The DA’s forfeiture apparatus generates a fantastic amount of money. In addition to the more than $6 million the program brings in annually, the DA last reported to the state’s Attorney General a fund balance of over $10 million in 2011. This money is split between the DA’s Office and the Philly Police, paying for all manner of day-to-day costs, including police overtime.
Beyond these generalities, exactly how the proceeds are spent is unclear (see related story). But the money raises issues beyond transparency: While officials from the District Attorney’s Office have long vigorously repudiated the idea that this unit’s purpose is to generate revenue, a multimillion-dollar revenue stream is a powerful incentive to have to ignore.
In 2009, after Mayor Michael Nutter proposed cuts to the DA’s budget and suggested that the office tap its forfeiture funds to help make up the difference, then-District Attorney Lynne Abraham blasted that idea in a speech before Council.
Quoting from Pennsylvania’s forfeiture law, which states that government bodies “shall not anticipate future forfeitures or proceeds therefrom” in adopting budgets, Abraham told Council, “Forfeiture actions must be driven only by legal circumstances, not by economic concerns. … Prohibiting budgetary bodies from considering either federal or state forfeiture to pay salaries or run an office … wisely recognizes that to allow or require law enforcement to depend on forfeiture as its lifeblood is fraught with an inherent and irreconcilable conflict of interest, in which law-enforcement agencies would be turned into overzealous asset bounty hunters, potentially trampling on the rights of innocent citizens in order to balance the budget.”
It was a sentiment that opponents of the asset-forfeiture process would agree with — but, many of them would argue, that’s exactly what’s happening in the Philadelphia District Attorney’s Office already.
“Pennsylvania law has already turned law-enforcement officials into bounty hunters — and placed the pursuit of property over a commitment to the fair and impartial administration of justice,” says Institute for Justice attorney Scott Bullock, who helped author the “Policing for Profit” report.
“If you want to [prevent] law-enforcement officials from anticipating forfeiture revenue, you have to change the law that allows them to profit from other people’s property in the first place.”
The DA’s top officials themselves respond to larger criticisms of forfeiture policy by pointing out that they pursue forfeiture because statute allows them to — and that it is state law, not the Philadelphia DA, that sets terms by which they can proceed. As First Assistant District Attorney Ed McCann put it in an email to CP, the DA’s duty “is to carry out the law as enacted by the General Assembly. … To the extent your questions concern these underlying policy decisions, they are better directed to the legislature.”
It’s a fair point, says Louis S. Rulli, a professor at the University of Pennsylvania Law School who heads Penn’s pro bono law clinic, which assists people facing forfeiture of their homes. “It’s a bad law,” says Rulli. “In my experience, the people in this unit are good people — they’re doing the best they can.”
But even within the current law, there are alternatives — like Allegheny County’s model of pursuing forfeiture mostly as a criminal, not civil, matter.
“I personally think that it’s criminal forfeiture that’s appropriate, where you have to have a criminal proceeding, the DA has to prevail and only after they have won the criminal case can they seek to have the property forfeited,” says Rulli. “Federal law provides for both — and the district attorneys have their choice. … But most go after civil forfeiture because there are a lot of advantages.”
And, Rulli points out, District Attorney Seth Williams — who has undertaken other reforms — has the power to shape Philly’s forfeiture apparatus, which has gone largely unchanged under several district attorneys, according to his own priorities. Williams, Rulli says, “should set different priorities.”
And even beyond the issues of fairness and due process for respondents are the implications of what such close ties between law enforcement and revenue might mean on the streets of Philadelphia when police are authorized to regularly seize small amounts of cash, even when an arrest isn’t made. While many of the dozens of people CP spoke to about pursuing the return of their cash said that the amounts written on police property receipts were accurate, others (like Rogers) said they were not: that the amount of cash they’d had on them had shrunk when it appeared again on paper.
Several people with whom this reporter spoke — mostly young black men — said that police routinely stopped them without cause, and that having cash seized was, in their communities, a fact of life. Ali Hymen, a young man who’d had cash seized from him (without an accompanying charge), said the same officers who made the seizure had stopped him before. “They always mess with me, always bother me,” he says. “They said, ‘Where’d you get all that money?’ I said, ‘All what money? I work.’”
Mitchell Lawton, 33, whom CP met outside Courtroom 478 trying to reclaim $776 seized from him when he was arrested for drug charges — charges that had long ago been dismissed — says that he’d had about $2,500 on him, from cashing a paycheck, when he was stopped.
“Find a black guy, let him walk around the neighborhood with some money,” Lawton suggested. “He’ll be stopped.”
Michael Diamonstein, an attorney in Philadelphia who has often represented property owners in forfeiture cases, says that while he credits the DA with doing a good job within the context of these laws — especially when it comes to the forfeiture of real estate — the problem Lawton speaks of is real.
“There is a segment of the population that is treated differently” by police officers, says Diamonstein.
One police directive that would seem to be aimed at disincentivizing bad behavior by police officers — a directive, obtained by City Paper, that sets under “guidelines for seizure under drug forfeiture laws” a minimum figure of $1,000 — appears to be routinely ignored. Asked about that directive, Philly Police spokesman Lt. John Stanford said it didn’t apply to (alleged) drug cases (though amounts smaller than $1,000 have been subjected to forfeiture in many cases not involving drugs reviewed by this reporter).
If $1,000 were set as a minimum amount for seizure, the vast bulk of forfeiture cases in Philadelphia — and the vast bulk of the revenue generated from them — would disappear.
Certainly, Andre Rogers — the man stopped with either $280 or $81, depending on whose account you believe — would have welcomed that protocol. This reporter last saw Rogers in October, when he appeared for his second court listing after all, armed with a five-year-old W-2 form and, rather amazingly, a pay stub from the very week before his money was confiscated. He emerged two hours later smiling: The DA had granted him the return of his money. He’d have to go to another courtroom, then to another room in City Hall and then to the police headquarters four blocks away to get it — a process that would bring his total investment in his $81 to around 10 hours.
“They know most people aren’t going to do all that,” he said later over the phone. “I got locked up, had my money taken from me, and I didn’t do anything. I wanted to prove to the city that I wasn’t wrong. I was like, ‘No: I’m right.’”
Dustin Slaughter and Anna Merriman assisted with research for this story.