 case, Krimstock v. Kelly, in which the U.S. Court of Appeals for the 2nd Circuit ruled that the government must provide a prompt hearing after law enforcement seizes property.

The Institute for Justice also argues that Philadephia law enforcement treats citizens “like ATMs.” It is a reference to what the group regards as a perverse profit incentive created by civil asset forfeiture: Pennsylvania law allows the proceeds to go into the coffers of police departments and district attorney’s offices that conduct the seizures.

The ACLU and Institute for Justice both found that the money is used to buy a vast array of items and also goes to paying officers’ and prosecutors’ salaries.

The Institute for Justice argues that such use of proceeds injects bias and self-interest into the decision-making process for prosecutors and police, since financial gain is to be had for city officials. Sheth says:

The heart of the lawsuit has always been the profit incentive, this direct conflict of interest that prosecutors and police have in seizing and forfeiting property. And that is something the city and the DA’s office has indicated they will never settle. It’s not a surprise there. It’s what’s driving and fueling the Philadelphia forfeiture machine—this $6 million slush fund that the City Council isn’t monitoring or accountable for. It’s just the [district attorney’s] office wants to spend it.

When property owners go to Courtroom 478 to prove their belongings are not tied to criminal activity, they appear only before prosecutors and a scheduler, who notifies them of when they need to return for the next hearing.

With no judge present, the Institute for Justice argues, a neutral party is not involved. And according to the lawsuit, lawyers representing the city can move for automatic forfeiture of cash, cars or houses if a property owner misses just one hearing.

The district attorney’s office asked that the case be dismissed, but in May a federal judge denied the request.

“Civil forfeiture is a problematic legal tool to begin with, but it’s been used in Philadelphia so aggressively,” Sheth said. “It’s created this sort of system where because of that direct profit incentive where 100 percent of the proceeds go directly back to the DA’s office … there’s a lack of any procedures.”

Changes From Within

As the federal court considers the case, the prosecutor who heads the civil asset forfeiture program is instituting changes from the inside.

Jenemann took over the Public Nuisance Task Force at the end of March. Although he doesn’t come from a background in forfeiture, he began making changes to the program just one week later.

“As a prosecutor’s office, our job is to ensure we’re providing justice and fairness to everyone we came into contact with,” Jenemann tells The Daily Signal. “When I looked at the processes, I wanted to make sure the right petitions are being filed, they are being filed with the right person, and the process works [in] the manner that everyone expects it to.”

Almost immediately, Jenemann changed how the office executes forfeitures on real property— including houses, businesses and warehouses—and specifically the process relating to property owners.

If the owner is the defendant named in a corresponding criminal case, then the office will move to forfeit the property. If not, the office will determine the owner’s level of involvement.

“Were they present during the search warrant? What extent are they involved? Are they a landlord or resident?” Jenemann says of the process for “weeding out” those who weren’t aware of what was occurring at their property.

if the property owner isn’t the defendant, the district attorney’s office won’t issue a forfeiture petition, Jenemann says. Instead, it will opt for a warning letter alerting the owner that illegal activity took place there.

In some cases, he says, illegal activity continues despite the warning. In those cases, what he said represents a “small category,” the city will file a forfeiture petition in court.

Jenemann said the district attorney’s office hasn’t yet had this happen. Instead, he cited an interaction prosecutors had with a landlord after his property was used three times for drug-dealing activity. The city spoke with the landlord and learned the property had been boarded up. Drug dealers, Jenemann said, were breaking in and selling drugs out of the home.

Because the landlord had acted swiftly to quell the illegal activity, the district attorney’s office opted not to forfeit the property.

In the months since Jenemann’s changes went into effect, his office has assigned nine new forfeiture cases. Four forfeiture petitions have been filed.

 Riding in a black pickup truck owned by the DA’s office—it previously belonged to a drug dealer —Jenemann tells The Daily Signal the new process has been well received and appears to be working.

“We’re trying very hard to establish a track record,” Jenemann says, “to establish that people either do or do not have knowledge of what’s going on with their properties.”

Jenemann also is working to reform the court aspect of the process and move to a “more traditionally recognized” courtroom.

Reforms governing the court proceedings went into effect Oct. 19 to limit the number of times property owners must appear in Courtroom 478, as well as the interactions between them and prosecutors. Such interactions took place after the district attorney’s office picked up some of the slack for the courts, Jenemann says.

Jenemann contends that negotiations are a “fundamental part” of civil proceedings, since they can lead to settlements and withdrawal of cases. However, he put an end to the counseling and explaining that assistant district attorneys often did with property owners. Instead, a trial commissioner guides them.

“We’re always trying to make things work better,” Jenemann says of the forfeiture process. “We work closely with opponents. This is one of those processes where the time has come.”

