\n\u00e2\u20ac\u0153For me to lose my home,\u00e2\u20ac\u009d she recalled recently, \u00e2\u20ac\u0153for them to take that from me, knowing I had grandchildren – that would have hurt me more than anything.\u00e2\u20ac\u009d And so Bing resolved to do what whatever was necessary to keep the house. <\/p>\n
\nShe had no idea how long and how difficult that fight would be. <\/p>\n
\nOn its face, Bing\u00e2\u20ac\u2122s predicament might seem implausible if not unjust. How could someone who\u00e2\u20ac\u2122s neither accused nor convicted of a crime be forced to give up her property because of another\u00e2\u20ac\u2122s misdeeds? But stories like Bing\u00e2\u20ac\u2122s are increasingly more common as Philadelphia and other jurisdictions have embraced the expansive power of forfeiture as a crime-fighting tool.<\/p>\n
\nThe idea behind forfeiture is simple enough: drug kingpins, embezzlers, racketeers and other offenders should not be able to keep the financial fruits of illegal acts. Prosecutors often ask a judge to seize the money, vehicles or real estate of a person convicted of a crime.<\/p>\n
\nBut authorities can also use civil law to seize assets before the criminal case is adjudicated or, as with Rochelle Bing, even when no charges are brought against the owner.<\/p>\n
\nDoing so offers prosecutors considerable advantages. Unlike the \u00e2\u20ac\u0153proof beyond a reasonable doubt\u00e2\u20ac\u009d required in criminal law, prosecutors seeking civil forfeitures face a much lower standard. Usually, they need only prove that a \u00e2\u20ac\u0153preponderance of evidence\u00e2\u20ac\u009d connects the property \u00e2\u20ac\u201d not its owner \u00e2\u20ac\u201d to a crime. Technically, the property \u00e2\u20ac\u201d not the owner \u00e2\u20ac\u201d is named as the defendant. <\/p>\n
\nBing\u00e2\u20ac\u2122s name, in fact, appears nowhere in the case involving her own home, listed in court filings as \u00e2\u20ac\u0153Commonwealth of Pennsylvania v. The Real Property and Improvements Known as 2544 N. Colorado St.\u00e2\u20ac\u009d<\/p>\n
\nOver the last two decades, forfeitures have evolved into a booming business for police agencies across the country, from the federal Drug Enforcement Administration to small-town sheriff\u00e2\u20ac\u2122s offices. Although there is no single tally of all this activity \u00e2\u20ac\u201c the information is buried in the budgets, court records and annual reports of thousands of individual agencies \u00e2\u20ac\u201d the available data makes clear that billions of dollars in cash, cars, real estate and other assets are being confiscated nationwide every year via civil forfeitures. <\/p>\n
\nOne measure is the growth of a program in which federal law enforcement officials seize property on behalf of local authorities in exchange for a share of the proceeds. In 2000, officials racked up $500 million in forfeitures. By 2012, that amount rose to $4.2 billion, an eightfold increase. <\/p>\n
\nBing is among a significant number of property owners not charged with any crime who lost their home or have battled for years against forfeiture actions. Other similar cases reviewed by ProPublica include an elderly widow, two sisters who shared a house, a waitress and hospital worker caring for two children, and a mother of three whose family wound up homeless. All stemmed from drug charges brought against a family member.<\/p>\n
\nCritics argue that the power to pursue civil forfeiture has been abused by prosecutors and is creating a new class of collateral victims. Often they are minorities like Bing without the financial resources or legal know-how to protect their assets.<\/p>\n
\nAnd prosecutors typically prevail. Of nearly 2,000 cases filed against Philadelphia houses from 2008 through 2012, records reviewed by ProPublica show that only 30 ended with a judge rejecting the attempt to seize the property.<\/p>\n
\n\u00e2\u20ac\u0153On the federal level, you tend to see bigger cases get attention \u00e2\u20ac\u201d kingpins and that sort of thing \u00e2\u20ac\u201d which is what Congress intended with forfeiture,\u00e2\u20ac\u009d says Louis Rulli, a law professor at the University of Pennsylvania and director of its civil legal clinic, which does some pro bono work for homeowners facing forfeiture.<\/p>\n
