How Philadelphia seizes millions in ‘pocket change’ from some of the city’s poorest residents

The Washington Post – by Christopher Ingraham

Each year, Philadelphia cops take millions of dollars in cash from city residents under the state’s civil asset forfeiture laws. Roughly one-third of these residents — 1,500 of them — are never convicted of a crime. And much of their money — about $2.2 million a year — goes directly into the coffers of the Philadelphia district attorney’s office, which oversees the forfeiture process.  

Those are the conclusions of a new report by the American Civil Liberties Union about forfeiture in the city of brotherly love. Civil asset forfeiture allows law enforcement officers to take cash and property from people they suspect of a crime. Because it happens under civil law, cash and items can be confiscated without a criminal conviction, or even a criminal charge. And the standards of evidence are less favorable to defendants in civil courts, making it very difficult to get your stuff back once it’s been taken.

Asset forfeiture laws initially took wing in the late 1980s and early 1990s, atthe height of the drug war. They were conceived as a tool to fight big-time drug kingpins and mob leaders: If you couldn’t make criminal charges stick to a Pablo Escobar-type, at least you could take millions of dollars of proceeds from his drug business.

But the reality of asset forfeiture today is far different, as the ACLU report shows. The group analyzed a random sample of 351 cash forfeitures out of the thousands Philadelphia performed in 2012 and 2013. They found that the typical cash forfeiture wasn’t in the millions of dollars, or even in the thousands: Rather, the median amount seized was $192.

Nearly 60 percent of cash seizures in Philadelphia are for less than $250. Fully one-third are for less than $100. Only 1 in 10 seizures are of amounts greater than $1,000, the ACLU found. These are hardly kingpin-level fortunes.

Instead, the implication is that Philadelphia’s cash forfeiture system is focused primarily on taking petty cash. By contrast, a 2012 Philadelphia City Paper investigation found that the average forfeiture amount in Los Angeles was roughly $25,000. U.S. Justice Department guidelines indicate that cash seizures initiated by the federal government must be for amounts greater than $5,000, unless the seizure is accompanied by a criminal charge, in which case the minimum amount is $1,000.

The ACLU focused exclusively on cash seizures in its investigation, since those seizures account for 92 percent of forfeiture cases in the city. Between 2002 and 2012, Philadelphia seized over $44 million in cash from city residents, according to a separate Institute for Justice analysis. Some may be from, say, street-level drug dealers with the proceeds of a sale or two on them. But in other cases, the ACLU’s numbers show that the seized cash came from people who weren’t convicted of a crime or who were never even charged with one.

“The current system does not do a good job of distinguishing between drug dealers and the innocent people in the neighborhoods being destroyed by drug dealers,” said Molly Tack-Hooper, an attorney with the ACLU of Pennsylvania. “I do wonder how effective this tool is at making it less profitable to sell drugs when the money at stake is such pocket change.”

A map created by the ACLU shows the concentration of forfeitures in Philadelphia neighborhoods. The Kensington area, one of the city’s poorest, is also one of neighborhoods most targeted for forfeiture efforts.

Numerous states and the federal government are considering reforms to civil asset forfeiture laws this year in response to increasing public scrutiny of the practice. Media investigations and lawsuits have raised questions about the practice, which critics characterize as “policing for profit.”

Pennsylvania lawmakers are now considering a bipartisan bill that would reform forfeiture in the state. It would require a person be convicted of a crime in order for law enforcement officers to permanently seize their property — currently, property can be held in perpetuity under civil laws. It would also direct forfeiture money into state and city general funds, rather than to the departments overseeing the forfeitures.

Many of the forfeitures in Philadelphia are never followed by a criminal conviction. In the ACLU’s analysis, eight percent of forfeitures did not result in a criminal charge, 23 percent resulted in a criminal charge that was eventually dismissed, and another nine percent brought a minor conviction for possession or some other charge unrelated to the forfeiture.

In all, 59 percent of cash forfeitures were supported by a criminal charge that would justify the forfeiture in the first place. That suggests that police and prosecutors are casting a broad net in deciding when and how to apply forfeiture, according to the ACLU. 

“Because forfeiture is only authorized when money was derived from or used in a drug transaction, prosecutors’ rationale for forfeiting cash seized from these drug users seems tenuous at best,” the ACLU concludes. “It’s hard to imagine, for example, how the money in the pocket of someone convicted only of drug possession could be the proceeds of that crime, or could already have been used to buy drugs.”

Because the sums are so small, and the expense of getting it back so high, people who’ve had cash taken rarely bother trying to fight the forfeiture. The ACLU found that the typical forfeiture case required the defendant to appear in court four times. Adding up lawyer’s fees and work hours lost, you’re looking at thousands of dollars of expense to contest a forfeiture. When the forfeited amount is just a few hundred dollars, that doesn’t make any economic sense. Most people simply give up.

The Philadelphia district attorney’s office declined an interview request in response to the ACLU report, but it did release a strongly-worded statement condemning the findings: “The ACLU has cynically and falsely claimed the mantle of ‘innocence’ for its attack on the public safety program known as drug forfeiture. Forfeiture is not a criminal process. It is a civil lawsuit, like any case in which someone is sued for causing damage to person or property.”

The statement adds, “If the perpetrator is brought into court in a civil case and he fails to convince the judge, agrees he was wrong or just doesn’t bother to show up he is liable and there will be a civil penalty. That is drug forfeiture.”

But civil liberties groups reject that argument and have pressed to change the city’s practices. The Institute for Justice, a libertarian civil rights group, is leading a court battle over Philadelphia’s civil forfeiture practices. Just last month, a federal judge rejected the Philadelphia district attorney’s request to dismiss a class-action lawsuit filed by the institute against the city’s forfeiture practices.

The 2012 Philadelphia City Paper investigation found that the scale of Philadelphia’s annual forfeiture haul was out of proportion to its overall population, compared with other large cities. Reporter Isaiah Thompson found that Philadelphia took in five times as much forfeiture cash as the city of Los Angeles, despite having a much smaller population.

“Philadelphia is almost in a class of its own as to how it’s conducted its forfeiture laws,” Scott Bullock, a senior attorney at the Institute for Justice, said in an interview. Philadelphia’s practices “really epitomize everything that’s wrong with the civil forfeiture process,” he said.

Bullock says that Philadelphia’s forfeiture efforts are “driven by a very clear profit incentive where the district attorney’s office receives millions of dollars a year [in forfeiture proceeds], and uses it to pay a wide variety of items, including their own salaries.” The 2012 Philadelphia City Paper report found that forfeiture funds were typically split between the District Attorney’s office and the Philadelphia police, “paying for all manner of day-to-day costs, including police overtime.” According to the Institute for Justice, this type of arrangement isn’t uncommon.

But that status quo is now facing challenges on multiple fronts from the Institute of Justice’s lawsuit, and from the reform bill before the state legislature. The ACLU’s Molly Tack-Hooper is confident about the prospects for change. There is “broad bipartisan support for reform” in Pennsylvania, she said. “The only voice we’ve heard against reform is the district attorney’s association.”

Christopher Ingraham writes about politics, drug policy and all things data. He previously worked at the Brookings Institution and the Pew Research Center.

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