Law Review: Loss of assets shines light on civil forfeiture

At once tidy and stalwart, but pockmarked, too, with its share of boarded-up homes, Elizabeth Young's neighborhood in the Cobbs Creek section of West Philadelphia is the epitome of urban grit.

No one would mistake this tough patch of the city for a hotbed of real estate action. And yet the District Attorney's Office stands to make a pretty good return here.

On April 3, 2013, Common Pleas Court Judge Paula Patrick ruled in favor of the D.A.'s Office and ordered Young, 69, a widow active in her church, to turn over her home to the city. The city had arrested her son and another man for the sale of small amounts of marijuana there, and then, under civil forfeiture statutes, moved to seize Young's home.

They were able to do this even though Young had never been accused of a crime, much less convicted. The loss of the home is no small thing, say her lawyers. She has been forced to stay with relatives. The house was appraised at $54,000, and it was her main asset.

That and her 1997 Chevrolet Venture minivan. The D.A.'s Office took that, too.

Young's case is now on appeal before Commonwealth Court. A three-judge panel originally heard the case in October, but in a sign of how seriously the court views the constitutional issues implicated by the seizure, a majority of its 11 justices decided to rehear the matter in May. It is expected to rule any day now on whether the seizure violated Young's constitutional protection against excessive fines under the Eighth Amendment.

Young's lawyers at the firm of Ballard Spahr, Jessica Anthony and Jason Leckerman, have no quarrel with the city's aggressive posture toward drug dealing. They say the concern is that in his zeal to push back against drug dealers, District Attorney Seth Williams is subjecting people to exceedingly harsh punishment for crimes that someone else committed.

In fact, under the law, there doesn't even have to be an underlying conviction for a civil forfeiture action to proceed.

"Civil forfeiture punishes property owners for someone else's wrongs," said Anthony. "That means individuals can lose their homes because a family member, friend, or even a stranger has been accused of using, storing or selling drugs in their home, even if no one gets convicted for the crime. The loss of one's home . . . is a harsh punishment."

Williams did not respond to requests to be interviewed for this column. But his spokeswoman, Tasha Jamerson, said civil forfeitures are an important tool in the fight against drug trafficking. Overall, the city seized 20 homes in 2013; it forced the sale of eight more, splitting the proceeds with the homeowner. The targets of such actions are given multiple opportunities to end the illegal activities, and the D.A.'s Office only moves to seize properties after repeated efforts to persuade the homeowner, Jamerson said.

According to the D.A.'s court filings, Young was told by the police about her son's marijuana dealing, but failed to stop him. Moreover, once the D.A.'s Office moved to seize the property, on the 400 block of South 62d Street, it offered to settle.

"Although the claimant [Young] was not charged, she was not an innocent owner," the D.A.'s Office said in an appeals brief. "The trial court found that she should have known about the illegal drug sales and tacitly consented to them."

Anthony said the settlement terms, along with the seizure process, were manifestly unfair. In civil forfeiture, unlike in criminal cases, the burden of establishing innocence is on the accused. Moreover, Young claims not to have known about her son's drug-dealing activities, and once she was told by the police, did not believe them. Since she never was charged with a crime, much less convicted, she disputes as a baseline principle that Williams has the right to take her house. Her son, Donald Graham, pleaded guilty to possession and sale of marijuana and was sentenced to 11 to 23 months of house arrest.

Another man was accused of selling marijuana at the house, where slightly over a pound of marijuana was found during a search, but the Ballard lawyers say the case is tainted because one of the officers involved in the arrest has pleaded guilty himself to charges stemming from a scheme to plant drugs on a suspected dealer.

The D.A.'s Office may have a point that Young had knowledge. During one search of the home, police found a scale, plastic bags, and a small amount of marijuana in the dining room. If these facts are true, it strains the imagination to conceive how the drug activity escaped Young's notice. But Anthony, noting that Young had been in and out of the hospital at the time, says that is not the point. Knowledge of a crime is not necessarily a crime. Even if Young knew about the drug activities, which she disputes, she is being punished as if she were a willing participant.

The litigation over Young's unoccupied house and car is not happening in a vacuum. All across America, such civil forfeiture actions, born of politicians' and law enforcement's urgent focus on drug trafficking, have triggered pushback as people with no criminal convictions have had their properties seized.

Young is lucky in that she has lawyers from a prominent firm representing her pro bono. But the targets of seizure actions most often are people of modest incomes who don't have access to good legal advice, said Louis Rulli, a professor at the University of Pennsylvania Law School, and a nationally recognized expert on civil forfeiture.

Rulli says the concern, beyond the potential breaching of constitutional rights, is that the forfeitures can create a perverse incentive for law enforcement to target people simply to get hold of their assets.

"The fact is we are in tough financial times and forfeiture is raising millions," Rulli said. "What we see is the use of civil forfeiture against innocent individuals who own property."