Pennsylvania Bill Takes on “Policing for Profit” via Asset Forfeiture

HARRISBURG, Pa. (Oct. 23, 2015) – A bill under consideration in the Pennsylvania Senate would reform asset forfeiture laws to prohibit the state from taking property without a criminal conviction in most cases. The legislation also takes on federal forfeiture programs by banning prosecutors from circumventing state laws by passing cases off to the feds.

Introduced in June by Sen. Mike Folmer along with a bipartisan group of cosponsors, Senate Bill 869 (SB869) was given a hearing in the Senate Judiciary Committee this week.

Mike Folmer (R-Lebanon) has proposed changing current law so that a person must be convicted of a crime before his or her property could be forfeited. He also is calling for the forfeited assets to be deposited into the state or county’s general fund, rather than left to law enforcement.

“Our whole legal system was based on, from its very beginning, that you are innocent until proven guilty,” said Folmer.

If passed, SB869 would completely eliminate civil asset forfeiture under state law in most cases and only allow forfeiture via criminal proceedings after prosecutors secure a criminal conviction.

ADDRESSES FEDERAL PROGRAMS

The bill also closes a loophole that allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government under its Equitable Sharing forfeiture program.

"State law enforcement authorities shall not refer seized property to a Federal agency seeking the adoption by the Federal agency of the seized property. Nothing in this chapter shall be construed to prohibit the Federal Government, or any of its agencies, from seeking Federal forfeiture."

In other words. the legislation does not attempt to interfere with federally initiated forfeiture, but bans state and local police from passing off their cases to federal jurisdiction.

The inclusion of provisions barring state and local law enforcement agencies from passing off cases to the feds is particularly important. In several states with strict asset forfeiture laws, prosecutors have done just that. By placing the case under federal jurisdiction, law enforcement can bypass the need for a conviction under state law and collect 80 percent of the proceeds from forfeited assets via the federal Equitable Sharing Program.

California prosecutors and law enforcement agencies have regularly utilized this loophole. As reported by the Tenth Amendment Center, the federal government has inserted itself into the California’s asset forfeiture debate. The feds clearly want the policy to continue.

Why?

We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.

Asset forfeiture laws incentivize “policing for profit” on one hand, and dubious state-federal partnerships on the other.

ADDITIONAL ISSUES

The law would also prevent law enforcement agencies from directly benefiting from the disposition of seized assets. Proceeds from legally seized assets would either be deposited in the state general fund, or in a county operating fund.

University of Pennsylvania law professor Louis Rulli detailed some of the excesses of the current program. He told the Committee a Penn Law Clinic client’s young child had her piggy bank seized by police investigating the alleged wrongdoing of a third person. ‘Her daughter had a birthday party,’ Rulli said. ‘(She) had $91 in the piggy bank.’”

The hearing came just a day after the ACLU of Pennsylvania released a scathing report, titled “Broken Justice,” about forfeiture in Montgomery County. The ACLU found that more than half the property owners facing forfeiture from 2012 to 2014 were African-Americans, who comprise just 9 percent of the county’s population.

“This report shows that the problems with our civil asset forfeiture system aren’t limited to Philadelphia,” said Reggie Shuford, executive director of the ACLU of Pennsylvania. “Our state’s civil forfeiture laws are fundamentally broken and lead to abuse and injustice. These problems can only be fixed with statewide legislation.”

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SB869 will need to pass the Committee by majority vote before moving on to the full Senate.