Matthew T. Mangino
Pennsylvania Law Weekly
May 12, 2017
Claude-Frédéric Bastiat, a French economist, politician and author, wrote in the mid-19th century that plunder is exercised on a vast scale around the world.
Violence and trickery distinguish plunder from the voluntary, and mutually beneficial, exchange of wealth. There are two types of plunder—"illegal plunder" undertaken by thieves and robbers, and "legal plunder," usually undertaken by the government and officials "legally" exempt from the usual prohibitions against taking other people's property by force.
Legal plunder is alive and thriving in Pennsylvania and across the country in the form of civil asset forfeiture.
In 1986, the Department of Justice's assets forfeiture fund collected an ample $93.7 million in revenue from federal forfeitures. By 2014, annual deposits had reached $4.5 billion—a 4,667-percent increase.
Cash seizures can be made under state or federal civil law. One of the primary ways police departments are able to seize money and share in the proceeds at the federal level is through a long-standing Justice Department civil asset forfeiture program known as equitable sharing. According to the Washington Post, asset forfeiture is an extraordinarily powerful law enforcement tool that allows the government to take cash and property without pursuing criminal charges and requiring the property's owner to prove legal possession of the property.
According to the Justice Institute, Pennsylvania state law enables agencies to retain 100 percent of the value of forfeited property, and law enforcement in Philadelphia took in more than $69 million between 2002 and 2013. The total is composed of more than 1,200 houses, 3,400 vehicles, $47 million in cash, and various other items, such as electronics and jewelry.
Philadelphia spent none of its forfeiture funds on proactive, community-based anti-drug and crime prevention programs, reported the Justice Institute, despite supporters' claims that forfeited funds are essential to community crime prevention efforts.
The public is fed up with the overreach of law enforcement. A new poll commissioned by Fix Forfeiture, the Commonwealth Foundation and the American Civil Liberties Union of Pennsylvania, found that nearly eight in 10 Pennsylvanians believe the current system needs to be overhauled. Seventy-nine percent of Pennsylvania residents agree that current forfeiture laws are in need of reform. An overwhelming majority of respondents—including 75 percent of Republicans and 82 percent of Democrats and 87 percent of independents—support change.
The courts have also taken a swipe at asset forfeiture. The Commonwealth Court has pulled in the reins on law enforcement. In a case involving the state's attempt to confiscate a man's handgun following his conviction for disorderly conduct, the Commonwealth Court was asked to decide the following: Whether the doctrine of common law forfeiture exists in Pennsylvania and can serve as a legal basis to allow the commonwealth to forfeit any property with a "nexus" to a crime absent any statutory authority.
Justen Irland pleaded guilty to the summary offense of disorderly conduct and was ordered to pay a $200 fine, after which he filed a motion for return of his gun. Prosecutors filed a motion for forfeiture and destruction of the gun based on a theory of common law forfeiture, saying it had legal authority to confiscate any property with a substantial "'nexus'" to the crime committed. The Adams County Court of Common Pleas agreed and ordered the gun destroyed.
Irland appealed, argued that common law forfeiture does not exist in Pennsylvania. The court in Commonwealth v. Irland, PICS Case No. 17-0091 (Pa. Commw. Jan. 13), concluded that common law forfeiture, as that concept originated and developed in England, was never incorporated into or became part of our commonwealth's common law tradition. Zack Needles, managing editor of The Legal, wrote in "Common-Law Forfeiture Doesn't Exist in Pa., Court Says," published Jan. 20 in the Law Weekly, "The Commonwealth Court pointed to the state Supreme Court's 1895 ruling in Carpenter's Estate. ... The justices in that case found that neither a son who was convicted of murdering his father nor the son's mother, who was convicted of being an accessory after the fact, forfeited their right to receive a share of the father's estate, despite having committed the crimes with the intent of inheriting the estate."
The high court reasoned that there was no statutory authority for such a punishment.
"The legislature has never imposed any penalty of corruption of blood or forfeiture of estate for the crime of murder, and therefore no such penalty has any legal existence," the Carpenter's estate court said.
The Irland court found, "Based upon our research, the commonwealth's organic law, namely Article 9, Sections 18 and 19 of the Pennsylvania Constitution of 1790, denounces and effectively abolishes any notion of common law forfeiture and that the predominate, if not unanimous, weight of the authority has determined that common law forfeiture never made it across the seas to America. Therefore, absent a statute that specifically authorizes the forfeiture of property, the commonwealth and the courts have no authority to seek and order forfeiture of property."
Now, the legislature is getting into the act. Recently, the state Senate voted 39-10 in favor of a civil asset reform measure known as SB 8. The bill would make moderate changes to the way law enforcement can confiscate property they believe was used in a crime, or represents the fruit of criminal proceeds.
The bill raises the burden of proof for prosecutors seeking to complete the seizure of a person's assets.
Under existing law, a property seizure can turn into a forfeiture if prosecutors meet their burden of a preponderance of the evidence. The new law would require a showing that the property is tied to criminal activity by "clear and convincing evidence."
State Sen. Mike Folmer, sponsor of the legislation said, "No agent of the government should be able to seize an individual's property without the constitutionally protected right of due process and the legislation I've sponsored will ensure these rights are properly protected."
Opponents say the bill doesn't go far enough to fix what they believe is a badly flawed system.
State Sen. Daylin Leach, told the Harrisburg Patriot-News, "It essentially allows civil forfeiture to continue unabated as long as the government does a bit of extra paperwork." •
Special to the Law Weekly Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll," 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino
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