HARRISBURG, Pa. — Retired Maj. Neill Franklin oversaw more than a dozen drug task forces that used civil asset forfeiture laws to seize millions in property.
But by the late 1990s, even Franklin, who worked for the Maryland State Police, began to think something was wrong with the system.
Franklin was reviewing paperwork from a case on the Eastern Shore. Police had seized a man’s car, and it was suspected the car was used in drug deals. But the owner was never charged with a crime.
The man wanted the car back so he could get to work, and police agreed to return it — as long he paid storage and administrative fees of a couple hundred dollars, says Franklin. It cost nothing to park the car on a police lot.
“Basically, we held this guy’s car for ransom and then made money off of giving it back,” said Franklin, who is now fighting for national civil asset reform as executive director of Law Enforcement Against Prohibition, which opposes the War on Drugs.
Franklin visited the Pennsylvania state Capitol on Wednesday ― about 20 years after he first saw the problems with civil asset forfeiture ― and joined a diverse coalition calling on lawmakers here to reform the system.
While law enforcement officials argue civil asset forfeiture is a vital tool to strip drug dealers and other lawbreakers of the resources they use to commit crimes, the practice has come under increasing scrutiny across the country. Critics argue it’s an affront to the constitutional right to due process and that it’s used to pad law enforcement budgets.
Pennsylvania law allows police to seize cash, cars and even homes if they believe they’re connected to a crime. Prosecutors can file for the property’s forfeiture and obtain — even if the owner has never been charged or convicted of a crime.
Law agencies keep the proceeds, giving them a financial interest in using the law. In one case, a prosecutor in Pennsylvania doled out staff bonuses with the proceeds.
A Missouri police chief also once referred to forfeiture money as “pennies from heaven” that can be used to buy “a toy or something that you need.” Watchdog.org last month reported the Mississippi city of Richland funded its $4.1 million police station with forfeiture money.
The practice is problematic in Pennsylvania, too, said the state chapter of the American Civil Liberties Union. It released a report this week that found the Philadelphia District Attorney’s Office takes and keeps some 100 homes, 150 vehicles and about $4 million in cash each year.
Looking at cases from 2011 to 2013, the ACLU found almost a third of the instances of cash forfeiture involved money owned by people not convicted of a crime. More than half the time fewer than $200 in cash was at stake, meaning it made little sense for owners to hire an attorney or take off work to go to court to get it back.
Because civil asset forfeiture petitions are civil cases filed against the property itself, owners aren’t guaranteed an attorney, as they are in criminal cases. Molly Tack-Hooper, a staff attorney with the ACLU of Pennsylvania, called it a “fundamentally broken system,” though reform could be on the way.
State Sen. Mike Folmer, R-Lebanon, has proposed legislation that would require a conviction before property could be forfeited. It would require that proceeds of forfeiture go into a general government fund, versus funding budgets for police and prosecutors. A companion bill is expected in the state House.
Police could still seize property suspected of being used in a crime under Folmer’s law, ACLU lobbyist Andy Hoover said, but they would need a conviction to keep it.
Still, law enforcement agencies have vehemently argued against the reform, and the Philadelphia District Attorney’s Office responded tersely to the ACLU report in a statement.
“The district attorney’s office continues to improve and streamline its forfeiture program, especially when it comes to adding additional protections for property owners,” the statement read. “But, unlike the ACLU, we are not willing to ignore the true innocent parties here – the underprivileged residents of drug-plagued neighborhoods. They deserve the equal protection of the law and they are entitled to expect the justice system to shut down drug houses and take guns and cash out of the hands of criminals.”
Louis Rulli, a law professor at the University of Pennsylvania who supervises a legal clinic that has helped low-income people facing forfeiture proceedings, said the justice system sometimes takes more innocuous things — a child’s piggy bank, for instance.
Law officers took the bank while searching the home of a woman never charged with a crime, Rulli said. It took more than a year for attorneys to reclaim the piggy bank and the $91 inside, Rulli said.
“That’s why most people give up. That’s why this law needs to be reformed,” he said.
Another Pennsylvania horror story — the case of an older Philadelphia couple facing the loss of their home after their grown son was accused of selling marijuana from the porch — was included in an August story in The New Yorker.
Titled “Taken,” the article led to reform – just not in Pennsylvania. A Montana lawmaker, Democratic state Rep. Kelly McCarthy, read the article and introduced a bill requiring a conviction before property could be forfeited — police there once kept $16,000 seized from an out-of-state farmer who came to buy tractor parts.
Law enforcement howled over McCarthy’s bill, even though the legislation still allowed police to seize property suspected of being used in a crime. Montana Gov. Steve Bullock signed the bill anyway, and it will become law later this year.
“I’ve probably bought myself a lifetime of busted tail lights,” McCarthy said.
The Montana lawmaker looks at Pennsylvania and wonders whether the founding fathers who once called the Keystone State home envisioned a thing such as civil asset forfeiture.
“You think they sat around and thought, ‘Hey, one day these guys will be taking a toaster to court?” he said.
McCarthy hopes U.S. Sen. Rand Paul, a Republican presidential candidate, is successful in his ongoing quest to change the law, a push that also closes a loophole allowing states to use federal law to pursue forfeiture.
The federal government has already installed some limitations on civil forfeiture; New Mexico has joined Montana in reforming the practice.
Those actions have heartened Franklin, the former narcotics investigator who continued to use civil asset forfeiture even while questioning the case of the car held ransom. The practice designed to hamstring drug kingpins during the days of Ronald Reagan isn’t so virtuous, he said.
“This practice has now morphed into something evil, something more devastating to the average citizen,” Franklin said, calling for a conviction requirement. “That’s justice, that is our responsibility and that is in line with our Bill of Rights.”
Story by Andrew Staub for the PA Independent