After "they came in," Robert recalled, "they made me go down to the basement," "put a gun to the back of my head," and "said 'open the safe.'" When Robert did not do so immediately, one of the men "poked me with the gun and said, 'open the safe,' then hit my head against the frame of the door," Robert reported. "I really thought they were going to shoot me."
That sounds like a robbery, because it was: Once the safe was open, the armed intruders, who were Philadelphia cops, took Robert's legally registered gun. But that theft was perfectly legal under Pennsylvania law, which allows police and prosecutors to seize property they allege is connected to criminal activity, keep it unless the owner mounts a successful legal challenge, and use the proceeds to augment their budgets.
"Robert" is the pseudonym of a man who was caught up in Philadelphia's notorious civil forfeiture program, which ended in 2018 as a result of a 2014 class action lawsuit filed by the Institute for Justice (I.J.). The organization, which frequently represents forfeiture victims, recently surveyed 407 of the 30,000 people whose property was seized under Philadelphia's program. The results, summarized in a new report by I.J.'s Jennifer McDonald and Dick Carpenter, underline several glaring problems with civil forfeiture, which effectively gives law enforcement agencies a license to steal.
Policing for Profit
Under Pennsylvania law and the laws of most other states, police can seize property based on "probable cause," which in practice may amount to nothing more than a bare allegation that it was somehow involved in criminal activity. When they seize cash, for example, cops often use boilerplate language vaguely suggesting that the money either came from the sale of illegal drugs or was intended to purchase them. Pennsylvania law enforcement agencies can keep 100 percent of forfeiture proceeds, which gives them a strong incentive to target people who are unlikely to fight back effectively.
Petty Seizures Predominate
In the I.J. survey, the median value of seized items, which included cash, cars, and other personal property, was just $600. More than two-thirds of seized items were valued at $1,800 or less. The median value of all property seized in a single case was $1,370.
Cash seizures, which happened in nearly two-thirds of the cases included in the survey, involved amounts as low as $25. The cops even took "a cologne gift set worth $20" and a pair of crutches. Such petty greed is par for the course with civil forfeiture, which in other states has led police to seize small sums of cash and decidedly nonluxurious possessions such as cellphones, ladders, weed cutters, leaf blowers, soccer equipment, and children's car seats.
The details of Philadelphia's seizures, which are similar to the results of prior research in other jurisdictions, show how absurd it is to maintain that civil forfeiture is primarily about confiscating the ill-gotten profits of drug "kingpins" or other big-time criminals. The I.J. survey indicates that forfeiture cases in Philadelphia generally involved people who either were entirely innocent or had committed minor offenses such as drug possession or traffic violations.
Challenging a Forfeiture Is Difficult and Expensive
In three-quarters of the cases covered by the survey, owners were either never arrested, never charged, or never convicted. Yet while most of the respondents (72 percent) tried to recover their property, only 43 percent of them succeeded. Overall, I.J. reports, "more than two-thirds (69%) of all Philadelphia forfeiture victims never got their property back."
Defenders of this system argue that failing to challenge a forfeiture is an implicit admission of guilt. And since an "innocent owner" can seek the return of his assets, forfeiture fans maintain, unsuccessful challenges show police are taking property from the right people for the right reasons. But given the reality of the legal process, which is rigged against owners from beginning to end, those assumptions are unwarranted.
Forty-three percent of respondents said they had hired lawyers to help them get their property back, at a median cost of $3,500—two-and-half times the median forfeiture value. Owners of seized property, unlike criminal defendants, have no right to publicly funded representation, and in Philadelphia even owners who successfully challenged forfeitures were not compensated for their legal expenses. The cost of hiring an attorney therefore was a daunting barrier, especially for people of modest means who would have had to spend more on legal fees than their assets were worth.
Unsurprisingly, the people who hired lawyers were challenging forfeitures with unusually high values: a median of $4,765, compared to $1,700 for owners who tried to get their property back without professional assistance. Given the typical value of seized property, it often makes more sense to give up than to expend time, effort, and money on a challenge that is apt to fail, regardless of whether the owner actually committed a crime.
Owners who nevertheless tried to get their property back faced additional barriers. "The police buried me in paperwork," one respondent said. "I was so overwhelmed, and my lawyer told me that it would cost too much money to get anything resolved anyway."
Two-thirds of respondents "did not receive any information from police about how to begin the process of getting their property back." Fifty-eight percent of respondents said they were not even given a receipt for their property—a crucial piece of evidence that shows exactly what was taken, which is especially important when police seize cash. Owners who had receipts "were eight times more likely to get their property back than those who did not."
