HARRISBURG – The Pennsylvania Senate Judiciary Committee today voted to approve amendments to a pending asset forfeiture reform bill that the American Civil Liberties Union of Pennsylvania criticized as “a massive oversell” that does not live up to the sponsors’ promise of “incremental change” to protect Pennsylvanians against unjust forfeiture.
“Civil asset forfeiture has been routinely used in Pennsylvania to take property from people who committed no crime -- mostly poor people and people of color,” said Reggie Shuford, executive director of the ACLU of Pennsylvania. “Today’s amendments gut an excellent reform bill and will allow these abuses to continue.”
Under Pennsylvania’s current civil asset forfeiture laws, law enforcement can take homes, cars, and money it claims is connected to illegal activity without charging or convicting the property owner of a crime. Property owners do not have the constitutional protections they would receive if they had been accused of a crime, including the right to appointed counsel. And proceeds from forfeiture go entirely to the prosecutors and police who make decisions about when and how to pursue civil forfeiture.
Last year, the ACLU of Pennsylvania issued a series of reports that analyzed civil asset forfeiture practices in three counties: Philadelphia, Montgomery, and Cumberland. All three reports found that forfeiture is mostly used to take small amounts of cash from vulnerable property owners who lose their property through “default” without a lawyer and without ever seeing a judge.
Introduced by Senator Mike Folmer of Lebanon County, Senate Bill 869 in its original form required that a person be convicted of a crime before his property can be forfeited and made forfeiture part of the criminal sentencing process, where owners would be represented by counsel. And it removed the direct financial incentive for prosecutors to pursue forfeiture aggressively against the people least able to challenge the forfeiture by diverting forfeiture revenue to the overseeing county’s general fund, like all other forms of revenue.
The amended version of SB 869 passed by the Senate Judiciary Committee maintains asset forfeiture as a civil proceeding where the owners have few procedural protections and all of the proceeds go directly to the law enforcement agencies that make decisions about when and how to pursue forfeiture. The amended bill would also give judges the discretion to appoint public defenders for indigent property owners at civil forfeiture hearings involving real estate, which the Pennsylvania Supreme Court has suggested is already constitutionally required.
Although sponsors touted the amendments as raising the commonwealth’s burden of proof, the amended bill places the initial burden of proof on property owners, most of whom are unrepresented, rather than the government. The amended bill also makes it easier for the government to take property by default without the government ever having to present evidence to justify the forfeiture.
The amended bill would also require prosecutors to report a few more pieces of information about their forfeiture practices each year to the Attorney General than is required under current law, but the amendment specifies that those audits are not public, and does not change the publicly available information about forfeiture practices.
“When you dig into the details of this bill, it becomes clear that it is a capitulation,” said Andy Hoover, legislative director of the ACLU of Pennsylvania. “The people who will primarily benefit from this bill are the prosecutors who can continue to make money off of innocent Pennsylvanians with impunity.”
SB 869 now heads to the Senate floor for consideration.