Drug Money: How Civil Asset Forfeiture Works and Why You Should Be Worried About it.
By Casey Slater, Staff Writer
Generally, in Pennsylvania, any money “furnished or intended to be furnished by any person in exchange for a controlled substance,” or “used or intended to be used to facilitate any violation of the Controlled Substance, Drug, Device and Cosmetic Act” is subject to forfeiture to the Commonwealth. 42 Pa. Cons. Stat. Ann. § 6801(a)(6)(i)(A)-(B) (West 2015). In addition, any such money “found in close proximity to controlled substances” are presumed to be drug money. §6801(a)(6)(ii). This seizure of property is commonly referred to as Civil Asset Forfeiture (“CAF”) and is based on the legal fiction that property, including cash, can be guilty, regardless of the actual wrongdoing by its owner. United States v. Bajakajian, 524 U.S. 321, 330 (1998).
In theory, the age-old legal fiction imposing guilt on property could be useful for law enforcement in pursuit of cartels and kingpins. It may even seem just that when a drug-pushing gangster is convicted, the millions in profit he earned from his crimes be convicted too. But don’t let your Robin Hood fantasies fool you—the piles of cash that were once sitting in some drug dealers’ basement in Philadelphia aren’t forfeited to a general fund for public benefit. No, in fact these funds—usually small sums found in the pockets of innocent people—are statutorily directed to go straight to law enforcement authorities and the Attorney General. 42 Pa. Cons. Stat. Ann. § 6801(g) (West 2015) (“If both municipal and State law enforcement authorities were substantially involved in effecting the seizure, the court having jurisdiction over the forfeiture proceedings shall equitably distribute the property between the district attorney and the Attorney General.”).
It is on this stage that the practice of CAF results in as many incidents of abuse as it does legitimate seizures of ‘drug money’, (if not more). This June, the American Civil Liberties Union of Pennsylvania (ACLU-PA) published a report summarizing a study from an ongoing investigation of CAF in Pennsylvania where in 2012 alone, authorities generated $13.8 million. ACLU-PA, Guilty Property: How Law Enforcement Takes $1 Million in Cash from Innocent Philadelphians Every Year—and Gets Away with it. (June 2015) available at http://www.aclupa.org/files/3214/3326/0426/Guilty_Property_Report_-_FINAL.pdf
The June report focuses primarily on Pennsylvania’s most populous city, where the ACLU-PA estimates that over “$1 million is forfeited every year from innocent Philadelphians.” Id. at 4. In Philadelphia, the DA’s office succeeded in 96% of all forfeiture cases, which included at least $4 million in cash each year. Id. at 5. Of these cash forfeitures, only about 32% of them are supported by a conviction of the property owner. Id. at 4. Where there was a conviction of drug possession, the DA succeeded in all of the forfeiture cases, although logic would follow that not all cash is ‘drug money’. Id. at 10.
In addition to the staggering numbers, there is vast racial disparity among the forfeitures. Id. In Philadelphia, where only 44% of the general population is African-American, 63% of the owners subject to forfeiture were African-American. Id. Of innocent owners with cash subject to forfeiture, 71% were African-American. Id.
What went wrong? “[U]nfairness exists at every state of forfeiture proceedings, from the inadequacy of initial notice to the complexity and length of cases to the prohibitive cost of reaching a final hearing before a judge.” Id. at 4. The ACLU-PA points to several factors that may be involved with the troubling climate of civil asset forfeiture: (1) inadequacy of initial notice; (2) expense and effort required to dispute a forfeiture; (3) the revenue stream forfeitures create for law enforcement with no political oversight. Id. at 4, 11.
During their study, the ACLU-PA found that only 66% of property owners were given proper notice of the DA’s forfeiture petitions. Id. at 6. Of the 66% that received proper notice, a significant amount of property owners found that the burden of the forfeiture proceedings—which require an average of four appearances before a judge—was not worth the cash amount confiscated. Id. According to the report, almost 100% of the forfeiture cases involving less than $201 were won by the DA’s office by default. Id. at 7. With nearly 3,000 cases per year involving less than $201 per confiscation, law enforcement officials can create over half a million dollars in easy revenue. Id.
What can be done? The ACLU-PA suggests that “sensible reform wouldn’t eliminate forfeiture as a crime-fighting tool,” and that reform should focus on shifting from civil forfeiture to criminal forfeiture. Id. at 11. Criminal Asset Forfeiture would be tied to the underlying criminal case and be implemented “only after the property owner is convicted.” Id. In addition, meaningful reform should channel the proceeds into some type of general fund, instead of directly to law enforcement. Id.
Until such reform takes hold on a national scale, my advice is this: If you’re going to be in possession of a controlled substance, keep your life savings as far away from it as possible. The police can seize it, and they will, regardless of its connection (if any) to your poison of choice, because to them, it’s always ‘Drug Money.’