\n\u00e2\u20ac\u0153But coming after the parents and the grandparents, who have nothing to do with it?\u00e2\u20ac\u009d he says. \u00e2\u20ac\u0153The logic does not hold up to me. The folks we\u00e2\u20ac\u2122re talking about have usually owned their homes a long time. They\u00e2\u20ac\u2122re paid up on their homes; they\u00e2\u20ac\u2122re good residents of Philadelphia.\u00e2\u20ac\u009d<\/p>\n
\nRulli worries, too, about the effect on poor and minority residents. \u00e2\u20ac\u0153If one sits in court and watches,\u00e2\u20ac\u009d he says, \u00e2\u20ac\u0153you will see a disproportionate impact on African Americans and Latinos.\u00e2\u20ac\u009d<\/p>\n
Philadelphia Freedom?<\/h2>\n
\nThe Philadelphia DA\u00e2\u20ac\u2122s office defends forfeiture as a tool for the public good. In the case of forfeited houses, that means protecting neighborhoods from \u00e2\u20ac\u0153nuisance properties\u00e2\u20ac\u009d which serve as a base for illegal activities.<\/p>\n
\nIn a statement, the DA\u00e2\u20ac\u2122s office said that its goal in forfeiture actions was \u00e2\u20ac\u0153to establish responsible property ownership,\u00e2\u20ac\u009d not to seize houses. \u00e2\u20ac\u0153In those cases in which the legal owner was not the party arrested for drug dealing and he or she can establish that they had no knowledge of the illegal behavior,\u00e2\u20ac\u009d the statement said, \u00e2\u20ac\u0153the Commonwealth works with them to settle those cases and the property is not forfeited.\u00e2\u20ac\u009d<\/p>\n
\nBut that\u00e2\u20ac\u2122s not how the law looked to Bing and others who\u00e2\u20ac\u2122ve spent years battling the city in court.<\/p>\n
\nRecords show that Philadelphia uses forfeiture on a scale and in a way unlike any other county in Pennsylvania. Since 2008, the next three largest counties in Pennsylvania \u00e2\u20ac\u201c Allegheny, Montgomery and Berks \u00e2\u20ac\u201c have taken fewer than a dozen houses combined, even though they operate under the same state drug laws enabling forfeiture. <\/p>\n
\nBy contrast, the Philadelphia DA\u00e2\u20ac\u2122s office files forfeiture motions on 300 to 500 private residences annually. It seizes and sells as many as 100 or more properties each year, bringing in more than $1 million annually in real estate sales alone. In 2010, the year the DA went after Bing’s house, it acquired 90 houses via forfeiture and auctioned 119 properties for $1.2 million.<\/p>\n
\nThe money went directly to the DA\u00e2\u20ac\u2122s office and to the Philadelphia police department, including the narcotics units involved in raids that resulted in the forfeitures. <\/p>\n
\nForfeiture reports obtained from Pennsylvania\u00e2\u20ac\u2122s Attorney General<\/a> give only a general breakdown of how these funds are spent. The records show that the bulk of Philadelphia\u00e2\u20ac\u2122s forfeiture money goes to \u00e2\u20ac\u0153salaries\u00e2\u20ac\u009d (the report does not say whose), and \u00e2\u20ac\u0153municipal task force support.\u00e2\u20ac\u009d The reports include a line-item for money spent on \u00e2\u20ac\u0153Community Based Drug & Crime Fighting Programs\u00e2\u20ac\u009d and \u00e2\u20ac\u0153Witness Relocation and\/or Protection Expenses.\u00e2\u20ac\u009d In recent years, both of those items read \u00e2\u20ac\u0153$0.00.\u00e2\u20ac\u009d<\/p>\n \nMoney from housing sales in 2010 represented about a fifth of all the DA\u00e2\u20ac\u2122s $5.9 million in forfeiture income that year. The rest was generated by seizure of cash, cars and other property. Last fall, a story by this reporter<\/a> in The Philadelphia City Paper disclosed that the DA\u00e2\u20ac\u2122s office moves to seize virtually every dollar in cash found by police in stops \u00e2\u20ac\u201d even amounts of $100 or less. Under the law, prosecutors need not secure a conviction in the underlying criminal case to keep the cash.