One respondent said cops seized $5,000 in cash from his business but reported only a few hundred dollars. "There was no record," he wrote. "We did tell a lawyer about it but figured forget it….It's your word against their word. They took our cameras, too, so you have no proof….What they're doing is like robbery. They took [our money] and didn't report it and there's no one to complain to."
Even owners with better documentation had to press their claims in Courtroom 478 at Philadelphia City Hall, where the hearings were run by local prosecutors with a vested interest in keeping what cops took. "The Philadelphia District Attorney's Office frequently spent the millions it garnered in forfeiture proceeds on the salaries of the prosecutors who ran Courtroom 478," I.J. notes. "Between 2002 and 2014, Philadelphia's spending from forfeiture funds on salaries was nearly twice that of all other Pennsylvania district attorneys combined."
Owners who claimed they were not aware that their property had been used for illegal purposes had to prove their innocence—the opposite of the presumption that applies in criminal cases. "Civil forfeiture effectively puts the onus on property owners to prove their innocence and fight for the return of their property," I.J. notes, "and this will inevitably deter valid claims and wind up victimizing innocents." I.J. found that "innocent owner" claims "rarely succeeded." When people's property was seized while it was in someone else's possession, they "were 92% less likely to win their property back compared to people who had property seized from them directly."
Owners who challenged forfeitures typically had to manage multiple court appearances, which is especially difficult to arrange for hourly workers with inflexible schedules. I.J. found that employed owners "were 53% less likely to try to get their property back than those who were unemployed, retired, students, homemakers or unable to work."
Prosecutors frequently made challenges more onerous by repeatedly rescheduling hearings. For respondents who managed to get their property back, the process took nine months on average. Some had to wait years. These delays, which could deprive innocent owners of much-needed cash or their primary means of transportation for extended periods of time, in themselves amounted to punishment of people who may have broken no law. "Of those respondents who ultimately lost their property to forfeiture," I.J. reports, "more than half (56%) were never charged with a crime, and three-quarters were never found guilty of any wrongdoing."
Forfeiture Victims Are Disproportionately Poor and Black
I.J. found that "just four ZIP codes in the city's center" accounted for 57 percent of Philadelphia forfeitures. The median income in those neighborhoods ranged from $16,000 to $30,000, substantially lower than the citywide median of $45,000. Residents were mainly black or Hispanic. Black residents, who comprise about 43 percent of the city's population, accounted for 67 percent of people whose property was seized.
Compared to Philadelphia's general population, owners of seized property also were more likely to be unemployed and to earn less than $50,000 a year. They were less likely to have college degrees and less likely to own a home. I.J. reports that "survey respondents who earned less than $50,000 a year were 69% less likely to even try to get their property back than those who earned more," while "people without a college degree were 82% less likely to get their property back than those with a degree."
The finding that forfeiture disproportionately hurts members of disadvantaged groups, with is consistent with research in cities such as Chicago and Las Vegas, is not at all surprising. When cops steal people's property, targeting owners who are ill-equipped to mount a successful legal challenge helps maximize their take. And even when the average value of forfeitures is small, they add up.
"From 2002 to 2014," the I.J. report says, "Philadelphia seized and forfeited over $50 million in cash, along with 1,248 homes and other real properties and 3,531 automobiles and other vehicles. Those figures do not include the countless personal items forfeited, such as cell phones, jewelry, clothing or legally registered firearms."
While Philadelphia's forfeiture program was especially awful in several ways, the state law that authorized it remains largely unchanged. In 2017, Pennsylvania legislators raised the standard of proof for establishing that an asset is subject to forfeiture from "a preponderance of the evidence" to "clear and convincing evidence." But they retained the key features that make civil forfeiture such a potent threat to property rights and due process, including a low standard for seizures, a profit motive for police and prosecutors, and a complicated appeal process with weak protections for innocent owners, who have the burden of proving they qualify for an exception.
The vast majority of states operate similar rackets. "Just six states and the District of Columbia direct forfeiture proceeds away from law enforcement, eliminating forfeiture's perverse financial incentive," I.J. notes. "The other 44 states direct some or all proceeds to law enforcement." The federal government and most states "continue to enforce civil forfeiture laws that offer few due process protections and promote policing for profit." Just four states—Maine, Nebraska, New Mexico and North Carolina—"do not permit civil forfeiture under state law," instead requiring a criminal conviction, followed by a judicial determination that the property was connected to the crime.
A word cloud that I.J. produced based on the responses to its survey shows that owners of seized property frequently called the civil forfeiture system "unfair," "frustrating," and "corrupt." Those characteristics, which aptly describe how civil forfeiture works in most of the country, are exactly what you would expect when legislators invite police and prosecutors to pursue profit instead of justice.