This story was made possible by a grant from the Fund for Investigative Journalism.
When Philadelphia Police officers stopped Dwayne Marks as he was driving north on Broad Street near Temple University last year, Marks says he wasn’t particularly worried. Marks, who is a black man in his late 30s from East Mount Airy, has faced drug charges in the past — but he’s straightened up, he says. When the police asked whether he had a criminal background, “I told them, ‘Yeah,’” he recalls. “I told them the truth.”
As he saw it, he had done nothing wrong and had nothing to hide. And so, when police asked to search his truck, Marks said they could go ahead.
He describes the encounter, initially that is, as calm. It was when police found more than $6,000 in cash in his car — money he says was related to a number of rental properties he owns, he says — that things changed.
“They … took me down to the district, handcuffed me, took my money … [searched] my whole truck again. Then they got a dog to sniff my whole truck out — and still didn’t find nothing.” There were no drugs on Marks or on his vehicle; no charges were filed. But the interaction wasn’t over, Marks says: “They got mad. … They said, ‘We’re going to make you go to court for your money, then.’”
Marks would soon find himself sucked into a strange, upside-down corner of the legal system, where the burden of proof would be reversed to rest on the accused, where those opposing him would seem to call the shots — and where the minor matter of his undisputed innocence of any charge would not seem to be a factor.
That police officers regularly confiscate cash from persons arrested in Philadelphia might not come as a surprise. State law allows police to seize money — and other personal property, including cars, guns, even real estate — from suspected criminals, as possible evidence in a criminal trial.
What you might not know is that that money is likely destined to become not just evidence but revenue for the Police Department and the District Attorney’s Office prosecuting the case — long before those alleged drug dealers are ever proven guilty or innocent in court, and often regardless of the outcome of any criminal proceedings.
By way of a process known as “civil asset forfeiture,” carried out in Philly by the Philadelphia District Attorney’s Office, the DA may sue to take ownership of confiscated property and, if successful, keep it.
The law’s intent is straightforward enough: to target drug criminals (and, to a lesser extent, other types of criminals) by going after the proceeds and mechanisms of their crimes, and to use those ill-gotten gains for the benefit of the public.
The implementation, though, is more complicated. In Philadelphia, the law has laid the framework for a civil asset forfeiture program that brings in upwards of $6 million a year from cases against thousands of Philadelphians, with little oversight of how cases are pursued or how profits are distributed. And, as Marks learned all too well, that process has little regard for a property owner’s guilt or innocence.
An investigation by City Paper, assisted by a grant from the Fund for Investigative Journalism, into the Philadelphia District Attorney’s civil asset forfeiture process reveals one of the largest American municipal-forfeiture programs for which City Paper has seen statistics, and one that operates with great efficiency largely by allowing questions of guilt, innocence or whether a crime has even been alleged to come last, if at all.
While the District Attorney’s Office files hundreds of cases each year seeking the forfeiture of real estate, this process is in many ways separate and distinct from the thousands of cases it files against seized currency or cash. It is the latter that brings in the bulk of forfeiture revenue — about $4.5 million — and City Paper focused primarily on currency forfeitures for this story.
CP analyzed records for thousands of forfeiture cases, spent weeks monitoring legal proceedings and spoke with many individuals caught up in the process of attempting to reclaim their property. The picture that emerged was a kind of “seize first, ask questions later” policy in forfeiting individuals’ money. You might think of it as a corollary to the better-known (and controversial) policy of “stop and frisk” that exists here and in other cities. Call it “stop and seize,” a legal dragnet that catches the innocent, guilty and unaccused alike.
The idea that the government can seize “criminal” property without proving a criminal case isn’t unique to Philadelphia. Civil asset forfeiture is based on a legal concept that dates back in America to colonial times, when the British used the principle to seize ships carrying smuggled cargo. The basis was what is known in legal terms as in rem jurisdiction, the concept that a court can exercise power over property itself. Technically, it’s the property — not its owner — that’s being accused of criminality, which means the property can be subject to forfeiture whether or not its owner is ever convicted of a crime.
Until recently in American history, civil asset forfeiture remained a fairly obscure area of the law. That changed in the 1980s, when Congress greatly expanded the powers of the federal government in pursuing forfeiture cases and opened the door for states to follow suit. Many states created or expanded their own forfeiture programs. Pennsylvania was no exception.
Over the past few years, civil asset forfeiture has received increasing attention — and criticism. The Wall Street Journal has recently chronicled the ballooning size and scope of the federal forfeiture program (including actions against property owners who were never charged with crimes), feeding a federal civil asset forfeiture fund that has tripled in size in the last decade. A 2010 report titled “Policing for Profit” by the Institute for Justice, a nonprofit libertarian civil-liberties law firm, attempted to survey the incredible breadth of state and local forfeiture programs, giving each state a grade based on the level of protection state laws afford property owners: Pennsylvania was one of 17 states that got a ‘D’.
But there exists very little hard data on such programs anywhere, including Pennsylvania. As the Institute for Justice report put it, “In most states, we know nothing or next to nothing about the use of civil forfeiture or its proceeds.”
Philadelphia’s civil forfeiture apparatus has been in place under previous district attorneys for the last couple decades, and appears to remain more or less unchanged so far under the new administration of District Attorney Seth Williams. Through an analysis of years’ worth of court records, CP attempted to gain an understanding of Philadelphia’s forfeiture program, and found that, in size, scope and what you might call aggressiveness, it is in a class of its own.
The Philadelphia DA pursues virtually every nickel seized by Philadelphia police officers; it does so without regard to the owner’s guilt or innocence; and it makes fighting to retrieve assests difficult and/or costly enough that few, innocent or not, will ever see their property returned.
Take as a point of comparison Allegheny County, which contains Pittsburgh and is the second-largest county in Pennsylvania (after Philadelphia County). The Allegheny DA has filed roughly 200 civil forfeiture petitions since 2008.
In 2011 alone, the Philadelphia District Attorney filed 6,560 such cases.
It is a scale of magnitude that dwarfs forfeiture operations elsewhere in Pennsylvania — and that brings in substantially more revenue: more than $6 million annually in recent years, an amount equivalent to roughly one-sixth of the entire annual city budget allocated to the Philadelphia DA. Between 2004 and 2009, Philadelphia collected some $36 million via civil forfeiture — double the take of the three next-largest counties combined.
What accounts for the difference? One reason is that forfeiture in Allegheny County is generally pursued as part of the criminal, not civil, process. The county does forfeit currency and other property in thousands of cases each year — but generally does so only after a criminal conviction is secured, says Mike Manko, a spokesman for the Allegheny County District Attorney’s Office. As the role of forfeiture in Pennsylvania expanded, he says, the county’s president judge ordered that forfeitures involving criminal matters be handled in criminal court. One consequence of that decision: “In virtually all cases wherein a defendant is found not guilty of the controlled substance charge(s),” Manko says, “seized currency is returned.” Not so in Philadelphia, where forfeiture is pursued outside and irrespective of the criminal process.