The “single biggest change,” the assistant district attorney says, addresses the Institute for Justice’s criticism of re-listing cases—or requiring a property owner to appear multiple times in Courtroom 478.

Under the new system, property owners who have a criminal case pending at the same time a forfeiture case moves through the courts will not have to return to Courtroom 478 for status hearings. The change, Jenemann says, keeps property owners from having to appear multiple times.

Instead, the forfeiture case is virtually frozen in the system—continued without a further listing, officially—until the criminal case is resolved.

Property owners can request that a forfeiture case move forward, Jenemann says, and such demands typically are made by those fighting to have their vehicles returned.

Many of the changes Jenemann oversees were made in response to Sheth and the Institute for Justice’s lawsuit. She is glad the city has begun to make the process more fair, Sheth says, but was surprised to see how “resolute and defensive” prosecutors were at first.

“It’s been a lot of delay, delay, delay,” she says. “It’s a relief to see the light with respect to at least some of these claims.”

Changes at the Statehouse

For state Sen. Anthony Williams, a Democrat representing Delaware and Philadelphia counties, the increasing number of incidents involving innocent property owners who had cash, cars and houses seized by the City of Brotherly Love was cause for alarm.

“Private citizens should not feel that their government would take away their rights and treat them as guilty … if they’re innocent, but even if they’re not properly charged or vetted,” Williams says in an interview with The Daily Signal. “You don’t want any American feeling that the government is working against them and taking what is theirs rightfully away from them without due process.”

Now, as Jenemann and the district attorney’s office consider more internal changes, legislation reforming Pennsylvania law on civil asset forfeiture is before the state legislature.

Sponsored by Williams and state Sen. Mike Folmer, a Republican representing Dauphin, Lebanon and York counties, the bill addresses many of the most controversial aspects of the process. Specifically, their bill would:

  • Require a criminal conviction before property can be forfeited.
  • Raise the burden of proof to “clear and convincing.”
  • Guarantee the right to counsel and to seek attorneys fees.
  • Redirect forfeiture revenues to the county or state general fund.

“It’s a very comprehensive, top-down reform of the forfeiture system,” Jason Snead, a policy analyst at The Heritage Foundation, says. “If you look down the list, it does everything that a good package should be considering.”

Legislative reforms have been lauded by groups opposed to forfeiture, but draw criticism from law enforcement agencies. They argue that such changes will impede their ability to curb drug trafficking and money laundering.

‘Get the Conviction First’

District attorneys across the state pushed back on his legislation, arguing that the revenue from forfeiture is important to fighting crime, Williams says.

However, speaking with The Daily Signal, Jenemann explains why it’s important for law enforcement to begin the forfeiture process before a conviction—a provision of the proposed legislation that has been criticized.

A drug dealer under surveillance by police may pass cash to another person, Jenemann says as an example. If a police officer stops the dealer but the person with the money goes in a different direction, he says, that person shouldn’t be allowed to keep it.

If a conviction is required before cash or property is forfeited, Jenemann says, some criminals won’t have to forfeit the profits from the crime:

The money is drug money. The person should be deprived of that. Forfeiture action gives us the opportunity to prove the money or house or car is related to the crime.

But Williams, the senator, says that requiring a conviction first puts the onus on the truly guilty—the property owners from whom law enforcement should seek revenue.

“The claim puts it in a category or space that, while you may have not been found guilty in court, we can still sort of weigh against you because our opinion is different,” Williams says, adding:

That’s not the standard we should be taking. That’s a standard you apply against O.J. Simpson. That’s not a standard you apply against O.J. Simpson’s grandmother.

Folmer, his Republican co-sponsor, stresses that under the proposal police still could seize money from those they believe are engaged in criminal activity.

“This doesn’t take away civil asset forfeiture,” Folmer tells The Daily Signal. “It just reforms it and brings it more in line with the Fifth and Sixth amendments [of] the U.S. Constitution and the Bill of Rights. We are innocent until proven guilty.

“If [forfeiture is] a good tool for law enforcement, great. Use it,” he says. “But get the conviction first. I don’t want to hurt [police] in doing their job. Their job is hard enough. I get it. But get the conviction first.”

Heritage’s Snead commends the legislation for getting back to original intent—to send a clear message to criminals that crime doesn’t pay.

“A good forfeiture package should return forfeiture to its original and narrow purpose, which is relieving drug kingpins and criminal organizations of their ill-gotten gains,” he says, adding:

It’s sort of the logic that if you cut off the snake’s head, the body dies. If you go after the biggest organizations where you know the money is ill-gotten gains of criminality, you stand a much bigger chance of deterring crime rather than this current system, which is stacked against property owners.