<\/p>\n \nThe money raised through forfeiture is handled outside the city\u00e2\u20ac\u2122s budgeting and appropriations processes. The law requires only that it be used to enforce Pennsylvania\u00e2\u20ac\u2122s drug laws. Critics and experts who study the issue say that gives prosecutors a powerful motive to step up the pace of forfeitures.<\/p>\n \n\u00e2\u20ac\u0153The idea that law enforcement can raise money on its own, through this self-help practice of forfeiture \u00e2\u20ac\u201d it\u00e2\u20ac\u2122s subversive to the idea of democratic accountability and rule of law,\u00e2\u20ac\u009d said Eric Blumenson, a research professor of law at Suffolk University. <\/p>\n \nBlumenson has criticized the reliance on forfeiture, saying it prompts law enforcement officials to over-emphasize drug prosecutions at the expense of other crime-fighting. <\/p>\n \n\u00e2\u20ac\u0153Prosecutors and police are only too happy to use forfeiture, because it fills their coffers. And why would they stop? They\u00e2\u20ac\u2122ve become dependent \u00e2\u20ac\u201d you can look at it as an addiction by itself,\u00e2\u20ac\u009d Blumenson said. <\/p>\n Prosecutors and police view the issue differently. In an interview last year, officials from the Philadelphia DA\u00e2\u20ac\u2122s office last defended the practice as a means of improving civic life. <\/p>\n \n\u00e2\u20ac\u0153Everything is approached from a public safety perspective,\u00e2\u20ac\u009d said Beth Grossman, who heads the forfeiture unit. \u00e2\u20ac\u0153You have people suffering on their blocks, where their homes are, because of drug-dealing properties. And it\u00e2\u20ac\u2122s not fair.\u00e2\u20ac\u009d <\/p>\n \nEvery weekday, Courtroom 478 in Philadelphia\u00e2\u20ac\u2122s City Hall fills with people \u00e2\u20ac\u201d most are poor, black and Latino \u00e2\u20ac\u201d trying to get back seized property. An administrative judge presides, interacting entirely with assistant district attorneys, who effectively run the show. Some property owners are represented by a lawyer; most are not. Many have been there before, often a dozen or more times, only to have their cases rescheduled over and over. Some have spent years in legal limbo until the case is decided, even longer on appeal.<\/p>\n \nAccording to multiple accounts, Tracy Clements was sitting on the sofa on the first floor of her North Philadelphia row house on April 21, 2010, when her brother, William Clements burst in followed by police in hot pursuit. William Clements was arrested and convicted seven months later on drug-related charges. <\/p>\n \nNeither Tracy, 49, who worked on an assembly line and cared for a son in the house, nor her sister, Sheila, 56, who worked for the IRS and was out of town visiting a daughter at Penn State, were charged with a crime. The two had inherited the house from their mother when she died in 2008. They had played there as children. When their brother William was released from prison, according to their attorney, Jonathan Freedman, they refused to let him live there again.<\/p>\n \nIn the meantime, they were served a notice of forfeiture from the DA\u00e2\u20ac\u2122s office. \u00e2\u20ac\u0153We had to appear 17 times in court,\u00e2\u20ac\u009d their attorney, Jonathan Freedman, said in an email. \u00e2\u20ac\u0153Had I charged the clients a merely reasonable fee it would have cost them more than the house is worth!\u00e2\u20ac\u009d<\/p>\n \nThe sisters ultimately had their day before a judge. The Hon. Rayford Means, Jr., denied the DA\u00e2\u20ac\u2122s motion, saying, \u00e2\u20ac\u0153They\u00e2\u20ac\u2122re innocent owners. They knew nothing about the drugs, had nothing to do with the transaction.\u00e2\u20ac\u009d<\/p>\n \nThe DA disagrees, and has appealed, arguing that at least one of the sisters, Tracy, was home during the drug transactions on the porch, and must have known they were occurring. Prosecutors argue that she turned a blind eye to the crimes. The DA cited policy testimony indicating that a mirror with cocaine residue was found in her bedroom, though Tracy Clements testified in court that she knew nothing about the mirror and that it hadn\u00e2\u20ac\u2122t been in her room when she left for work that day.