The Reports of Civil Asset Forfeiture’s Death in Philadelphia Have Been Greatly Exaggerated

Last week, Philadelphia and its district attorney, Larry Krasner, agreed to overhaul the city’s civil asset forfeiture practices after a long history of abuse and subsequent reform efforts thwarted by prosecutors across the state. But no one should be fooled into believing that forfeiture has been “dismantled” in Philadelphia.

For years, the City of Brotherly Love has been in the national spotlight for its aggressive use of civil asset forfeiture — the police practice of seizing private property merely suspected of having a connection to a crime. For decades, the Philadelphia District Attorney’s Office has amplified its budget with millions of dollars each year from forfeiture.

Analyses by investigative journalists and the ACLU of Pennsylvania showed that these forfeiture revenues came mostly from taking small amounts of cash —less than $200 at a time — as well as vehicles and houses from people who had not been convicted of any crime but live in heavily policed communities of color. Because civil forfeiture is not a criminal proceeding, property owners have no right to counsel, and most lose their property by default when they fail to formally respond to the government in court.

Last week, Krasner took important steps toward delivering on his pledge to reform the office’s civil asset forfeiture practices as part of an agreement to settle a 2014 class action lawsuit against the city and district attorney. If approved by the court, the settlement would prohibit the Philadelphia DA’s office from pursuing forfeitures of less than $250 cash, forfeiting property for simple possession of marijuana, or using forfeiture revenues for law enforcement purposes. The city also promised as part of the proposed settlement to create a $3 million fund to compensate innocent victims of forfeiture since 2012.

After years of prosecutors standing in the way of progress, Krasner’s agreement to give up some of his office’s power to use forfeiture was a welcome change of pace. And the city’s efforts to compensate past victims are laudable.

But they’re not enough.

Forfeiture should only be used to take property from people who have been convicted of crimes as part of the criminal process. In criminal proceedings, indigent property owners have a right to appointed counsel.

That’s not the case when forfeiture happens in a civil proceeding. When the property at stake is worth as little as $250, it is simply not rational for most property owners to hire a lawyer to help fight the forfeiture. The odds of winning a case against experienced prosecutors without a lawyer are long.

It’s a sign of progress that Larry Krasner has pledged to diminish the use of civil asset forfeiture. But with the infrastructure of forfeiture still intact, and no policy prohibiting its use by the office, a future district attorney could simply ramp up its use again.

During the Pennsylvania General Assembly’s 2015-2016 session, a broad, bipartisan coalition pushed for legislative reform of forfeiture practices. But the powerful and regressive Pennsylvania District Attorneys’ Association killed the bills, which would have replaced the current system with one where forfeiture would only happen as part of sentencing after a criminal conviction. The bills would also have diverted forfeiture revenues to a general fund to ensure that police and prosecutors did not have a direct financial incentive to forfeit property.

Despite the setback, the ACLU went on to file amicus briefs in forfeiture cases to push back against the government’s expansive interpretation of its forfeiture power. In several important decisions, the Pennsylvania Supreme Court upheld due process and the rule of law and curbed some of the worst prosecutorial abuses of forfeiture.

And in 2017, the ACLU of Pennsylvania, working as part of a local coalition of criminal justice reform advocates, got involved in Philadelphia’s district attorney race. During the primary, the coalition pushed candidates to commit to reversing the prosecutorial practices that have long fueled mass incarceration and wreaked havoc on communities of color. Among other asks, the ACLU pressed candidates to pledge to end the use of civil asset forfeiture without a conviction.

The coalition succeeded in changing the conversation, with every candidate in the Democratic primary adopting at least part of the coalition’s platform. At the same time, the ACLU’s canvassers succeeded in getting out the vote for criminal justice reform — the primary election saw the highest level of voter turnout since 2001. In January 2018, Larry Krasner, a criminal defense and civil rights attorney who ran on a platform of reform, became the city’s next district attorney.

There is no question that a responsible district attorney has the power to curtail some of the most unjust uses of civil forfeiture. But at the end of the day, civil asset forfeiture remains a fundamentally unfair tool that Pennsylvania prosecutors continue to have at their disposal.