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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