<\/p>\n \nThe Clements sisters, at least, had professional legal representation; many facing forfeiture do not. <\/p>\n \nUnable to afford an attorney, Takeela Burney chose to fight the forfeiture of her house alone after her son was arrested on May 6, 2010, for a single sale of $20 worth of cocaine from the house. <\/p>\n \nOver the course of the next two years, Burney would appear several times in court in an effort to save her house.<\/p>\n \nBecause many real estate forfeiture cases are resolved through deals with prosecutors, most of the homeowners contesting their forfeiture cases never appear before a judge. <\/p>\n \nBurney, however, eventually appeared as her own lawyer before Judge Paula Patrick, on May 13, 2012. When a prosecutor called a Philadelphia police officer as a witness, Burney didn\u00e2\u20ac\u2122t seem to know what to do. Rather than cross-examine the officer, she attempted to explain her side of the story to Judge Patrick, court records show. <\/p>\n \nPatrick said \u00e2\u20ac\u0153that it was not her turn to tell her story,\u00e2\u20ac\u009d according to an appellate court\u00e2\u20ac\u2122s summary<\/a> of the case. When asked if she had any questions for the officer, she answered, \u00e2\u20ac\u0153Not at this time,\u00e2\u20ac\u009d as if she\u00e2\u20ac\u2122d have another chance to challenge the testimony. Judge Patrick granted the DA\u00e2\u20ac\u2122s motion for forfeiture.<\/p>\n \nAt the very last moment, Burney contacted the Philadelphia Volunteers for the Indigent Program, a legal aid group which agreed to take on her case. Burney\u00e2\u20ac\u2122s attorney, Matthew Lee, filed a brief arguing that his client had never been informed of her right to a jury trial and that a lawyer should have been appointed for her. <\/p>\n \nAn appeals court blocked the forfeiture, ruling that Burney deserved to know of her right to a jury trial. The judges did not address the question of whether Burney was entitled to a court-appointed lawyer. <\/p>\n \nWriting for the majority, Judge Renee Cohn Jubelirer said: \u00e2\u20ac\u0153We understand the importance of denying criminals the proceeds of their crimes and the need to make our communities safer.\u00e2\u20ac\u009d<\/p>\n \n\u00e2\u20ac\u0153However, it is also our obligation to assure that these laudable goals are achieved within constitutional boundaries. These boundaries become more apparent where there is no alleged criminal conduct of the homeowner.\u00e2\u20ac\u009d<\/p>\n \nPhiladelphia is hardly alone in its aggressive pursuit of forfeiture.<\/p>\n \nIn Washington, D.C., the City Council recently held hearings on a bill that would impose new limits on cases arising from cars linked to crimes. For years, the Metropolitan Police Department has seized cars by the hundreds and required owners to post \u00e2\u20ac\u0153bonds\u00e2\u20ac\u009d if they wanted to contest that action.<\/p>\n \nLast May the D.C. Public Defenders Service filed a class-action lawsuit against the city, asserting that the practice violates the U.S. Constitution’s Fifth Amendment\u00e2\u20ac\u2122s guarantees of due process. They argued that car owners who can\u00e2\u20ac\u2122t afford to put up money are deprived of their property without any judicial review. <\/p>\n \nThe D.C. City Council is considering change in the law, including putting the money from forfeitures into the city\u00e2\u20ac\u2122s general fund rather than law enforcement budgets. (The Attorney General for the District of Columbia opposes this bill, as does the city administration).<\/p>\n \nDarpana Sheth, an attorney for the libertarian-leaning nonprofit Institute for Justice who testified<\/a> at a recent hearing alongside the D.C. Public Defender Service, endorses that idea. \u00e2\u20ac\u0153Having the people charged with enforcing the law seizing property and benefiting from that property is unconstitutional \u00e2\u20ac\u201c specifically, the concept of \u00e2\u20ac\u02dcneutrality\u00e2\u20ac\u2122 in due process,\u00e2\u20ac\u009d she said. \u00e2\u20ac\u0153They can\u00e2\u20ac\u2122t be neutral if they have a financial stake.