Commentary: Vote 'no' on weakened civil-asset forfeiture bill

By Gaetan J. Alfano,

Deborah R. Gross,

and Mary F. Platt

Over the last few years, we have read reports on the abuses allowed under current civil forfeiture law. For instance, a Somerton husband and wife were kicked out of their home after their son was caught selling drugs outside; the home of two sisters from South Philadelphia was seized after their nephew was arrested for selling drugs; and a 69-year-old retired Amtrak employee had her car and home seized after her son was arrested for selling $190 worth of marijuana.

These stories demonstrate that civil asset forfeiture reform is long overdue in Pennsylvania.

None of these owners was charged with a crime. Yet, current law allowed for law enforcement to seize and sell their property.

In the last decade alone, law enforcement has seized homes, cars, money, and other property worth, by some estimates, more than $100 million from thousands of Pennsylvanians. That money is funneled back to the same law enforcement agencies that seize the property, which is an inherent conflict of interest. This conflict of interest, in turn, undermines the relationship between law enforcement officials and the communities they serve. This relationship is strained enough by recent events. Civil asset forfeiture compounds the problem.

In a criminal case, the defendant has a right to counsel throughout the proceeding. By sharp contrast, there is no right to counsel for the owner of the seized property. Unfortunately, many Pennsylvanians cannot afford to hire counsel or do not know that they need counsel because notice is required to be given only to those in possession, not to those who own the property. As a result, cases are often lost by default, and prosecutors never have to provide evidence supporting forfeiture.

When Senate Bill 869 was introduced last year, it represented real reform that addressed these concerns. The original bill brought asset forfeiture into the criminal process by requiring a conviction before the forfeiture could proceed, compelling the government to show a nexus between the property and the criminal act, and ensuring that the property owner would have a right to counsel. Importantly, the original bill directed proceeds of forfeiture into the commonwealth's General Fund, removing law enforcement's conflict of interest.

On Oct. 20, 2015, then-Chancellor Albert S. Dandridge III provided testimony on behalf of the Philadelphia Bar Association at a hearing of the Senate Judiciary Committee in support of the legislation and urged the committee to right the injustice of civil asset forfeiture by voting in favor of the bill.

Unfortunately for Pennsylvanians, the bill recently has been watered down to remove its key provisions. These amendments keep the asset forfeiture proceeding as a civil action, thus denying a right to counsel for the property owner. The mandate of a conviction or guilty plea as a condition of forfeiture has been eliminated.

In addition, the amended version of the bill keeps proceeds of forfeiture in the hands of the same law enforcement agencies that initiated the actions, thereby perpetuating the conflict of interest.

Many of the practices that Senate Bill 869 was designed to reform - but does not - are the subject of a pending federal class action. A court and jury eventually will pass judgment on these practices. Meanwhile, taxpayers will be on the hook to pay for the defense of abusive practices that the Legislature lacked the collective courage to remedy.

We need to restore the public's confidence and assure that "the system" is not rigged. This amended Senate Bill is not the way and should be revised to incorporate the reforms in the original legislation.

Gaetan J. Alfano is chancellor of the Philadelphia Bar Association. GJA@Pietragallo.com

Deborah R. Gross is PBA's chancellor-elect. DGross@kcr-law.com

Mary F. Platt is PBA's vice chancellor. mplatt@finemanlawfirm.com