What Seth Williams Didn’t Say About Civil Forfeiture
There’s probably a good case to be made for the civil forfeiture system — in which authorities seize money and property they believe has been used in drug crimes and use it for their own purposes — but District Attorney Seth Williams didn’t quite make it Sunday with his op-ed in the Inquirer.
Drugs are bad, he said, and, well, fine. Tools that disrupt drug trafficking are good, he said. And that sounds great. Williams did a fine job of describing why forfeiture is a good tool when used ideally.
The problem? There is a lot of evidence that real-life forfeitures in Philadelphia fall short of the ideal. That evidence has been collected and detailed with great care by Philly journalist Isaiah Thompson during his stints for City Paper, Axis Philly, and Pro Publica — particularly in his 2012 City Paper article, “The Cash Machine,” — and pursued in lawsuits by the Institute of Justice.
“There is nothing elsewhere in Pennsylvania that remotely compares to how the Philadelphia DA has seized people’s houses from them,” Thompson told me this week when I asked about Williams’ op-ed. “As far as I can tell in my reporting, there’s nothing in the country resembling that.”
To understand the problem, it’s instructive to read what Williams wrote on Sunday, and then compare it to what’s been reported about the program.
Williams: The system is designed to deprive drug dealers of resources and profits. “Pennsylvania’s asset-forfeiture laws, which turn property used in drug deals into funding for law enforcement, are designed to make Philadelphians safer and to make it harder for drug dealers to do their illegal work.”
The real critique: The system in Philadelphia may be targeted mostly at criminals, but it has a history of taking money and property with little regard for whether a crime can be proven. Thompson wrote in 2012: “What you might not know is that that money is likely destined to become not just evidence but revenue for the Police Department and the District Attorney’s Office prosecuting the case — long before those alleged drug dealers are ever proven guilty or innocent in court, and often regardless of the outcome of any criminal proceedings.” Emphasis added.
Williams: The system collects lots of cash, but “real” property like houses and cars relatively infrequently: “In fact, about 80 percent of what we collected in 2014 through the forfeiture process was cash, and that’s generally cash seized directly from drug dealers. It’s the lifeblood of their illegal, soul-destroying business.”
The real critique: We’ll agree that prosecutors mostly collect cash from suspected drug dealers. But there’s still a lot of property flowing through the system. Per the Institute of Justice: “From 2002 through 2012, Philadelphia seized and forfeited 1,172 homes and other real properties, 3,290 automobiles and other vehicles and over $44 million in cash.” That’s not a problem if you think the process is working fairly. If, on the other hand, you think a mom shouldn’t lose her house because her son sold and possessed $180 worth of weed, or a family shouldn’t lose its house over charges filed by rogue cops, you might still be troubled.
Williams: Seizures don’t happen without due process. “District attorneys don’t get to just take stuff; we have to prove that the property was used in drug dealing. We file petitions, go to court, and either have a hearing or reach a settlement — just like any other legal proceeding, criminal or civil.”
The real critique: The process is weighted against property owners in several ways.
The first is that prosecutors don’t actually have to try that hard to prove a criminal connection in order to seize the money. Thompson’s original article noted: “The burden of ‘preponderance of evidence,’ unlike that of proof beyond a reasonable doubt, means that the DA doesn’t have to present an airtight case — just one that strikes a judge (or, in rare cases, a jury) as even slightly more believable than that of the respondent.”
That’s when a defendant actually tries to challenge a forfeiture. Eighty-three percent of forfeiture cases are never contested, Thompson reported, and while some of that might be due to the strength of the prosecution’s case, there are other factors. In 22 cases he analyzed, only half showed that the property owner had received notification of the legal proceedings. A separate analysis showed that property owners who did contest seizure had to come back to court an average of five times before the cases were completed — a punishing process that often makes it seem easier to just let money or property go.
Williams: It’s right that bad guys face civil as well as criminal penalties for drug dealing. “If you endanger your community by allowing your property to be used for drug dealing, you may find yourself in court. You may not get convicted of a crime or go to jail, but you still violated state civil law.”
The real critique: Philadelphia has been notoriously aggressive in its disregard for the outcome of a criminal case when making civil seizures. (In Philadelphia, unlike in some jurisdictions, the forfeiture procedure takes place in civil court, separate from criminal matters.) Thompson reported that an analysis of 300 forfeiture cases in Philadelphia found just 180 were linked to criminal adjudications of guilt — in the rest of the cases, charges had been withdrawn or noelle prossed (not pursued), or the defendant found not guilty. They still often lost their property, however. “Those numbers, if borne out over the thousands of cases the DA pursues every year, suggest that the Philadelphia District Attorney is successfully pursuing forfeiture cases worth hundreds of thousands of dollars, against as many as a thousand or more citizens who aren’t convicted of a crime,” Thompson wrote in 2012.
Williams: Besides, Philadelphia doesn’t use the forfeiture process overly much. “It’s a tool used far more extensively by the feds than by local officials. In 2012, the last year I’ve seen figures for, the Justice Department seized almost $9 billion worth of property in civil, non-criminal proceedings. That’s nine billion, with a B — or about 1,800 times more than the value of all the property seized that year in Philadelphia.”
The real critique: Comparing local efforts to federal efforts is like comparing apples to oranges. “Philadelphia’s forfeiture machine raked in over $64 million from 2002 to 2012. By contrast, during that same time all of Pennsylvania’s 66 other counties took in $84 million combined,” the Institute for Justice notes. “Although Philadelphia’s population is smaller than Brooklyn, New York and Los Angeles County, it brings in twice as much civil forfeiture revenue as these two combined.”
To be fair: Williams concluded by saying he has tightened rules for civil seizures by his office, and is talking to legislators about reforming the state law that allows this process. A spokesman for Williams said this week the DA isn’t ready to publicly discuss what reforms he would support — not wanting to “scoop” discussions with legislators. He also declined to discuss the rules that had already been tightened, citing pending litigation. He did say however, that forfeitures had dropped from $4.9 million in Fiscal Year 2013 to $3.4 million in Fiscal Year 2014.
Even if Williams is making improvements, his Inky op-ed ignored all the real, data-driven criticisms of the way his office uses forfeiture — that it is unusually aggressive, relatively unconcerned with questions of criminal guilt, and pursued using a process heavily weighted toward prosecutors. He’ll have to grapple with those questions, and resolve them, before he can make a better case for forfeiture.
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