\u00e2\u20ac\u009d <\/p>\n \nLast year, police officials in Tenaha, Texas, agreed to various monitoring and reporting conditions after being sued by the American Civil Liberties Union for stopping drivers, mostly minorities, and seizing their cash and other property. Tenaha police often did not charge the motorists with any crime but threatened them with arrest if they didn\u00e2\u20ac\u2122t agree to forfeit their possessions, according to the lawsuit. In settling the case, Tenaha officials denied that the traffic stops were unconstitutional.<\/p>\n \nThe Teneha case drew national attention \u00e2\u20ac\u201c briefly, at least \u00e2\u20ac\u201c to the larger issue of forfeiture. But the revelations underscored how little is known about forfeiture practices nationwide.<\/p>\n \n\u00e2\u20ac\u0153The problem is when police departments are able to seize assets in hundreds of thousands of dollars \u00e2\u20ac\u201c they\u00e2\u20ac\u2122re going to,\u00e2\u20ac\u009d said Vanita Gupta, an attorney with the ACLU. \u00e2\u20ac\u0153I worry with the Tenaha case that people will think, \u00e2\u20ac\u02dcOh that\u00e2\u20ac\u2122s just Tenaha.\u00e2\u20ac\u2122\u00e2\u20ac\u009d<\/p>\n \n\u00e2\u20ac\u0153Every police department in Texas is pocketing money from forfeiture,\u00e2\u20ac\u009d she said. <\/p>\n \n(Gupta has a point. Data compiled by the Institute for Justice, which has been a vocal critic of forfeiture, shows that 759 law enforcement agencies in Texas alone reported proceeds from forfeiture in 2008, the most recent year that data was available.)<\/p>\n \nSpurred by similar reports of the abuse in the late 1990s, former Rep. Henry Hyde, R-Ill., held a series of hearings on forfeiture, prompting the passage of the Civil Asset Forfeiture Reform Act of 2000.<\/p>\n \nThe law addressed several key shortcomings in federal forfeitures, providing \u00e2\u20ac\u0153innocent owners\u00e2\u20ac\u009d with a defense against being punished for the crimes of a relative or friend. It also provided for the appointment of an attorney when a homeowner faced the loss of his or her primary residence and was too poor to afford legal help.<\/p>\n \nThose reforms did not extend to the local level, where forfeiture is often governed by state laws. <\/p>\n \nIn 2010, the Institute for Justice released a report entitled \u00e2\u20ac\u0153Policing for Profit,\u00e2\u20ac\u009d<\/a> which represented one of the first attempts to catalogue each state\u00e2\u20ac\u2122s laws regarding forfeiture. It found that most offered minimal protections to property owners. <\/p>\n \nNorth Dakota, for example, is among the few states that impose limited restrictions on the practice, prohibiting forfeiture of a home co-owned by someone not accused of a crime. <\/p>\n \nCritics have been pushing local legislators to enact additional rules.<\/p>\n \nForfeitures in cities like Philadelphia and Washington, D.C., are conducted through civil laws. One way to eliminate the inequities of that system would be to conduct property seizures only through parallel laws in the criminal code. <\/p>\n \nSuch laws come into play only after an accused criminal has had his or her day in court. The ACLU\u00e2\u20ac\u2122s Gupta said this would rule out one of the more unfair results of the civil cases, which is that people are arrested, lose their property and are then ultimately acquitted on the criminal charges.<\/p>\n \n\u00e2\u20ac\u0153There are a few jurisdictions where they use criminal, not civil forfeiture \u00e2\u20ac\u201c meaning they\u00e2\u20ac\u2122ll still seize assets, but once someone is convicted,\u00e2\u20ac\u009d Gupta pointed out. \u00e2\u20ac\u0153It begs the question, why do we use civil forfeiture at all?\u00e2\u20ac\u009d <\/p>\n \nThe courts of Allegheny County, Pa., have answered that question, requiring local judges to pursue property seizures in most cases through the state\u00e2\u20ac\u2122s criminal statute and then only after the person involved in the case is convicted. That practice began under the late Judge Robert Dauer, president judge in the county\u00e2\u20ac\u2122s trial courts, and continues to this day. In 2009-2010, the county did not seize a single house<\/a>.<\/p>\n \n\u00e2\u20ac\u0153Our policy was we had to have a conviction and it had to make some reasonable sense why we were going after forfeiture,\u00e2\u20ac\u009d recalls Pennsylvania Superior Court Robert Coville, who headed up the Allegheny County District Attorney\u00e2\u20ac\u2122s office for 21 years. <\/p>\n \nCoville says that as DA he supported using criminal, not civil, forfeiture as a matter of principle.<\/p>\n \n\u00e2\u20ac\u0153It\u00e2\u20ac\u2122s based on fairness,\u00e2\u20ac\u009d he says. \u00e2\u20ac\u0153I would be very restrained as a prosecutor or a solicitor for the city, going in on the theory of an allegation or the presumption of something we don\u00e2\u20ac\u2122t have \u00e2\u20ac\u201c namely, a criminal conviction against the owner for some kind of illegal conduct.\u00e2\u20ac\u009d<\/p>\n \nCoville declined to comment on the specifics of this story, as legal issues around forfeiture very well may come before him in his role as an appellate judge. But speaking from his experience as a former county prosecutor, he said he is troubled by the idea of supplementing police and prosecutor budgets with money from forfeitures.<\/p>\n \n\u00e2\u20ac\u0153I can understand why someone would want to do that in this day and age,\u00e2\u20ac\u009d he said. But \u00e2\u20ac\u0153is there an incentive for police and prosecutors to go after property only for the value? That gets into a whole other bag of issues.\u00e2\u20ac\u009d <\/p>\n \nOther legal experts see the right to representation \u00e2\u20ac\u201c especially in cases involving something as important as a home — as the single best way to curb injustices.<\/p>\n \n\u00e2\u20ac\u0153The main defenses to civil forfeiture are called \u00e2\u20ac\u02dcaffirmative defenses\u00e2\u20ac\u2122 \u00e2\u20ac\u201c you must raise them or you waive them,\u00e2\u20ac\u009d says University of Pennsylvania professor Rulli. \u00e2\u20ac\u0153I think lack of counsel is a big deal. Do these people know their rights? Are they learning it from the DA? What is the DA saying to people? Is DA saying you have a right to assert innocent owner?\u00e2\u20ac\u009d<\/p>\n Matthew Lee, the lawyer for Takeela Burney, said the recent ruling that his client was entitled to be informed of her right to a jury trial was a step in the right direction. \u00e2\u20ac\u0153I was hoping that they would say you have a right to a lawyer,\u00e2\u20ac\u009d Lee said, \u00e2\u20ac\u0153but what they did ultimately hold is that these cases are really more like criminal cases than civil cases and that a lot of the constitutional protections in criminal cases should apply.\u00e2\u20ac\u009d <\/p>\n \nRochelle Bing\u00e2\u20ac\u2122s case illustrates the value of legal counsel. Like Burney, Bing couldn’t afford a lawyer herself. She eventually was referred to the University of Pennsylvania Legal Clinic where law students took on her case without charge.<\/p>\n \nBing\u00e2\u20ac\u2122s fight to save her home dragged on for two years and required her or her attorney to appear in court no fewer than 23 times. Finally, prosecutors settled the case, allowing Bing to retain ownership if she agreed not to let her son visit when she wasn\u00e2\u20ac\u2122t home. (Her son, who negotiated a guilty plea to one count of possession with intent to distribute, had already finished serving his sentence he received.)<\/p>\n \nBing said she would have agreed to that condition at the outset.<\/p>\n Isaiah Thompson can be reached at isaiah.thompson@gmail.com<\/a> and @isaiah_thompson<\/a>.<\/em><\/p>\n via ProPublica: Articles and Investigations http:\/\/www.propublica.org\/article\/law-to-clean-up-nuisances-costs-innocent-people-their-homes\/<\/p>\n","protected":false},"excerpt":{"rendered":" by Isaiah Thompson, Special to ProPublica When Rochelle Bing bought her modest row home on a tattered block in North Philadelphia 10 years ago, she saw it as an investment in the future for her extended family \u00e2\u20ac\u201d especially for her 18 grandchildren. Bing, 42, works full-time as a home health assistant for the elderly … <\/p>\nA Lack of Lawyers<\/h2>\n
Practice of Forfeiture is Widespread<\/h2>\n
The Search for a Fairer System<\/h2>\n
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